Bisby v. State
907 S.W.2d 949, 1995 WL 582463 (1995)
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Rule of Law:
A trial court does not abuse its discretion by allowing a witness to testify under an alternative affirmation acknowledging penalties of perjury, admitting a dying declaration when the declarant's belief of imminent death can be inferred from severe injuries and conduct, admitting prior hostile communications as motive evidence, or excluding attempts to relitigate guilt during the punishment phase.
Facts:
- A.W. Farmer operated a construction business, employing Jerry Lynn Bisby from March or April 1993 until the first or second week of August 1993.
- Bisby walked off the job without providing two weeks' notice or being fired, so A.W. Farmer did not pay him according to company policy.
- In August 1993, A.W. Farmer began receiving phone calls and answering machine messages from Bisby and his common-law wife, Nancy Scruggs, concerning the unpaid money.
- On the morning of October 13, 1993, Bisby asked his brother-in-law, Robert Scruggs, to accompany him to A.W. Farmer’s apartment complex in Haltom City to collect money.
- When A.W. Farmer arrived at the apartment complex in his pickup truck, Bisby exited his car, retrieved a pistol-grip shotgun, confronted A.W., argued with him, began hitting him with the shotgun, and then fired the weapon.
- A neighbor, Jack Ford, witnessed the shooting and saw Bisby fire the gun and drive away.
- A.W. Farmer, severely wounded and bleeding profusely, repeatedly yelled for help, stated he was shot, and complained he could not breathe, also identifying “Jerry Beesley” as his shooter to Ford and another neighbor, Pamela Lawson, before saying he loved his kids and Donna.
- A.W. Farmer was transported to John Peter Smith Hospital where he died from a gunshot wound to the back around 6:45 a.m. that day.
Procedural Posture:
- A jury found Jerry Lynn Bisby guilty of the murder of A.W. Farmer.
- The jury assessed Bisby's punishment at ninety-nine years’ imprisonment in the Institutional Division of the Texas Department of Criminal Justice.
- Bisby appealed his conviction to the Court of Appeals, raising four points of error.
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Issue:
Did the trial court abuse its discretion by: (1) allowing a witness to testify after refusing a standard oath but agreeing to truthfully answer under penalty of perjury; (2) admitting the victim's statements as dying declarations; (3) admitting tape-recorded threatening messages from a third party with appellant's background participation as motive evidence; and (4) excluding appellant's testimony at the punishment phase which sought to relitigate his guilt?
Opinions:
Majority - Livingston, Justice
No, the trial court did not abuse its discretion with respect to any of the challenged evidentiary rulings. First, the trial court correctly allowed witness Jack Ford to testify. Texas Rule of Criminal Evidence 603 and Article 1.17 of the Texas Code of Criminal Procedure require a witness to declare they will testify truthfully by an oath or affirmation calculated to awaken their conscience and impress upon them their duty. An affirmation is simply a solemn undertaking to tell the truth, requiring no special verbal formula. Ford, though refusing a traditional oath, agreed to “accurately and truthfully answer under penalty of perjury,” which the court found to be a sufficient 'solemn undertaking' and a 'serious public commitment to answer truthfully' without transgressing his religious beliefs. Second, the trial court properly admitted A.W. Farmer’s statements as dying declarations. Under Texas Rule of Criminal Evidence 804(b)(2), a statement is admissible as a dying declaration if the declarant is unavailable, believed death was imminent, and the statement concerned the cause or circumstances of impending death. The belief of imminent death does not require a specific statement but can be inferred from circumstances such as the nature of the injury, medical opinions, and the declarant’s conduct. A.W. Farmer’s severe gunshot wound, profuse bleeding, difficulty breathing, inability to move his legs, vomiting blood, repeated cries for help, and his final expressions of love for his children and Donna, all provide sufficient evidence to infer his belief of imminent death. Third, the trial court did not err in admitting the tape-recorded messages from Nancy Scruggs, with Bisby's voice in the background, as evidence of motive. Article 38.36 of the Texas Code of Criminal Procedure permits testimony regarding the relationship between the accused and the deceased and the accused's state of mind. Texas Rule of Criminal Evidence 404(b) allows evidence of 'other crimes, wrongs, or acts' for purposes such as proving motive. Bisby's participation in threatening phone calls to A.W. Farmer regarding unpaid money demonstrated 'ill will or hostility' towards the victim, thus providing relevant circumstantial evidence of a motive for the murder. The court distinguished this from irrelevant threats made by the victim to third parties. Fourth, the trial court correctly excluded Bisby's testimony at the punishment phase. Article 37.07, Section 3(a) of the Texas Code of Criminal Procedure allows evidence relevant to sentencing. However, exonerating evidence or evidence supporting affirmative defenses, which would relitigate guilt or innocence, is not admissible during the punishment phase. Bisby's attempt to testify that he was pressured into covering up for the 'real murderer' was a clear attempt to relitigate his guilt, which had already been determined by the jury, and therefore, was properly excluded as irrelevant to sentencing.
Analysis:
This case clarifies several key evidentiary standards in Texas law. It affirms the flexibility afforded to trial courts in administering witness oaths, emphasizing the substance of a witness's commitment to truthfulness over rigid adherence to specific wording. Furthermore, it reinforces the broad interpretation of 'imminent death' for dying declarations, allowing for inference from circumstantial evidence of severe injury and the declarant's behavior. The ruling on motive evidence underscores the importance of prior hostile acts between an accused and a victim in establishing intent, especially when the accused actively participates in the hostility. Finally, the case provides a clear boundary for testimony during the punishment phase, preventing the relitigation of guilt, which is crucial for maintaining the integrity of the bifurcated trial process.
