Spousal privilege and ­common law marriage

Sometimes defendants will claim common-law marriage so that their girlfriends don’t have to testify against them. Here’s how to determine who’s hitched, who’s not, and whether spousal privileges apply.

It is often said that absence makes the heart grow fonder. A brief read through some steamy jail mail and one might come to the conclusion that this saying was coined by a dejected lover cooling his heels in the local county lockup. It never ceases to amaze me how the possibility of a long prison sentence tends to be the best couples’ counseling that taxpayer money can buy. It is even more true that a brief discussion with a knowledgeable cellmate can lead a dejected lover to suddenly realize, much to everyone’s surprise, that he is bound within the matrimonial chains of a common-law marriage and his “spouse” cannot testify against him. She now holds the keys to his jail cell. Queue the invocation of the spousal privilege!
    While preparing for trial on an aggravated robbery case, my trial partner, Stacey Mathews, and I had the difficult task of defending against just such a claim of spousal privilege based upon the allegation of an informal marriage. Our case was based in large part upon the testimony of the defendant’s girlfriend who was now claiming to be the defendant’s wife and who planned on invoking the spousal privilege at trial. If the court determined that a marriage existed, we would lose the girlfriend’s testimony and several pieces of jail mail, which contained numerous stunning admissions of guilt.
    This article will provide a brief overview of the law, detail our efforts in disassembling what we believed to be a sham marriage, and, we hope, provide the reader with some basic tools to assist in combatting any future unfounded claims of spousal privilege.

Spousal privileges
Spousal privilege plays an important role in preserving the sanctity of marriage and cultivating free communication between spouses, and when legally established, should be vigorously protected. However, it is equally important to protect the institution of marriage and assure that it is not used as a pawn in an attempt to thwart the criminal justice system. “Marriage is more than a contract, it is a status in which stability and permanence are vital, and this is particularly true when dealing with common-law marriages.”1
    Rule 504 of the Texas Rules of Evidence details the “Husband-Wife Privileges.” Contrary to popular belief there are actually two separate forms of spousal privilege.2 The first privilege addresses confidential communications made during marriage3 while the second privilege is testimonial and provides the spouse of an accused with a privilege not to be called as a witness for the State.4 Spousal privileges extend to valid informal marriages.5 “Once a common law marriage has been established it is generally given the same legal significance as a ceremonial marriage.”6 However, both privileges require the existence of a valid marriage.

Confidential ­communications
It is important to distinguish the confidential communications privilege from the testimonial privilege. Rule 504(a) states that “[a] person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person’s spouse while they were married.”7 Communications are confidential if they are made privately by any person to the person’s spouse and not intended for disclosure to any other person.8 “Statements between husband and wife which are overheard by a third person do not come within the privilege,”9 meaning that communications that are witnessed by a third person lose their confidential character. “The confidential communication privilege may be claimed by the person or the person’s guardian or representative, or by the spouse on the person’s behalf. The authority of the spouse to do so is presumed.”10
    However, as with all privileges, there are some exceptions to the rule.11 For the purposes of this article I will focus on two of them. The privilege may not be invoked if the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud.12 Additionally, the privilege does not apply in a proceeding in which the party is accused of conduct that is a crime against the person of the spouse, any minor child, or any member of the household of either spouse or in a prosecution for bigamy.13

Testimonial privilege
The testimonial privilege, in certain situations, allows one spouse to refuse to testify against another.14 This privilege is applicable only in a criminal case15 and is “personal to the witness-spouse; the defendant-spouse may not invoke it on his or her behalf or override its assertion by the witness-spouse.”16 In other words, the defendant may not invoke this privilege and therefore prevent his otherwise willing spouse from providing testimony against him.17 This is distinguished from the confidential communication privilege where either spouse may invoke the privilege.18 The testimonial privilege does not extend to a proceeding in which the party is accused of conduct that is a crime against the person of the spouse, any minor child, or any member of the household of either spouse or in a prosecution for bigamy or to matters that occurred prior to the marriage.19

Our story
On October 5, 2011, a masked robber walked into a local gas station in Taylor, pointed a gun at the clerk, and demanded money. The clerk recognized the masked intruder and immediately began shouting, “I know you, I know you!” As a frequent patron of the gas station—and recognizing that his master disguise had failed—the robber immediately fled the store and returned to his apartment, which was a whopping three blocks away. Upon returning home, the defendant shared important details of the incident with his girlfriend and prepared for his impending arrest. The defendant was arrested the next day and charged with aggravated robbery.
    The defendant spent several months in the county jail while the State and his able defense counsel attempted to reach a resolution on the case. Unfortunately, negotiations faltered and the case was eventually set for a jury trial. When the case was filed with our office we immediately began to monitor the defendant’s jail mail, phone calls, and jail visitations. During this time the defendant and his girlfriend began to communicate both verbally and by mail, and we discovered a letter the defendant had written to one of his children, which stated in part:
I wanna [sic] tell you for myself why I’m in here and not with you, first of all what lead up to me makin [sic] the decision I made was we were finna [sic] loose [sic] our apartment and I didn’t want that to happen to you or your mom or your unborn sister because I love ya’ll [sic]. Secondly I ran into a [store] and pulled out a gun and said give me your money but the guy at the store said I know you so I ran out. I had good intensions [sic] but wrong actions. …
This letter preceded several others addressed to his girlfriend in which he alluded to his involvement in the armed robbery and made similar admissions. In preparation for trial we began to interview witnesses and one day found ourselves meeting with whom we considered to be the defendant’s girlfriend. She appeared to be very cooperative, indicated that she would be truthful if called to testify, never referred to the defendant as her husband, and most certainly did not give the impression that there was any form of marriage between the two. As the case progressed toward trial the jail mail conversations began to center on the need to invoke spousal privilege to prevent damaging testimony during trial. Eventually it was disclosed to the State that an informal marriage existed and the “wife” would invoke the spousal privilege if called to testify during trial.

Disassembling a sham marriage
I have often been told that hindsight is 20/20. I sat and pondered how I had been so naïve to have missed such an obvious evidentiary problem. Eventually my frustration turned to motivation, and my trial partner and I set out to disassemble what we believed to be a sham marriage. Our case relied in large part on introducing the girlfriend’s testimony and, through her, presenting several pieces of jail mail in which the defendant admitted to committing the offense. If the defendant was able to establish the existence of an informal marriage, not only would we lose the girlfriend’s testimony, but we also risked losing the jail mail admissions, as they could conceivably be classified as confidential communications made during the marriage.
    Our first step was to determine how courts have defined “common law marriage.” Common law marriage is codified in the Texas Family Code, which outlines three required elements: 1) the man and woman agreed to be married, and after the agreement 2) they lived together in Texas as husband and wife, and 3) represented to others in Texas that they were married.20
    Whether an informal marriage existed was a question of fact, and as the defendant was the party attempting to establish the existence of an informal marriage, the defense bore the burden of proving the above elements by a preponderance of the evidence.21 Rule 104(a) of the Texas Rules of Evidence notes that “[p]reliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court.” “When the existence of an informal marriage must be addressed as a preliminary issue, the trial court is the sole fact-finder and in that capacity may believe or disbelieve all or any part of any witness’s testimony.”22 Courts have traditionally applied “close scrutiny to claims of spousal privilege based on an informal marriage relationship.”23 We now knew these issues would be determined at a pretrial hearing where the court would determine whether an informal marriage existed and if so, whether the spousal privilege applied.

Agreement to be married
The first element of an informal marriage requires that the parties have some agreement to be married.24 If we were able to demonstrate that the parties never actually agreed to be married, we could negate the first element required of an informal marriage. In researching this element we determined that an agreement to be married requires a showing that the parties “intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be husband and wife.”25 The parties could prove this element by direct or circumstantial evidence and the testimony of only one of the parties “constitutes some direct evidence that the parties agreed to be married.”26 We soon realized that there were only two people who knew if this agreement had been reached and we were not likely to locate any physical evidence to contradict this claim. Thus, we focused our energy in other areas and moved on to the second element.

Cohabitation
In establishing the existence of an informal marriage, the second element of Texas Family Code §2.401(a)(2) requires that the parties live together in Texas as husband and wife. We were aware the defendant and his girlfriend were living together in an apartment on the date on which the convenience store was robbed. A subpoena was issued for the apartment lease and our investigator personally served it on the apartment manager. A review of the lease indicated that the parties moved into the apartment approximately seven months prior to the robbery. We interviewed a friend of the girlfriend and the defendant’s previous employer who both told us the couple had a somewhat rocky relationship that began approximately two years earlier.
    A few months after the birth of their first child, the defendant moved to Taylor from Houston for a short time and then returned to Houston. He eventually returned to Taylor and the two lived with a friend and eventually moved into an apartment on their own. However, we learned the defendant would frequently leave, sometimes for extended periods. In speaking with the local police department we discovered that the girlfriend had filed a missing persons report during one such episode. However, despite evidence the couple had a somewhat rocky relationship with intermittent breaks, we were aware that “cohabitation need not be continuous for a couple to enter into a common-law marriage.”27 Still not having located our smoking gun, we determined to focus our efforts on the third and final element.

Presenting to others
The third element required to establish an informal marriage requires the parties to hold themselves out to others as husband and wife.28 “The cohabitation must be professedly as husband and wife, and public, so that, by their conduct towards each other, they may be known as husband and wife.”29 This element requires that the parties consistently hold themselves out as husband and wife and likewise “occasional introductions as husband and wife are not sufficient to establish the element of holding out.”30
    The defendant’s girlfriend had never represented to us that she was the defendant’s wife and in fact indicated she considered him to be her “baby’s daddy.” Finally, we had something to work with. We knew from prior discussions that the girlfriend was a student at a local college and was receiving state welfare benefits. We immediately issued subpoenas for her college application, financial aid applications, and any documentation relating to her application for state assistance. We obtained the apartment lease and copies of any prior offense reports that related to the parties and all magistration and booking records from the defendant’s prior arrests. We were attempting to determine whether the parties “had a reputation in the community for being married”31 and whether they had “consistently conducted themselves as husband and wife in the public eye or that the community viewed them as married.”32
    The first item of evidence, the apartment lease, appeared to have been filled out by the parties and indicated that they were married. We spoke with the apartment manager who informed us that, during her interactions with the couple, they held themselves out as husband and wife. However, the application and attached documents were inconsistent. At one point the girlfriend used her maiden name and at other points adopted the defendant’s last name. We disclosed this information to defense counsel and provided him with a copy of the lease.
    Continuing our search, we reviewed a prior offense report from June 2010 in which the defendant was charged with assaulting the same girlfriend. The responding officer authored a report in which he listed the defendant as the “common law husband.” However, in reviewing the written statement provided by the girlfriend she clearly referred to the defendant as “her boyfriend.” It appeared that the officer had made the same assumption the defendant was now asking the court to make. Additionally, almost a year later in May 2011, when the defendant was finally arrested on the charge, he indicated on his booking information that he was “single.”
    We located another offense report from when the girlfriend had reported the defendant as a missing person. The initial report taken by the officer again referred to the defendant as the “common law husband.” However, after we obtained the recorded 9-1-1 call, it was clear the girlfriend called to “report her boyfriend missing” and at no time referred to him as her common law husband. This officer had unfortunately made the same assumption as the first officer.
    Determined to demonstrate this was a marriage of convenience, we continued to review the physical evidence. We were able to obtain a copy of the girlfriend’s college application, which was executed approximately two months prior to the robbery. On this handwritten application she noted she was both “single” and “single and pregnant.” This document was filled out using her maiden name and contained her signature. Additionally, the electronic documents that were used to determine her eligibility for student loans reflected her marital status to be “single” and contained a similar date.
    Spurred on by our recent discovery, we continued to gather documents that would demonstrate that an informal marriage did not exist and was simply a ruse to prevent the State from obtaining valuable testimony. The next set of documents we obtained was from the Texas Health and Human Services Commission and related to the girlfriend’s application for state-funded welfare benefits. We discovered an application containing her signature that was executed approximately three months prior to the robbery in which she indicated she was single and the defendant was single, and which specifically listed the defendant as her “boyfriend.” Additionally, we located an application for state welfare benefits executed 12 days after the robbery in which the girlfriend indicated she was single. These documents strongly contradicted the claim that the couple had entered into an informal marriage.
    Although we had accumulated a substantial amount of evidence, we continued to delve through piles of jail mail in search of additional information to support our position. While the couple often assumed the defendant’s last name in their salutations and referred to each other as husband and wife, they were inconsistent and often went from describing their desire to be married in the future to describing how happy they currently were as a married couple. However, one piece of mail summed up the State’s position. The letter was written from the defendant to the girlfriend and ended with the following closure: “Your soon-to-be husband.”
    Despite this discovery, we felt as if we needed a representative of the community who could testify to whether the defendant held his girlfriend out to be his wife. We were aware that “… standing alone, occasional references to each other as ‘husband’ and ‘wife’ and the like are insufficient to establish an informal marriage.”33 The final element of an informal marriage requires both parties to have represented themselves as a married couple.34 We were able to locate the defendant’s previous employer who informed us the defendant worked on and off for him for approximately one year. During this time period he interacted closely with the defendant and specifically noted that the defendant never referred to his girlfriend as his wife. In fact, he noted the defendant consistently held her out to be his girlfriend or “baby mama” but never his wife.
    We were done. We had exhausted significant resources in an effort to demonstrate that the alleged marriage was a sham and a last-ditch effort to prevent incriminating testimony from entering into trial. Our final task was to marshal all of the evidence and present it to the court during a pretrial hearing.

The hearing
In preparation for the pretrial hearing we found ourselves facing an ethical dilemma. As the party wishing to establish the existence of the privilege, the defendant bore the burden to prove the elements of an informal marriage by a preponderance of the evidence. If the defendant did not wish to testify, he would likely be required to elicit the girlfriend’s testimony. Bringing forth such testimony subjected the girlfriend to the possibility of self-incrimination and/or perjury. The evidence we had collected strongly contradicted the claim that she and the defendant were married, and the evidence would establish she had executed government documents and applied for financial assistance as a “single” applicant.
    Understanding our ethical obligations—and in an attempt to avoid any appearance of impropriety—we determined that the best course of action was to request that the court appoint her an independent attorney to advise her of her rights. At the State’s request the court appointed an attorney to represent the girlfriend and the case was reset.
    After meeting with the girlfriend, her attorney requested that the State grant her use immunity in exchange for her truthful testimony. We prepared a use immunity agreement and requested the court execute the document. The girlfriend had now been immunized and the road was cleared for a final hearing to determine whether an informal marriage existed.
    Throughout this process we had kept the accused robber’s defense attorney appraised of the documentation we were recovering and prior to the hearing allowed him to review all of the documents. As the defense bore the burden, counsel began the hearing by calling the girlfriend. She admitted that no legal marriage existed. She testified that “in her heart she felt she was married” but she understood that she was not legally married. On cross-examination, she authenticated the documents we had collected and they were admitted into evidence.
    To establish that the couple had not consistently held themselves out as husband and wife, through cross-examination of the girlfriend, we demonstrated that the couple’s two children were never given the defendant’s last name. In fact, one child was born while the defendant was incarcerated on this charge and still bore the girlfriend’s maiden name. Additionally, the girlfriend admitted she filed her taxes as single, requested student aid as a single adult, and filed for state welfare benefits as a single adult. She admitted that the couple was inconsistent in holding themselves out as husband and wife. The State’s position was bolstered by the admission of the 9-1-1 call where she reported her “boyfriend” missing and testimony supporting these facts. As our last witness we called the defendant’s former employer who was able to provide the court with a clear view as to how the defendant saw the couple’s relationship. The employer testified the defendant never held his girlfriend out as his wife and consistently referred to her as his “girlfriend.”
    The defense put forth a valiant effort in attempting to show that an informal marriage existed and that the witness had simply changed her testimony when faced with the possibility of criminal sanctions. The girlfriend’s mother testified that she considered the defendant to be her daughter’s husband and that the defendant and her daughter held themselves out to others as husband and wife. However, the court was not swayed by this position and later ruled that there was no marriage.
    It had been our firm belief that the alleged marriage was one of convenience that was ordained for the purpose of thwarting the prosecution. However, after listening to the girlfriend’s testimony, I decided that the truth lay somewhere in the middle. Perhaps she did feel in her heart that she and the defendant were married. Perhaps she did have every intention of marrying the defendant at some point in the future. Unfortunately for the defendant, the law does not reward intentions of the heart with a marriage license.
    The spousal privilege is not designed to protect those persons “who are not legally married, nor parties who are unmarried, but who live together and recognize each other as husband and wife.”35 “Merely living together with a person of the opposite sex and having intimate relations with that person do not establish, without more, the relationship of husband and wife.”36 As the Tompkins court so eloquently stated, “a secret common law marriage” does not constitute common law marriage in Texas.37

Endnotes
1 Tompkins v. State, 774 S.W.2d 195, 209 (Tex. Crim. App. 1987) (quoting Welch v. State, 207 S.W.2d 627 (Tex. Cr. App. 1948)).
2 T.R.Evid. 504.
3 T.R.Evid. 504(a).
4 T.R.Evid. 504(b).
5 See Reece v. State, 772 S.W.2d 198 (Tex. App.—Houston [14th Dist.] 1989, no pet.); see also Tompkins,774 S.W.2d at 207.
6 Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.—Houston [14th Dist.] 1993, no pet.).
7 T.R.Evid. 504(a)(2).
8 T.R.Evid. 504(a)(1).
9 Bear v. State, 612 S.W.2d 931, 932 (Tex. Crim. App. 1981).
10 T.R.Evid. 504(a)(3).
11 T.R.Evid. 504(a)(4).
12 T.R.Evid. 504(a)(4)(A).
13 T.R.Evid. 504(a)(4)(C).
14 T.R.Evid. 504(b).
15 T.R.Evid. 504(b).
16 Gibbons v. State, 794 S.W.2d 887, 893 (Tex. App.—Tyler 1990, no pet.); see also T.R.Evid. 504(b)(3).
17 Id.
18 T.R.Evid. 504(a)(3).
19 T.R.Evid. 504(b)(4)(A)&(B).
20 Tex. Fam. Code §2.401(a)(2).
21 Small, et. al. v. McMaster, 352 S.W.3d 280, 282 (Tex. App.—Houston [14th Dist.] 2011, pet. denied).
22 Kennedy v. State, No. 2-07-008-CR, 2008 Tex. App. LEXIS 4607 at *8 (Tex. App.—Fort Worth June 19, 2008, pet. ref’d) (not for pub.).
23 Reece, 772 S.W.2d at 200.
24 Tex. Fam. Code §2.401(a)(2).
25 Small, 352 S.W.3d at 283 (citing Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App.—Houston [1st Dist.] 2001, pet. denied)).
26 Id.
27 Id. at 284.
28 Tex. Fam. Code §2.401(a)(2).
29 Grigsby v. Reib, 105 Tex. 597, 153 S.W. 1124, 1130 (Tex. 1913).
30 Flores v. Flores, 847 S.W.2d 648, 652 (Tex. App.—Waco 1993, writ denied).
31 Small, 352 S.W.3d at 286.
32 Small, 352 S.W.3d at 286 (citing Danna v. Danna, No. 05-05-11472-CV, 2006 Tex. App. LEXIS 2368 at *4 (Tex. App.—Dallas March 29, 2006, no pet.)).
33 Id.
34 Small, 352 S.W.3d at 285.
35 Tompkins, 774 S.W.2d at 209 (quoting Johnson v. State, 122 Tex. Crim 224, 54 S.W.2d 140, 141 (1932)).
36 Id.
37 Id. at 209.