Adrian German v. State

• Court: Court of Appeals of Texas
• Decided: September 11, 2003
• Docket: 03-03-00107-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00107-CR NO. 03-03-00108-CR

Adrian German, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NOS. 9024194 & 9024195, HONORABLE BOB PERKINS, JUDGE PRESIDING

MEMORANDUM OPINION

In cause number 9024194, a jury found appellant Adrian German guilty of two counts

of attempted capital murder and assessed punishment at imprisonment for sixty years. See Tex. Pen.

Code Ann. §§ 15.01, 19.03 (West 2003). In cause number 9024195, the jury found German guilty

of two counts of aggravated robbery and assessed punishment at imprisonment for forty years. See

id. § 29.03. In two points of error, German contends the district court erred by permitting a witness

to invoke the Fifth Amendment privilege against self-incrimination. We will overrule this

contention and affirm the convictions.

German and an accomplice, Mitchell Bond, entered a pharmacy, held the manager

and pharmacist at gunpoint, and stole money and drugs. During their subsequent flight, German

fired shots at two police officers. In his defense, German called as a witness Robert Jordan, a county jail inmate awaiting trial for murder. Outside the jury’s presence, German asked Jordan if he had

shared a jail cell with Bond and if Bond had told him that he, Bond, had forced German at gunpoint

to shoot at the pursuing police officers. On the advice of counsel, Jordan invoked his privilege

against self-incrimination and refused to answer the questions. Jordan’s counsel informed the court

that his client had made several statements under oath to the police, and that he was concerned that

Jordan’s testimony at German’s trial might result in charges of perjury, making false reports, or

obstruction of justice.

German argues that Jordan did not legitimately invoke the Fifth Amendment because

he did not show that his testimony would incriminate him with regard to any offense already

committed. German asserts that Jordan’s concern that his testimony might result in perjury charges

was not a proper basis for invoking the Fifth Amendment privilege. German urges that under the

circumstances, his Sixth Amendment right to call witnesses on his own behalf was violated by the

court’s failure to compel Jordan to testify.

A defendant’s constitutional right to compulsory process must yield to a witness’s

constitutional privilege against self-incrimination. Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim.

App. 1986); Chandler v. State, 744 S.W.2d 341, 342 (Tex. App.—Austin 1988, no pet.). A trial

court cannot compel a witness to answer unless it is perfectly clear from a careful consideration of

all the circumstances that the witness is mistaken in asserting the privilege and that the answer

cannot possibly tend to incriminate the witness. Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim.

App. 1984). When a witness invokes the Fifth Amendment privilege on the advice of counsel, no

further inquiry by the trial court is required. Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App.

2 1972); Suarez v. State, 31 S.W.3d 323, 329 (Tex. App.—San Antonio 2000, no pet.); Chennault v.

State, 667 S.W.2d 299, 302 (Tex. App.—Dallas 1984, pet. ref’d).

In Chandler, the defendant sought to compel the testimony of his accomplice, who

had already been tried and convicted for his role in the criminal incident. 744 S.W.2d at 342. For

this reason, the defendant urged that the witness had no basis for claiming the Fifth Amendment

privilege. Id. We disagreed, holding that the witness’s reasonable belief that his testimony might

expose him to prosecution for perjury was a legitimate basis for invoking the privilege. Id. at 343.

We hold that the district court did not err by refusing to compel Jordan to testify after

the witness invoked his Fifth Amendment privilege on the advice of counsel. The points of error are

overruled, and the judgments of conviction are affirmed.

__________________________________________

Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: September 11, 2003

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