Keller v. State

662 S.W.2d 362, 1984 Tex. Crim. App. LEXIS 572

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 1984
• Docket: 095-83
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for unauthorized use of an automobile. Punishment, enhanced by two prior felony convictions, was fixed at life. The conviction was reversed by the Court of Appeals, 646 S.W.2d 506 (Tex.App.-Houston (1st) 1982). We granted the State’s petition for discretionary review in order to examine the Court of Appeals’ holding that the trial court erred in excluding the entire testimony of a defense witness following the assertion of the Fifth Amendment privilege by the witness on cross-examination.

In the course of investigating the burglary of a car dealership, Market Street Motors, in which several blank title forms and dealer license plates were taken, officers arrested appellant as he drove a vehicle bearing Market Street Motors license tags into his apartment complex. In response to the officer’s questions, appellant stated he had purchased the automobile and the plates from a friend, and that he had filled out the dealer plates himself. The vehicle which appellant was driving was owned by Roy D. West, who reported it stolen to the police three days earlier, and who testified that he had not given anyone permission to drive the vehicle.

At trial John Daisey was called as a witness by appellant and out of the presence of the jury Daisey was admonished as to his rights under “the Fifth Amendment of the United States Constitution and of the Texas Constitution which prohibits you from being required to give testimony which would be adverse to yourself.” Daisey had been arrested on the same day and in the same apartment complex as appellant, when he was found in possession of a different vehicle reported stolen, also bearing Market Street Motors license tags. At trial, after stating that he understood his rights and wanted to testify, Daisey testified out of the presence of the jury in response to questions by appellant’s counsel, “I sold Mr. Keller [appellant] a ’67 Ford Fairlane ... I gave him a title.”

Daisey further stated on direct that he received seven hundred dollars from appellant for the car. On cross-examination Daisey testified that he presently lived at “T.D.C.”, and that he was there for “auto theft.” When asked “where did you get the car?”, Daisey refused to answer on Fifth Amendment grounds. All of the foregoing transpired out of the presence of the jury. After Daisey invoked the privilege, the appellant asked that he be allowed “to tender into evidence [before the jury] the testimony.” The trial court disallowed the motion and refused to permit appellant to introduce any part of Daisey’s testimony before the jury. The Court of Appeals found that the question to which the witness asserted his Fifth Amendment privilege was collateral to his testimony on direct examination and that the trial court should have granted appellant’s motion to tender the testimony of Daisey into evidence.

The Court of Appeals relied upon United States v. Cardillo, 316 F.2d 606 (2nd Cir.1963), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963); Fountain v. United States, 384 F.2d 624 (5th Cir.1967); and United States v. Ginn, 455 F.2d 980 (5th Cir.1972), which hold that when a defendant is prevented from cross-examining a prosecution witness due to the assertion of a Fifth Amendment privilege, the court need not strike the witness’ direct testimony if the questions asked on cross-examination relate to “collateral” matters.

The problem posed by the instant case differs from the cited federal cases because here, the State was prevented from cross-examining a defense witness due to the assertion of a Fifth Amendment privilege. When a defendant is prevented from cross-examining a prosecution witness, a possible Sixth Amendment violation arises, since the right to cross-examine is “implicit within the right to confrontation provided by the Sixth Amendment to the Constitution of the United States as applied through the Fourteenth Amendment.” Hostetter v. State, 527 S.W.2d 544, 547 (Tex.Cr.App. 1975). The State’s right to cross-examine defense witnesses, on the other hand, is not based upon the Sixth Amendment, but rather is required for the accurate determination of guilt or innocence and in order to prevent fraud upon the court. See Peters v. State, 75 Wis.2d 22, 233 N.W.2d 420 (1975).

Another concern that arises when the State seeks to strike a defense witness’ direct testimony due to the assertion of a Fifth Amendment privilege on cross-examination is the defendant’s Sixth Amendment right to offer the testimony of witnesses in his defense. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Despite these differences, several courts have adopted the analysis of Cardillo, in the situation where a defense witness invokes the Fifth Amendment on cross-examination by the State. See United States v. Frank, 520 F.2d 1287 (2nd Cir.1975), cert. denied, 428 U.S. 1087, 96 S.Ct. 878, 47 L.Ed.2d 97 (1976); State of Wisconsin ex rel. Monsoor v. Gagnon, 497 F.2d 1126 (7th Cir.1974); Commonwealth v. Dwyer, 10 Mass.App. 707, 412 N.E.2d 361 (1980); Peters v. State, supra; cf. State v. Brown, 549 S.W.2d 336 (Mo.1977).

The right of a defendant to present witnesses in his behalf is not absolute, and is subject to “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313 (1973). Thus we held in Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977), that there is no violation of a defendant’s right to compulsory process of witnesses guaranteed by the Sixth and Fourteenth Amendments when the defendant is prevented from calling a witness for the purpose of having the witness invoke the Fifth Amendment in front of the jury.

We hold that the trial court did not abuse its discretion in disallowing the defense witness’ direct testimony when the witness refused to answer questions on cross-examination which were relevant to the subject matter of the inquiry or which related to the witness’ direct testimony. We do not agree with the Court of Appeals that the question asked on cross-examination in the instant case was “collateral” or irrelevant to the issues at trial or to the witness’ direct testimony. A “collateral” question is one which seeks only to test the witness’ general credibility, or relates to facts irrelevant to the issues at trial.

A question which tests the truthfulness of a witness’ testimony by inquiry into the facts and circumstances surrounding the transaction testified to on direct by the witness is not collateral. The question “where did you get the car” in the instant case was relevant to test the truthfulness of the witness’ direct testimony that he sold the car to appellant and gave him a title. The answer solicited might have shown that the witness did not have either possession or title to the car, and thus could not have sold the car to appellant, or it might have shown that appellant had notice that the car was stolen.

When the witness refused to answer a question on cross-examination which was germane to his direct testimony, the trial court was not in error in disallowing the witness’ testimony. Accordingly,¹ the judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed.

1 . The issue treated herein constituted the only ground of error urged on appeal.