Nelson v. State

765 S.W.2d 401, 1989 Tex. Crim. App. LEXIS 15, 1989 WL 4307

• Court: Court of Criminal Appeals of Texas
• Decided: January 25, 1989
• Docket: 0068-85
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The offense is indecency with a child; a jury found appellant guilty as charged and assessed punishment at a term of confinement in the Texas Department of Corrections.

The single issue before the Court involves testimony of appellant as to his pri- or convictions given in a preliminary hearing out of hearing of the jury during the guilt/innocence stage of trial; it was held to enable the trial judge to determine admissibility for purpose of impeaching his defensive testimony to the jury. See Tex. Cr.R.Evid. Rule 104. Finding they were too remote the trial court ruled out the evidence. However, over objection, at punishment it allowed the State to present the testimony through the court reporter reading her notes.

The court of appeals expressly noted appellant’s objections to admitting his earlier testimony; finding that only one of those objections had been raised on appeal, the court addressed it headon, and found it without merit. Nelson v. State (Tex.App. —Fort Worth No. 2-83-315-CR, delivered November 21, 1984), at 3-5.

In his petition appellant specifically advanced reasons for review stated in former rule 302(c)(1), (2), (3) and (6). The State responded, inter alia, that appellant had not shown a valid reason for further review and "given the applicability of the Chavez decision [Chavez v. State, 508 S.W.2d 384, 386 (Tex.Cr.App.1974) ], no further review of Appellant’s complaint is necessary.” We determined otherwise, satisfied that petition and response presented an important question of law for the Court to resolve, so we granted review of the first ground, viz:

“The Court of Appeals erred in permitting appellant’s testimony from a hearing outside the jury’s presence at the guilt-innocence phase of the trial to be introduced at the punishment phase of appellant’s trial before the jury.”

In due course briefs were filed by the parties pursuant to rule 306, and the cause was set for submission on oral argument. In both, appellant relied in part on Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App. 1969), whereas the State adhered to Chavez v. State, supra. Indeed, in its brief the State says “the issue presented” is:

“Should this Court’s decision in Chavez v. State ... also have application to cases where the State introduces the transcript of testimony given by a defendant at the guilt/innocence stage at the punishment stage of the trial?"

Thus the central issue was joined in this Court.

According to the opinion below, appellant’s objection was that “it would be improper to allow the introduction at the punishment phase of testimony which was elicited for the limited purpose of determining whether the convictions were admissible,” Nelson supra, at 3, and the point of error complained that the evidence “resulted from hearings which were held for a limited purpose,” id., at 4.¹ The Fort Worth Court found appellant “took the stand voluntarily ... and there is nothing in the record to show he was on the stand for a limited purpose,” ibid.2 It then articulated the basis for its resolution of the issue thus framed by it, viz:

“The Court of Criminal Appeals has uniformly held that an accused, taking the stand on his own behalf, waives the privilege against self-incrimination so that his testimony may be used against him at a subsequent trial of the same case. Chavez v. State, 508 S.W.2d 384, 386 (Tex.Crim.App.1974). We HOLD the rule also applies in this case to the two separate phages of the trial.... The prior convictions were admissible, absent any objection as to the best evidence of the convictions, and were properly admitted through Nelson’s prior testimony before the court. The first ground of error is overruled.”

Facially that plain holding is “the reason for such decision,” Article 44.24(c), V.A.C. C.P. (repealed). Accordingly, the issue raised by the first ground for review is properly before this Court. The problem is whether the holding below is correct. Therefore, we turn to the merits, and for other reasons will conclude judgments must be reversed.

At the outset, to be observed is that appellant relies heavily on inter alia the opinion on rehearing in Brumfield v. State, 445 S.W.2d 732, at 734 (Tex.Cr.App.1969); in part on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), along with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). However, upon close examination and evaluation, we believe the “limited purpose” doctrine of Simmons and like decisions, state and federal, may well be inap-posite here.

In Simmons, the Supreme Court reasoned that “an undeniable tension is created” when an accused must give up a “benefit” by refusing to testify to gain a “benefit” afforded by another provision of the Bill of Rights; thus its concern “that one constitutional right should have to be surrendered in order to assert another” led the Supreme Court to rule out use of certain testimony of an accused, viz:

“... We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony, may not thereafter be admitted against him on the issue of guilt unless he makes no objection.”

Id., 390 U.S., at 394, 88 S.Ct., at 976.

The “limited purpose” doctrine of Simmons and others was formulated so that an accused is not required to surrender one constitutional right in order to gain the benefit of another.

A hearing held outside presence of a jury by the trial judge, as recommended by Tex.R.Cr.Evid. Rule 103(c), to determine admissibility of testimony proposed to be extracted from an accused on crossexami-nation, is not ipso facto a “limited purpose” hearing in the constitutional sense of Simmons and progeny. For this Court or any other appellate court to find that testimony adduced at any hearing held outside the presence of the jury was given solely for apparent purpose of the hearing, and no other, will not necessarily make that testimony forever immune from adverse use against an accused.

Once he voluntarily takes the stand before a jury to testify in his own defense, that an accused has waived his privilege against selfincrimination is settled. See, e.g., Myre v. State, 545 S.W.2d 820, 825 (Tex.Cr.App.1977). Granting that proposition, because the Court did so in Brumfield, appellant would have the Court reinstate the privilege at a punishment hearing, viz:

“By offering the testimony of Appellant through the court reporter in legal effect the State called the Appellant as a witness against himself at the punishment phase over his objection. * * * * [Caselaw establishes] that the accused can take the stand and testify for a limited purpose, whether the limited purpose is stated or not.... The Court of Appeals clearly erred in failing to reverse the conviction ... for the violation at the punishment phase of the Appellant’s privilege against self-incrimination.” Brief, at 14.

But, unlike Brumfield where the State was permitted to “recall” accused and, over his protest, to “compel” him to testify, appellant leaves unclear the reason there is no waiver in this cause.

Impunity for such an accused who testifies on voir dire examination during the course of the guilt stage must depend upon more than a conclusion that his testimony was given at a hearing limited in purpose; upon more than saying that calling the court reporter to prove up testimony of appellant in the voir dire examination constitutes the functional equivalent of recalling the appellant to testify at the punishment stage; upon more than the right of defendant to choose not to testify at the punishment stage of his trial. There is more.

“... At this point in the development of our adversary system, it cannot be doubted that a defendant in a criminal case has the right to take the witness stand and testify in his or her own defense.”

Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 2708, 97 L.Ed.2d 37 (1987). As the Supreme Court confirms, that right is vouchsafed in several provisions of the Constitution of the United States: Due Process Clause of the Fourteenth Amendment; Compulsory Process Clause of the Sixth Amendment; a necessary corollary to the guarantee in the Fifth Amendment against compelled testimony. Id., at -, 107 S.Ct., at 2707-2708.

Similarly, Article I, § 10 of our own Bill of Rights specifically secures the right of a criminally accused to be heard; the right is logically included in the provision for compulsory process, and is also derived from privilege against giving evidence against oneself; the declaration of § 19, that no citizen shall be deprived of liberty except by due course of law, embraces a right to testify in one’s own defense.

“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.” Harris v. New York, 401 U.S. 222, at 225, 91 S.Ct. 643, at 645, 28 L.Ed.2d 1 (1971). “The choice of whether to testify in one’s own defense ... is an exercise of the constitutional privilege.” Id., at 230, 91 S.Ct., at 648. See Rock v. Arkansas, supra, at -, 107 S.Ct., at 2710. However, under both the federal and state constitutions, once an accused chooses to testify, his exercise of the right is not without limitations, but is subject to such restrictions as are not “arbitrary and disproportionate to the purposes they are designed to serve.” Id., at-, 107 S.Ct., at 2711.

Thus when an accused in a criminal case takes the stand as a witness, he may be impeached in the same manner as any other witness; however, only his character as a witness is involved, not his character as an accused. Ray, Law of Evidence § 643, 1 Texas Practice 571. His character as a witness is put in issue by taking the stand, but it may be impeached by using his “veracity-character” only, except to the extent that “proof of conviction of crime is is permitted.” Ray, supra, § 649, id., at 575. The fact of prior conviction may be proved through the witness himself — providing the crime is not too remote. Ray, supra, § 660, id., at 599; see § 658, at 589 and Tex.R.Cr.Evid. Rule 609(a) and (b).

In the instant cause on specific objection by his counsel the trial judge determined the two convictions recounted by appellant through voir dire examination by the State are too remote, provoking a candid exchange with the prosecutor, viz:

THE COURT: Too remote, both of them.

MR. BALL: The court’s ruling is we can’t ask any of those questions in front of the Jury?

THE COURT: They’d reverse it if you did. That should not be the law because this man has got a bad background and it ought to be admissible. But I’m not on the Court of Criminal Appeals and I don’t want to be.

Are you ready?

MR. BALL: We’re ready.

In Brumfield, after revisiting the “limited purpose” doctrine of Simmons and followings, the Court contrasted “our former system of a unitary trial,” whereby “when an accused voluntarily took the stand he subjected himself to any legitimate cross-examination within the rules of evidence," id. at 735, with changes in the very structure of the system wrought by Article 37.-07, V.A.C.C.P., id., at 737-741; from an interpretation that the latter provided “two separate proceedings” the Court reasoned that “a defendant’s waiver of his privilege against self-incrimination by taking the stand at the guilt stage is limited to that particular proceeding, id., at 741. Further, it believed with a bifurcated trial system the Legislature did not intend “to make the decision of an accused as to taking the witness stand on the issue of guilt a more onerous one than it was under the former Code.” Ibid. Moreover, his earlier waiver of the privilege at the guilt stage “did not include improper cross examination” at the punishment phase. Ibid.³

The central facts in Brumfield are that accused did not testify to any prior convictions during the guilt stage and, in the event, convictions about which he was compelled, over objection, to relate at punishment would have been inadmissible for impeachment at the guilt stage. Although they failed to find a common unifying rationale, all Judges participating in the cause agreed that because proof of historical facts of prior convictions was not admissible under rules of evidence in the first stage, appellant could not be compelled to testify to them in the second.

Here, appellant also testified on guilt, but the thrust of his defensive testimony before the jury was directed solely to refuting incriminatory testimony from the victim. During its crossexamination the State apparently made known to the trial judge that it purposed to explore prior convictions of appellant to impeach his credibility, and requested a hearing to that end outside the presence of the jury — consonant with accepted practice for determining such preliminary questions of admissibility of evidence by the trial judge. Lego v. Twomey, 404 U.S. 477, at 490, 92 S.Ct. 619, at 627, 30 L.Ed.2d 618 (1972); Ray, supra, at § 2, id., at 3. His testimony of historical facts required of him on voir dire examination by the prosecution was inadmissible for its intended purpose; the trial judge sustained his objection, the testimony was not presented to the jury before it returned its verdict of guilt.

Thus while appellant waived his privilege by taking the stand and testifying before the jury, he did not waive the right held in common with all other witnesses to invoke any statute or rule to exclude use of inadmissible evidence against him. As the Court said in a slightly altered context, “His waiver of the self-incrimination privilege did not include improper cross-examination.” Brumfield, supra, at 741. Herein lies a crucial distinction making Chavez v. State, supra, inapposite.

Accordingly, we hold that an accused testifying before a jury on the issue of guilt retains the right to reclaim his privilege to exclude any testimony given by him in a hearing conducted by the trial judge outside the presence of the jury in order to hear voir dire examination by the State to determine admissibility of his own testimony the State proposes to offer against accused, and the trial court rules his testimony inadmissible for its intended purpose and withholds it from the jury. See Tex.R.Cr.Evid., Rule 104(d).⁴

If an appellant may not be “recalled” by the State to testify as to his prior criminal record, the only remaining question is whether presentation of his excluded testimony in some other manner or form becomes admissible at the punishment phase over his objection that his testimony had been elicited for the limited purpose of determining whether prior convictions were admissible to impugn his credibility as a witness at the guilt stage.

On that question, we hold that once a defendant reclaims his privilege to exclude his testimony previously ruled inadmissible for its intended purpose and withheld from the jury on the issue of guilt, then regardless of the manner or form by which the State makes its proffer, the testimony retains its privileged status and must be excluded.

On those holdings, therefore, we reverse the judgments of the Fort Worth Court of Appeals and of the trial court, and remand the cause to the trial court.

TEAGUE, J., concurred and filed opinion in which MILLER, J., joined.

1 . All emphasis is supplied throughout by the writer of this opinion unless otherwise noted.

2 . In PDR and brief appellant states this voir dire examination was conducted on request of the State; in its brief the State says the issue concerns its "use of testimony taken out of the presence of the jury during the guilt/innocence stage[;]" the State asked all questions and appellant answered manifestly for the “limited purpose” of informing the court on admissibility as impeaching his credibility.

3 . The leading opinion by Presiding Judge Onion was supported by the late Judge Morrison; former Presiding Judge Woodley, joined by Judge Belcher, concurred by expressing a view that is germane here, viz:

[T]he defendant was recalled for further cross-examination at the hearing on punishment and testimony was elicited from him which was not admissible and could not have been legally elicited from him or any other witness at the hearing on guilt or innocence, though it was admissible evidence at the punishment hearing.

We properly held on original submission that it was error to permit the state to recall the defendant and require him to give such testimony.

Id., at 742 (emphasis by Judge Woodley).

Because testimony of appellant as to his prior convictions was properly excluded by Judge Gray, we need not concern ourselves about an implied suggestion by Judge Woodley that the result would be different had testimony elicited from accused on voir dire examination been admissible at the guilt stage.

4 . Rule 104. Preliminary questions.

* tfr * * * *

(d) Testimony by accused out of the hearing of the jury. The accused does not, by testifying upon a preliminary matter out of the hearing of the jury, subject himself to cross-examination as to other issues in the case.