Williams v. State

Court of Criminal Appeals of Texas

Williams v. State

607 S.W.2d 577, 1980 Tex. Crim. App. LEXIS 1458

Court of Criminal Appeals of Texas·Decided November 19, 1980·No. 64493·Published·Cited by 48 cases

Opinion

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction of aggravated robbery. Punishment was assessed at imprisonment for 12 years.

Appellant contends that his right against self-incrimination was violated by the prosecutor’s references to his post-arrest silence. Appellant also contends that the prosecutor improperly bolstered his own witness, misstated the law in his jury argument, and argued matters that were outside the record.

Approximately a week after the commission of the offense appellant was taken into custody. After being informed of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant gave a written statement confessing to the crime. The propriety of the confession is not in issue. At trial, appellant pleaded guilty and elected to have the jury assess punishment. He testified in his own defense. On direct examination by defense counsel, appellant admitted that he committed the offense. He then testified that since his arrest he regretted having committed the crime and having put others in fear of their lives. On cross-examination the prosecutor asked the appellant if, prior to trial, he had contacted any of the people he robbed in order to tell them he was sorry for what happened. During his closing argument to the jury the prosecutor also made reference to appellant’s failure to contact anybody associated with the robbery to say that he regretted having committed the crime. Appellant objected in each instance that the prosecutor’s action violated his right against self-incrimination.

Based on these facts, appellant contends that the prosecutor’s questions and argument conflicted with his constitutional right to remain silent. The Fifth Amendment guarantees an accused the right to remain silent during his trial and prevents the prosecution from commenting on defendant’s exercise of that right. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In the present case, of course, the appellant did not remain silent throughout the criminal proceedings, but chose to testify in his own defense.

Under present federal and state law, once the defendant voluntarily takes the stand before a jury he is subject to the same rules as any other witness; he may be contradicted, impeached, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in his behalf, except when there are overriding constitutional or statutory prohibitions. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 2127, 65 L.Ed.2d 86 (1980); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Sensabaugh v. State, 426 S.W.2d 224 (Tex.Cr.App.1968). Once the defendant testifies, “[t]he interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” Brown v. United States, 356 U.S. 148, 156, 78 S.Ct. 622, 627, 2 L.Ed.2d 589 (1958).

A limitation on the use of pre-trial silence is set forth in Doyle v. Ohio, supra. In Doyle, the defendant received his Miranda warnings when he was arrested for selling marihuana. At that time, he made no statements to the police. During his subsequent trial, the defendant testified that he had been framed. The prosecutor impeached the defendant’s credibility on cross-examination by revealing that the defendant remained silent after his arrest. *579 The Supreme Court reversed the conviction, stating that it is fundamentally unfair and a violation of a defendant’s due process rights to draw unfavorable inferences from what may be an exercise of the defendant’s right to remain silent under Miranda. The court based its decision on the fact that post-Miranda silence is “insolubly ambiguous.” Moreover, the Miranda warnings serve to assure the accused, “at least implicitly, that his silence will not be used against him.” Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 2182, 65 L.Ed.2d 222 (1980).

Several facts distinguish appellant's case from Doyle. First, when appellant was confronted with the Miranda warnings, he chose to confess. Although Doyle bars the use of the accused’s silence after governmental assurances of his right to remain silent, it does not apply when the accused voluntarily speaks after receiving Miranda warnings. This is so because the accused “has not been induced to remain silent.” Anderson v. Charles, supra, 100 S.Ct. at 2182. Moreover, the “insolubly ambiguous” silence that permeated Doyle is not present. Since he already had confessed his guilt, appellant could be expected to speak out if he were sincere in his sorrow.

Appellant’s entry of the guilty plea and judicial confession before the jury also diminished the force of appellant’s assertion that his silence constituted an exercise of his right against self-incrimination. Finally, it must be remembered that the prosecutor’s questions and his jury argument went solely to the issue of punishment, not to appellant’s guilt or innocence. The fundamental unfairness present in Doyle is not present in this case. See Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Anderson v. Charles, supra.

Similarly, appellant’s contention cannot be sustained under state law as set forth in the recent decision of Franklin v. State, 606 S.W.2d 818 (1979). In Franklin, this Court ruled that it is improper for the prosecutor to impeach a defendant’s exculpatory testimony at trial by referring to the defendant’s failure to testify concerning the exculpatory matter at a pre-trial hearing. Franklin pointed out that under Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1967), a defendant has the right to testify at a pretrial hearing for a limited purpose, without waiving his Fifth Amendment rights. Also see Myre, supra; Sensabaugh, supra. This is necessary in order to avoid the impermissible “tension” that is created when a defendant is forced to choose between basic constitutional rights.

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