Medina, Hector Rolando, 2015 Tex. Crim. App. LEXIS 1172

Background

Relator (Medina) was convicted and sentenced to death for capital murder; on direct appeal conviction affirmed and became final.
At trial, lead counsel refused to participate in punishment phase; counsel was later cited to the State Bar for failing to consult relator about that strategy.
Relator filed a state habeas application alleging ineffective assistance of counsel for counsel’s abandonment at punishment; the habeas court designated those claims for an evidentiary hearing.
The State sought to call relator to testify at the habeas evidentiary hearing about whether he knew of or agreed to counsel’s punishment strategy; relator invoked the Fifth Amendment.
The habeas court granted use and derivative-use immunity (Kastigar immunity) and limited questioning scope; relator sought a writ of prohibition to prevent compelled testimony.
The Court of Criminal Appeals denied prohibition, holding the law unsettled on whether the Fifth Amendment clearly barred calling a habeas petitioner to testify post-conviction where immunity is granted and the proceedings are narrowly constrained.

Issues

Issue	Plaintiff's Argument (Medina)	Defendant's Argument (State)	Held
Whether the habeas court may compel a habeas applicant to testify about communications with trial counsel post-conviction	Fifth Amendment bars compelled testimony in any "criminal case," so relator cannot be forced to testify at his habeas hearing	Once conviction is final and use/derivative-use immunity is granted, there is no risk of incrimination and the State may call applicant and draw adverse inferences	Denied prohibition: court found no clear, controlling rule; the issue is unsettled given competing authority and immunity limits
Whether use/derivative-use immunity removes Fifth Amendment protection for post-conviction testimony	Immunity does not cure the constitutional right when testimony could be incriminating or affect retrial; death-penalty habeas is a continuation of the criminal case	Kastigar immunity is coextensive with the privilege and, combined with narrow questioning limits, eliminates substantial risk of prosecution	Court accepted that immunity is legally sufficient but concluded the broader question remains unsettled in these facts, so prohibition not warranted
Whether bringing an ineffective-assistance claim waives the Fifth Amendment privilege as to communications with counsel	Raising the claim does not automatically waive the right against self-incrimination; waiver cannot be assumed	By asserting ineffective-assistance claims and relying on counsel’s representations, applicant may constructively waive privileges and allow inquiry	Court held constructive-waiver doctrine and related precedents create reasonable arguments on both sides; no clear ministerial duty to prohibit questioning
Whether extraordinary relief (prohibition) is appropriate	Relief necessary because no adequate alternative remedy and compelled testimony would violate constitutional right	The habeas judge made a judicial (not ministerial) decision on an unsettled legal issue; mandamus/prohibition is inappropriate	Prohibition denied because the law is not "so clear" that the habeas judge had no discretion

Key Cases Cited

Kastigar v. United States, 406 U.S. 441 (1972) (use and derivative-use immunity is coextensive with the Fifth Amendment privilege)
Mitchell v. United States, 526 U.S. 314 (1999) (privilege inapplicable where no further incrimination is possible after conviction becomes final)
Baxter v. Palmigiano, 425 U.S. 308 (1976) (silence used in prison disciplinary proceedings did not violate Fifth Amendment where limited and not used in separate criminal prosecution)
Griffin v. California, 380 U.S. 609 (1965) (comment or adverse inference on defendant's silence at trial penalizes Fifth Amendment exercise)
Doe v. United States, 487 U.S. 201 (1988) (history and purpose of the Self-Incrimination Clause)
Lefkowitz v. Turley, 414 U.S. 70 (1973) (Fifth Amendment applies in other proceedings if answers might incriminate in future criminal proceedings)
Minnesota v. Murphy, 465 U.S. 420 (1984) (Fifth Amendment protects against compelled statements that could be used in future prosecutions; context matters)
Ex parte Dangelo, 376 S.W.3d 776 (Tex. Crim. App. 2012) (Fifth Amendment inapplicable where double jeopardy and conviction preclude further criminal liability)
Cannon v. State, 252 S.W.3d 342 (Tex. Crim. App. 2008) (discussed counsel abandonment and suggested court may inquire whether defendant knowingly acquiesced in counsel’s strategy)
Lagrone v. State, 942 S.W.2d 602 (Tex. Crim. App. 1997) (defendant who introduces psychiatric evidence may be ordered to submit to state examination despite Fifth Amendment claim)
State v. Thomas, 428 S.W.3d 99 (Tex. Crim. App. 2014) (ineffective-assistance claim waives attorney-client privilege as to relevant communications)