*1 Appeals stated that there nothing indicating was in the record that a State,
jury Marquez was available. v. 100, (Tex.App. S.W.2d — Austin
The court therefore inferred available, concluding that the case would jury,
have resulting delay. to be reset for a
Id. The Court of
regard. any the absence of evidence in availability record as to the jury, of a
presumptions and inferences should made party burden, bearing which my opinion ought to be the State. would
therefore hold that inferring,
erred in in favor of the Goffney was not available. Cf. 583, (Tex.Crim.App.
1992) (where record must show that defen
dant dangers was admonished as to of self-
representation, presume court cannot waiver record).
from silent question whether, remains without the availability
inference as to jury, affirmatively
record otherwise ap- shows that
pellant’s waiver would have resulted undue
delay, prejudice or real inconve-
nience to the witnesses. As the Court of
Appeals did not address this issue I would judgment
vacate the
and remand this cause to that court to recon- reasons,
sider this issue. For these I dis-
sent.
CLINTON, OVERSTREET, BAIRD,
JJ., join. BROWN, Appellant,
Dennis Jon Texas, Appellee.
The STATE of
No. 1338-94. Texas,
Court of Criminal
En Banc.
April *2 Albert earlier
and
had smoked marihuana
evening.
appellant
After
would not take
the
pocket,
out of his coat
Burr and his
his hand
partner
him
him for
handcuffed
and searched
pocket
Burr found a
weapons.
appellant’s
bag
Appellant
they
large
pills.
claimed
Denton,
Whitlock,
appellant.
Tom
for
pills
later
were steroids. The
were
identified
Walsh,
Atty.,
Kathleen A.
Asst. Dist.
Den-
ecstasy.
again spoke
Burr
with Albert
Huttash,
Austin,
ton,
Atty.,
A.
Robert
State’s
containing
baggie
cocaine in
and discovered a
for the State.
jacket pocket.
Albert’s
possession
Appellant was indicted for
with
ecstasy
possession
to
and for
intent
deliver
PETITION
OPINION ON STATE’S
FOR
intent
cocaine. Albert
to deliver
was
DISCRETIONARY REVIEW
possession
for
of cocaine. Three or
indicted
McCORMICK,
Judge.
Presiding
days prior
appellant’s
four
to
trial
the
appellant
possession
convicted
against
charges
Albert were dismissed.
N-hydroxy-3,
to
with intent
deliver
4-me-
appellant’s trial
af-
Albert testified at
that
thylenedioxyamphetamine,
known
also
as ec
car,
gotten out of
appellant
ter
had first
the
finding
allega
stasy. After
the enhancement
back
the car
handed Albert a
he came
to
and
true,
appellant’s
tion to be
assessed
something.
baggie containing
Albert stated
punishment
twenty-five
at confinement for
dark,
know
that it was
that he did not
what
$5,000.00.
years and a
fine
and,
thinking, put it inside his
was
without
finding
after
reversed the conviction
they
pocket.
also
that
coat
He
testified
after
permitting
prose
trial court
him
appellant
arrested
that he
were
assured
prosecuting
cutor to continue
the case after
get
out of trouble since Albert
would
Albert
case. Brawn
she testified as a witness
and
he would hire a
was
involved
that
(Tex.App.
S.W.2d
lawyer for
that he
Albert. Albert testified
granted the
—FortWorth
We
State’s
testify,
to
not have a deal with the State
did
petition
discretionary
for
review address
though his case had been dismissed
even
that determination. We reverse.
days
appellant’s trial.
few
before
14,1991,
night
Donald
On
of November
Burr,
employed by
an
the Texas De-
officer
appellant
Burr
that he saw
return
testified
Safety
partment
Highway
Pa-
Public
and
license,
get
car to
his
but did
driver’s
Service,
appellant
speeding
stopped
trol
actually
get
him
Burr
see
the license.
got
appellant
on Interstate
After
out of
appellant
that
not see
reach
stated
he did
car, Burr
noticed
he seemed unusu-
pocket
anything
and hand
Albert
into his
nervous,
still, and
ally
that he could not stand
appellant
back to the car. He
when
went
put-
quickly,
that he moved his hands
often
any-
to see
stated that he
not able
also
At
ting his hand inside
coat.
Burr’s
particular, except
appellant
thing
appellant
to his car to
request,
walked back
back to the car.
went
license,
get
his driver’s
reached inside
thought
pills
he
testified
side,
then handed
car on the driver’s
and
his,
steroids,
was not
cocaine
were
Burr
Burr a driver’s license. While
wrote
possessed
Albert
that he did not know
and
citation,
speeding
he became increas-
out the
presumed
He
he
cocaine.
also stated that
appellant continued
ingly concerned because
had a
with the State
Albert
deal
overly
put
and to
his hand
act
nervous
having
case
him in
Albert’s
against
return
jacket pocket.
an inside
dismissed.
passenger,
spoke
Burr
Gor-
When
pros-
Albert, Jr.,
rested its
inside
After
defense
don
he smelled marihuana
copy of
attempted to offer a certified
ecutor
car. Albert admitted he
the case
Albert
Burr re-
the dismissal of
had smoked marihuana earlier.
Albert
the case was dismissed because
appellant,
who also admitted he
show
turned
examination,
passed
polygraph
explanation,
say beyond
not because
that it could not
any
permit
deal. The trial court did not
reasonable doubt that
error did not
admission of this dismissal. The
Brown,
tribute to
conviction.
only
indicated that she was the
one who
at 391.
*3
why
knew
the case was dismissed. She
presents
arguments
The
several
State
to
wanted
rebut
claim that there
challenging
Appeals’ holding
deal,
expressed
was a
but she
reluctance to
failing
trial court erred in
to remove
the
prosecuting
be a witness since she was
the
prosecutor.
argues
prose
the
The State
the
Eventually,
permitted
case.
the trial court
applicable disciplin
cutor did not violate the
prosecutor
the
to
there was no deal
ary
prosecutor’s testimony
rule because the
requiring
testify against
with Albert
him to
establishing
was not directed to
an essential
appellant in return for the
dismissal
the
fact in
argues
the case.1 The State also
the
case.
Appeals
erred to reverse the convic
argument
jury,
Before
to the
coun-
defense
solely
any
on the
basis
violation of a
sel asked the trial court not to allow the
rule because
failed to
prosecutor
prosecuting
to continue
the case
rights
show
were violated or that he was
because she had “made herself a material
deprived
agree
of a fair trial. We
witness.” He stated it was unfair to the
therefore,
argument;
latter
it
we find unnec
prosecutor
defendant for
put
the
to
her cred-
essary
any
to decide
whether
ibility in
argue
issue and then also
to the
rules were violated in this case.2
jury.
request.
The trial court denied the
Appellant’s
Appeals
brief to the Court of
Defense
theory
counsel reiterated his
to
rights
by
did not claim his
were violated
the
that Albert
a
had deal with the State
prosecutor’s noncompliance
disciplin-
awith
testify.
During
argument
her
jury,
to the
ary
Appellant’s
rule.
solely
brief relied
on a
prosecutor responded, “Now,
the Defense
disciplinary rule violation as the basis for
Attorney says
say
that I
no deal was made
reversing his conviction. We set out the
your
I’m
public
and
lying
servant and I’m
entirety
appellant’s point
of error
you.
you
problem
If
have a
with the case
presented
Appeals.
this issue to the
against
dismissed,
being
Gordon Albert
tell
case,
prosecutor
“The lead
Ms.
me after this case is over.”
Rattan,
guilt/inno-
Heather
testified
Appeals
held the trial court
phase
testimony
cence
of the trial. The
in allowing
prosecutor
to continue
given in
Appellant’s
rebuttal
to the
prosecuting the case after she had testified.
claim that a deal had been made with the
Brown,
Edwards, 1, (Tex.Cr.App.1990). 6 5, diseiplinaiy upon ence rules. Footnote rely solely relied, provides: appellant which disciplinary rule to reverse the a violation have the confession to be Because we held record, appellant’s conviction. On this reme inadmissible, we need admonish dy complaint is to a the State bar. file with attorney district that it would be assistant n. Armstrong, 897 at 366 5. We See S.W.2d again as highly improper for him to serve Beasley, five of 728 overrule footnote S.W.2d confession, then to resume witness to 357, this at the extent it conflicts with case, argue conducting the then to State’s opinion. (in testify) that his to the effect to judgment of the We reverse the Second more credible than version events was and the cause to remand appellant’s. proceedings that Court for further consistent Beasley's n. Beasley, 728 at 357 opinion. phrase “highly improper,” while use of the alleging interpretable as an ethical perhaps KELLER, Judge, concurring. violation, just easily interpreted be could by majority disposes of this ease con- I process argument. think the as a due only disciplin- tending appellant a raised interpretation. more latter is the reasonable ary and a rule rule Moreover, objection trial was violation, alone, appellant’s at does not constitute reversible process argument. In ob- essentially a due mere violation agree I that the error. While prosecutor’s partic- ground jecting to the continued rule is not attorney stat- reversal, majority’s ipation in the the defense disagree with the only disciplin- ed: appellant alleges clusion that
231
unfair,
unfair,
1345,
inherently
It’s
424
to the defen-
v.
So.2d
1348
(Ala.Crim.App.1982).Janes,
558,
People
prosecutor]
put
Ill.App.3d
dant for her
her
138
[the
216, 223-24,
317,
credibility in
93 Ill.Dec.
486 N.E.2d
324-
argue
issue and then to
(2 Dist.1985).
McCuistion,
State
also.
94,
702,
(App.1975).
N.M.
537 P.2d
While
did not use the words “due
prosecutor’s
failure to follow the above
process,”
rely upon Beasley.
he did
Al-
principles seriously jeopardizes a defendant’s
though
dicta,
Beasley
clearly
footnote 5 in
right to
fair
Waldrop,
trial.
So.2d at
issue,
authority
there is no
in Texas on this
Janes,
1348-1349.
93 Ill.Dec. at
appears
and the footnote
statement
McCuistion,
N.E.2d at 324.
case it was not.
Rattan’s
Cir.1980)
(7th
mony
necessary
1016, 1025
(observing
be-
appears to have been
F.2d
638
Shipman.
cause
was unable to locate
appearance
she
as witness is
Moreover,
testimony
could
extraordinary
need for
improper except
circum
reasonably anticipated, and
stances);
Birdman,
not have been
States v.
602
United
prosecutor attempted
(and
(3rd Cir.1979)
when the
to introduce
547,
cases
F.2d
552-553
copy of
of a certified
evidence means
therein)
especially
(noting courts and
cited
dismissal, the
not allow
trial court would
universally
practice
on
federal courts
frown
circumstances, I
her to do so. Under these
denied,
testifying),
444
cert.
find
in the
no due
violation either
1032,
703,
668
100 S.Ct.
62 L.Ed.2d
U.S.
fact
Rattan
fact that
testified
Torres,
(1980);
F.2d
United States v.
after
prosecute
she continued to
the case
Cir.1974)
(2nd
1120,
(prosecutor
should
testifying.3
all
as witness unless
other
not be used
exhausted);
testimony
Robinson
sources
judgment.
concur
Court’s
(8th
States,
Cir.
v. United
F.2d
1928)
prosecu
(opinion
reh’g) (practice of
MALONEY,
dissenting.
Judge,
acting
disapproved
tor
as witness should be
majority
Ap-
concludes
circumstances);
extraordinary
except most
peals
solely on the
erred because it relied
Annotation,
Barbre,
generally
see
Erwin S.
rule
to reverse
Prosecuting Attorney as
a Witness Crimi
the basis of
conviction. While
(1974
Case,
& Supp.
A.L.R.3rd 10
nal
Appeals’ holding
altogether
is not
Court of
rarely
testimony be
Only
should such
clear,
interpret
the State does
even
testifies,
he
permitted, and if the
solely on
Appeals’ opinion
relying
par
from further
should thereafter withdraw
as-
rule violation. The State
*6
Johnston,
ticipation. E.g.,
United States
in
brief
to be
“[t]he
serts
its
that
issue
Cir.1982).
(7th
F.2d
Several
by
not the
decided
this Court is whether or
rule:
reasons have been advanced
this
prosecutor
trial court’s failure to remove the
after
a witness
from the case
she testified as
First,
prosecutor
risk that the
there is the
Appellant’s
the
due
constituted a violation of
objective
fully
not
...
witness[.]
will
be a
process rights.”1
interpret
I would
the
Second,
prestige of a
it is feared that the
Appeals’
in
man-
opinion
Court of
the same
attorney’s office will artificial-
Government
holding
appellant’s
ner as the
as
that
A
con-
ly
credibility_
third
enhance
rights
by
pros-
process
due
violated
the
were
testify-
prosecutor’s
that the
sideration is
continuing representation after testi-
ecutor’s
ing might
...
confusion on the
“create
fying
jury.
the
before
jury as
part
[is]
of
to whether he
the
capacity
prosecutor or
speaking
have
in his
of
that have addressed the issue
Courts
...
result
the
of
confusion
general
practice
shown
distaste for
witness.” Such
according testimonial
serving
in the fact-finder
prosecutor
as witness in the same
appellant’s
process rights were not
During argument
argued
due
her own credi-
Heves
Rattan
above,
argument
bility
jury.
the
noted
of the Court of
As
violated. Given
basis
process
clear,
improper
implicates
majori-
is
and itself
the due
holding
entirely
the
Appeals'
not
is
to a
mat-
Once Rattan testified
contested
clause.
ter,
reviewing
ty
in
as
court
address
fails
its role
perhaps
that
coun-
was
inevitable
defense
it
support
peti-
arguments presented
the
the
Nevertheless,
credibility.
question
sel
her
would
granted
on
review.
different
which
placed
position,
by testifying
herself in that
she
Ap-
presented
if the Court of
situation would
argue to
not
been allowed to
she should
have
peals
expressly
violation of a
had
held that the
more credible witness.
the
that she was the
grounds
alone constituted
rule
particularly insupportable be-
was
Her conduct
Judge
conviction. As
Keller
reversal of the
very thing
makes
relied
the
that
cause she
opinion,
concurring
is no
points out
her
there
public
arguments improper
as a
status
such
—her
appel-
violation in
rule
mention of
not
did
servant.
Appeals, in
Court
lant's brief to the
argument.
improper
address the issue of
Beasley,
only
Appeals' opinion,
au-
or in
thority
Appeals.
by
cited
part
argu-
spends
better
1. The State
why
discussing
it be-
portion of
brief
ment
its
prosecutor’s
credit
closing argu-
Attorney says
say
Now the Defense
that
[Finally,]
...
frequently
ments.
the most
your public
that no
I’m
deal was made and
justification
cited
for the rule
reflects
lying
you.
you
servant and I’m
If
have
public
broader concern for
confidence in
problem
with the case
Gordan
justice.
process
dismissed,
being
Albert
tell me after this
Birdman,
withdraw from testifying the ease de- after Birdman, supra. See In testifying that no prived appellant of a fair trial.2 arguing deal was made and then that was she against appellant State’s cocaine case truth, telling prosecutor combined largely upon credibility. turned Ap- Albert’s credibility her as a witness and a pellant possess claimed he did not the co- jury, giving before the testimonial credit caine and never handed it to Albert. Al- closing argument.3 her improp- She further testimony bert’s handed the erly prestige position invoked the of her as a him only cocaine to was the evidence con- credibility to bolster her as a necting appellant to the cocaine. Albert tes- by suggesting public servant State; tified that he had no deal with the does not lie. The appellant disputed this, calling Albert’s credi- concluding appellant’s err due bility question. into prosecutor’s testi- rights were violated mony given was rebuttal of prosecution testifying.4 tinued after suggestion While lying Albert was about a deal Appeals’ analysis harm Immediately under following State. her 81(b)(2) testimony, both closing Tex.R.App.P. sides closed. was ar- less than ade- gument quate, stated complaint State does raise a ground 2. The Attorney State's for review says say asks that we that I that no deal was made decide whether: your public lying and I’m servant and I'm holding you” erred in seems be the basis for the Court's allowing trial court erred in finding deprived aof fair *7 prosecuting testifying continue the case after trial. as a witness before the since the trial addition, given only thing remaining that the n legal authority court is without to remove a prosecution prosecu- of the case after the from the case if the due closing argument. Judge tor testified was Keller's process rights are not violated. process conclusion that there was no due viola- prosecution tion in the continued Concurring judgment, 3. Judge in the Court's Kel- closing has no basis without consideration of process ler concludes there was no due argument. in the fact that "continued to prosecute testifying.” Concurring the case after majority points appears 4.The to what to be a opinion suggests prose- at 4. While she setting guidelines prosecu- manual forth for state jury argument might cutor's amount to a due tors, suggesting prosecutor's actions violation, process since "the Court of did acceptable complied were because she improper argument[,]” not address the issue of quoted portion pro- manual. The of the manual apparently she declines to consider it in her vides that a can as a holding. Id. at 4 n. 3. as reflected in Court, whenever "the need ... arises." A broader its brief before this the State views the “guideline” imagined. majority’s cannot be prosecutor's argument as the basis for the Court apparent sanctioning Appeals' alarming. holding: of this rule is of process The rule makes no reference to due Although specifical- never policy, cerns nor does it reflect a consistent with ly they states that believed that it was the issue, virtually every court that has addressed the prosecutor’s argument which constituted a de- prosecutorial testimony that would reserve for privation Appellant's process rights of due or exceptional acceptable analyzes cases when no never alterna- even the error in terms of a due prosecu- tives are available. Whether or not a violation the Court’s reference to the following comport guidelines tor’s actions statement made contained i.e., during jury argument, prosecutors’ "now the Defense in a manual is of no moment. aspect opinion. original guilty plea given of his involuntari to that the Court’s ly he was not admonished as to dissent. because consequences violating adjudica of deferred 42.12, probation pursuant to Article OVERSTREET, CLINTON, BAIRD and 5(a) 5(b), §§ of & V.A.C.C.P.1 JJ., join. Joyner v. Appeals affirmed. (Tex.App [14th] S.W.2d 59 . —Houston granted Appellant’s petition for discre We tionary whether review determine holding judge Appel failure the trial to admonish consequences lant of of a violation adjudication ret probation deferred Stephen JOYNER, Appellant, Eddison roactively Appellant’s guilty plea in render voluntary. 5(a) Recently this Court held “Sec. Texas, Appellee. The STATE of require, in felonies or misde- does either No. 1074-94. meanors, entering an defendant plea guilty open or nolo contendere Texas, of Criminal prior plea possible informed of the his En Banc. 5(b) consequences probation under Sec. 8,May Ray v. violation.” Therefore, (Tex.Cr.App.1996). based on ruling Ray, we affirm Court’s recent judgment Appeals. of the Court of BAIRD, concurring. Judge, appeal, appellant On contended direct Conroe, Swisher, Phillip appellant. W. involuntary judge the trial plea was because give failed Tex.Code Crim.Proc.Ann. Houston, MeCrory, Atty., Dan Dist. Assist. 5(a) 42.12, § which re art. admonishment Austin, Huttash, Atty., Robert A. State’s “orally informed quires the defendant be the State. consequences writing possible under (b) of this of violation Subsection section Ap community supervision.” The Court of APPELLANT’S PETITION OPINION ON Price relying on peals, DISCRETIONARY REVIEW FOR (Tex.Cr.App.1993), rejected appellant’s *8 PER CURIAM. argument. The Court held the failure of judge con to admonish Appellant pled guilty to the offense of trial adjudica violating building agreed sequences an of his deferred burglary of a without retroactively probation tri- render punishment. The tion recommendation as to involuntary. Joyner v. adjudication guilt appellant’s plea al court an deferred (Tex.App. years. [14th placed Appellant probation for six — Houston Court, utilizing This the same adjudicated court Subsequently Dist.] the trial Ray rationale, result in years reached same guilt and sentenced to seven (Tex.Cr.App.1996), and Appellant appealed alleging confinement. arrested, 42.12, 5(a) hearing judge to a on the provides he is entitled 1. Article Sec. proceed adjudica- orally writing whether to determination shall inform defendant (b) may guilt, appeal be from possible that no taken consequences under Subsection determination, adjudication upon community super- and that óf this section (b) proceedings original proceed as guilt, case consequences under Subsection vision. The there been no deferment. possibility if had include the defendant