Joe D. BRYAN, Appellant, v. The STATE of Texas, Appellee.
No. 516-91.
Court of Criminal Appeals of Texas, En Banc.
June 10, 1992.
Rehearing Denied Sept. 30, 1992.
848 S.W.2d 637
The indictment alleged appellant delivered a controlled substance to Darius Neyland [an undercover officer] by actual transfer [in count one], and by constructive transfer [in count two]. Tr. 3-6. That appellant personally delivered the cocaine to officer Neyland behind the closed door in a bedroom of appellant‘s house when no one else was in the room is absolutely undisputed. Neyland testified that appellant placed two packets of “a white powdery substance” on the bed and pushed them across the bed to Neyland, he picked them up and “checked to see what I had;” he then immediately identified State‘s Exhibit One as the two packets “that were pushed across the bed to me” containing the “white powdery substance,” which “tested positive for presence of cocaine” in a field test. II S.F. 14-16. In his own testimony Appellant disputed none of those facts, relying instead on an entrapment defense initiated by a woman who urged him to get “some cocaine” for her friend, who turned out to be Neyland. II S.F. 22-43.
The court charged the jury only on “constructive transfer” alleged in count two, and appellant represents that was done on election by the State; in any event, the prosecutor did not object. II S.F. 55. Appellant moved for an instructed verdict on the ground that there was no evidence of a “constructive transfer.” After the jury returned its verdict and the court rendered a written judgment, appellant moved for judgment non obstante verdicto and to vacate the judgment on the same ground.
On appeal he presented only one point of error, viz:
“The trial judge erred in failing to grant appellant‘s motion for directed verdict, for the reason that there was no evidence of a constructive transfer.”
Appellant‘s Brief at 2. Stated another way, his sole contention is that the undisputed evidence shows an “actual transfer” rather than a “constructive transfer,” and therefore the verdict of the jury is not supported by, and indeed is contrary to “all the relevant evidence.” In short, the question is one of law, not fact.
In my judgment, appellant presented a record that most certainly contains “all the relevant evidence” of the offense alleged in count two of the indictment, the only offense the court submitted to the jury, and that is germane to his single point of error. To say that the point may not be decided by an appellate court because the record does not contain a statement of facts of demonstrably irrelevant evidence is not only an egregious injustice to this appellant, but a total rejection of judicial policy considerations supporting utilization of a partial statement of facts, as well as a disservice to the studied determination of this Court to effectuate and implement those considerations by adopting and promulgating
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MILLER, Judge.
Appellant was convicted by a jury of the murder of his wife.
Dealing with the second ground for review first, the facts of this case indicate appellant and his wife had been married sixteen years and were long-time residents of Clifton. While appellant was allegedly attending a convention at the Hyatt Regency Hotel in Austin, his wife was killed in their home by three gunshot wounds to her head and one to her stomach, all fired at very close range. The State‘s theory of the offense was that appellant left the hotel in the middle of the night, drove to his home in Clifton some two and one-half hours away, shot and killed his wife, and then returned to the hotel and attended convention activities the following morning. Although appellant cooperated with the police2 during their investigation and denied any participation in his wife‘s murder, circumstantial evidence eventually implicated him as the culprit.3
At his first trial, appellant waived his fifth amendment privilege against self-incrimination and testified on his own behalf. Prior to the commencement of appellant‘s second trial, the State filed a “Motion To Determine Admissibility Of Certain Evidence” indicating its intention to offer into evidence “all relevant portions” of appellant‘s testimony from his prior trial. The State anticipated that appellant would object to the admissibility of this evidence “upon the grounds that he will thereby be compelled to give evidence against himself or that he will thereby be deprived of liberty, property, privileges or immunities, without due process, or due course of the law of the land.” The State requested a pretrial ruling on the admissibility of this evidence because of the importance of this evidence in its preparation for trial.
On May 18, 1989, a pretrial hearing was held, in part, on the State‘s motion. The State informed the trial court that it sought to offer into evidence the appellant‘s testimony elicited during the direct and cross examinations from the guilt/innocence phase of his first trial. The State submitted numerous authorities supporting the admissibility of the proffered evidence. In response to the motion, the trial judge indicated he “expect[ed] to follow the law, and allow [the State] to introduce that testimony.”
Prior to the trial on the merits commencing, appellant requested that the State specify which questions and answers from the previous trial it proposed to read to the jury. During trial but before offering the
After the State presented several more witnesses in its case-in-chief, it offered into evidence, as exhibits, the two volumes of testimony from appellant‘s first trial. The State relied upon
Appellant raised three points of error in the court of appeals contending the trial court reversibly erred by permitting the jury to hear his former testimony. 804 S.W.2d at 652-658. The court of appeals relied on this Court‘s opinion in Chavez v. State, 508 S.W.2d 384 (Tex.Crim.App.1974), and the rules of criminal evidence8 in resolving appellant‘s claims. The court of appeals held that (1) the trial court did not reversibly err in allowing the prior testimony, “including the questions which contained ‘numerous prejudicial statements by the prosecutor[;]‘” (2) the prior testimony was not offered to show the appellant‘s bad character and was relevant to prove appellant‘s attempted explanations of the incriminating circumstances surrounding his wife‘s death; and (3) admitting the prior testimony did not deprive appellant of a fair trial. Bryan, 804 S.W.2d at 653.
Appellant‘s first trial was held in April of 1986, but his second trial was held in May and June of 1989; thus, the rules of criminal evidence controlled the admission of his former testimony at the second trial, and ultimately control disposition of appellant‘s ground for review concerning the admissibility of that evidence.9 Nevertheless, the court of appeals partially relied upon the Chavez decision from this Court in resolving appellant‘s claims, which decision obviously predated the rules.
Chavez was convicted of rape, which was a capital offense at that time, on his plea of guilty. He testified at the punishment phase of his trial in an attempt to mitigate his punishment, and the testimony was highly incriminating and amounted to an admission of guilt. See Chavez, 508 S.W.2d at 386. This conviction was affirmed on appeal, but subsequently this Court granted a writ of habeas corpus and remanded the cause for a new trial. Id. at 385. At the retrial, Chavez pled not guilty and chose not to testify. The State, after deleting any reference to Chavez‘s prior guilty plea, introduced into evidence a transcript of his testimony from the first trial. Before this Court, Chavez contended the admission of his prior testimony violated his Fifth Amendment privilege and
This Court found his contention was without merit. Chavez, 508 S.W.2d at 386. Relying on a host of cases10, this Court stated:
These cases hold or recognize that an accused, taking the stand on his own behalf, waives the privilege, so that his testimony may be used against him at a subsequent trial of the same case.
Id. In its opinion in the cause sub judice, the court of appeals acknowledged that this holding in Chavez had been criticized by Judge Teague in his concurring opinion in Nelson v. State, 765 S.W.2d 401, 406 (Tex. Crim.App.1989) (Teague, J., concurring).
According to Judge Teague, those authorities (see footnote 10) relied on a “poor analogy” to confession law to hold a defendant‘s former testimony was admissible at a subsequent trial. Preston, 53 S.W. 881, illustrates the analogy through its interpretation of Collins, 46 S.W. 933, where the Court upheld the use of the defendant‘s testimony from his first trial against him when he testified at his second trial. In Preston, the defendant testified at his first trial, but chose not to testify at the subsequent trial. Attempting to distinguish Collins, Preston contended on appeal that his former testimony could not be produced against him since he did not testify at the second trial. In rejecting his contention, the Court noted:
The objection [in Collins] urged was that a defendant‘s testimony at a former trial could not be reproduced against him at a subsequent trial, because it was a statement of the defendant made while under arrest, and no warning such as is required by the statute was shown to have been given; and that decision was predicated upon the idea that a warning in such case was not necessary; that when appellant took the stand on his own behalf, though for the time being he might be under arrest, yet he was in the presence of the court; and that his giving the testimony was free and voluntary, [sic] thus placing his statement or confession on the same plane as a confession made out of court when not under arrest, or a statement or confession made under arrest after having been duly warned.
Preston, 53 S.W. at 881. The Court concluded that
when a defendant takes the stand on his own behalf, he does so with full knowledge of his rights in the premises, and on a subsequent trial of the case it is competent for the state to introduce such evidence against him, although he may not take the stand at the subsequent trial.
Id.
Although Chavez was criticized in Nelson, both the majority and concurring opinions in that case went on to find Chavez inapposite. See Nelson, 765 S.W.2d at 405, 410. The defendant Nelson testified at a preliminary hearing, outside the jury‘s presence, during the guilt/innocence phase of trial. The hearing was held to determine the admissibility of Nelson‘s prior convictions for the purpose of impeaching his defensive testimony. Finding the convictions were too remote, the trial court ruled them inadmissible. At the punishment phase, however, the State was permitted, over Nelson‘s objection, to present his testimony regarding these convictions through the court reporter reading her notes. On petition to this Court, the State cited Chavez as supporting the admissibility of the prior testimony; Nelson relied on Brumfield v. State, 445 S.W.2d 732 (Tex. Crim.App.1969) (On State‘s Motion for Rehearing) for the contrary11, and the limited purpose doctrine from Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). This Court followed the spirit of Brumfield and held
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.
While each of the foregoing cases is instructive, especially in regard to the waiver of the constitutional privilege against self-incrimination, the advent of the rules of criminal evidence renders each inapposite to the issue before us in appellant‘s second ground for review; the issue presented to us is one of first impression under these rules.12 We glean from these cases and others, however, general, well-accepted tenets of law which were not eradicated by the promulgation of the rules of criminal evidence and which are pertinent to the issue in this petition.
It is axiomatic that a criminal defendant may not be compelled to testify at his trial and give evidence against himself.
A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.
Harrison v. United States, 392 U.S. at 222, 88 S.Ct. at 2010.
When an accused voluntarily testifies before a jury he is subject to the same rules governing direct examination and cross-examination as any other witness. Myre v. State, 545 S.W.2d 820, 825 (Tex. Crim.App.1977); and Brown v. State, 617 S.W.2d 234, 236 (Tex.Crim.App.1981). That is, he may be “contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying, except where there are overriding constitutional or statutory prohibitions.” Brown, 617 S.W.2d at 236.14 The privilege ceases only when liability to punishment no longer exists. Brown, 617 S.W.2d at 237, citing Brumfield, 445 S.W.2d at 735.
In the present cause, appellant waived his privilege against self-incrimination by voluntarily testifying at the guilt/innocence phase of his first trial. That waiver, however, was effective only as to that particular phase of the first proceeding. Upon retrial, appellant‘s privilege was still viable, and he properly invoked his right not to testify in this second trial by stating, via counsel, that he did not desire to testify. The issue in this petition is thus framed: was appellant‘s former testimony admissible in evidence against him at his second trial even though he invoked his privilege against self-incrimination?
(b) Hearsay exceptions. The following are not excluded if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing
of the same or a different proceeding, if the party against whom the testimony is now offered, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. The use of depositions is controlled by Chapter 39 of the Texas Code of Criminal Procedure .
This Court recently held a witness is rendered “unavailable“, under
Determining appellant was unavailable for purposes of
The final requirement for admission of appellant‘s former testimony under
In its decision, the court of appeals merely asserted that even if appellant‘s former testimony were to be treated as hearsay17, it would have been admissible under
Accordingly, the judgment of the court of appeals is affirmed.
OVERSTREET and MALONEY, JJ., concurs and dissents, agrees with the disposition of ground number two and disagrees with the improvident grant dismissal of ground number one.
CLINTON, Judge, dissenting.
In Chavez v. State, 508 S.W.2d 384 (Tex. Cr.App.1974), this Court held that use of testimony of the accused at a former trial of the same indictment at a retrial during which the accused chooses not to testify does not violate his Fifth Amendment privilege not to testify to his own detriment. In a separate opinion in Nelson v. State, 765 S.W.2d 401, at 409 (Tex.Cr.App.1989), joined by Judge Miller, the late Judge Teague opined that ”Chavez’ foundation resembles quick sand.” In brief, Judge Teague maintained that the authorities cited in Chavez do not address or decide a Fifth Amendment question at all. It was my understanding we granted this petition for discretionary view with a mind to reexamine the holding in Chavez. How ironic that the majority today still refuses to resolve the Fifth Amendment question!
The majority informs us that appellant did not waive his privilege against self-incrimination at his retrial by virtue of having testified at his first trial. At 643. This is certainly consistent with our holding in Brumfield v. State, 445 S.W.2d 732 (Tex.Cr.App.1969). Accordingly, the majority frames the issue in this cause: “was appellant‘s former testimony admissible in evidence against him at his second trial even though he invoked his privilege against self-incrimination?” At 643-644. Thus, as identified by the majority itself, the issue here is one of constitutional dimension.
The majority proceeds to answer its own question by asserting that appellant‘s testimony from the first trial is admissible under
If the majority does not wish to revisit the holding of Chavez after all, it should simply dismiss the cause as improvidently granted.
Notes
I must reemphasize that we are not in this cause dealing with a retrial where evidence was freely, intelligently, knowingly, and voluntarily given by the defendant in the jury‘s presence at his first trial and that same evidence was admitted into evidence on retrial.Id.