*1 complaint about these admonishments.
Consequently, preserve he has failed to C.C., error. In the Matter
854, 2000, (Tex.App.-Austin 859-60 no R.J.C.,
pet.); 04-01-00686-CV, In re No.
Sept.11, no pet.) designated for R.R.,
publication); In re No. 08-01-00245-
CV, 2002 (Tex.App.-El WL 1859101 Paso (not
Aug.14, pet.) designated for
publication). Issue No. Five is overruled.
Having overruled Appellant’s Issue Nos.
One, Four, Five, and having found
that we need not any remaining address
issues, we affirm of the trial
court as reformed. DURHAM,
Paul Appellant, Texas, Appellee. STATE of
No. 09-04-175 CR. of Appeals Texas,
Court
Beaumont.
Submitted Dec. 2004.
Decided Dec. *2 Burnett, for appellant.
Bill Coldspring, Atty., Clyde Herrington, M. Dist. J. Lufkin, Armstrong, Dawn state. McKEITHEN, C.J., BURGESS, Before GAULTNEY, and JJ.
OPINION BURGESS, DON Justice. guilty Durham
A found Paul of a child aggravated sexual assault sixty years’ assessed at con- Department finement Texas Justice, Division, Criminal Institutional See Tex. a fine of and assessed $5000. (Vernon 22.021(a) Supp. Pen.Code AnN. 2005). appeals. Durham issue, Durham main- appellate In a sole the trial court committed reversible tains requested ad- by denying error regarding verse inference” instruction punish- Durham’s failure During guilt/inno- phase of trial. phase, the “no adverse inference” cence Durham given because instruction was testified. failed
The State maintains
(1)
preserve
on
issue because:
this
objection
had
he
defense counsel stated
(2)
counsel’s
defense’s
charge;
his re-
ambiguous about
statements were
“no ad-
the term
quest; he neither used
inference,”
request
explained
nor
verse
(3)
to sub-
clearly;
defense counsel failed
by
request
required
as
mit his
of Criminal Pro-
article 36.14 of
Code
(4)
cedure;1
Counsel,
defense counsel failed to
present-
explain
propose
had a
ed to
what I
separate right
charge
any
to not
of the Court. Are there
during the
instructions,
objections,
requested
even if
on
he had testified
*3
behalf of the
guilt/innocence
the
State?
phase.
None, Your
[STATE]:
Honor.
It
is axiomatic that a criminal
THE
says
COURT: What
the Defen-
cannot
compelled
defendant
to
abe
dant?
against
witness
himself. U.S. Const.
Honor,
[DEFENSE
Your
COUNSEL]:
V,
amend.
cl. 3. A
right
defendant’s
not to
I haven’t had a
go through
chance to
testify
continues
conviction until
the
I
thing,
whole
but
know one as-
after a defendant has been sentenced.
is,
pect
my
is
client
testify
did not
in
State,
Beathard v.
767 S.W.2d
432
punishment
the
phase. And there’s a
State,
(Tex.Crim.App.1989); Brown v.
617
paragraph similar to
in
the one
the
S.W.2d
237 (Tex.Crim.App.1981).
guilt/innocence in which
appli-
under
Further, a defendant
right
has a
to a no-
law,
say—
cable
or I should
instruction,
adverse-inference
which con
THE
you talking
COURT: Where are
cerns the fact a defendant elects not to
about?
testify,
at the
stage of a trial.
[DEFENSE
COUNSEL]: That
de-
State,
White v.
828
may testify
fendant
on his behalf if he
Beathard,
Crim.App.1989);
767 S.W.2d at
so,
elects to do
but that’s a privilege.
432; Brown,
would us in ... a dogmatic as- years ninety-nine years. to jurors, sumption that if properly admon- available, punishment range With such a ished, neither could nor would heed the coupled punishment phase evi- instructions of the trial court....” prior dence and in the of offense absence A trial judge powerful has a tool his evidence, we cannot conclude a disposal protect to the constitutional appellant’s reasonable doubt that failure to privilege jury instruction —and he receive a “no adverse inference” instruc- —the an has affirmative constitutional obli- tion did not contribute to the sentence he gation to use that tool when a defendant Accordingly, appel- received. we sustain employment. seeks its judge No can lant’s issue. We reverse the trial court’s jurors prevent speculating from about to appellant’s punishment as why a defendant stands mute in the face remand this to the trial court for a cause accusation, can, punishment healing only. of a criminal a new but must, so, if requested to do use the AND REMANDED. REVERSED unique power jury instruction to GAULTNEY, Justice, speculation dissenting. reduce that to a minimum. Justice, GAULTNEY, DAVID Dewayne GANT, Sr., Appellant, Robert
dissenting. case, In this respectfully dissent. v. trial court’s failure Texas, Appellee. The STATE of was inference” instruction No. 09-03-527 CR. harmless. See Beathard (Tex.Crim.App.1989). 432-33 Texas, Appeals of of Court tendency a There is natural assume Beaumont. not the defendant’s decision Oct. 2004. Submitted having something stems from to hide. Id. that is here. at 432. But concern Decided Dec. 2004. already Durham had testified Discretionary Review Refused guilt/innocence phase his ver- and related April sion of the facts. during punishment evidence
The State’s department of
consisted em testimony concerning possibil
ployee’s
ity pris counseling for sex offenders
on. This not a factual assertion was deny The needed counter. guilty. range had found him *6 for the offense was five years; did assess
ninety-nine
the maximum. See Tex. Pen.Code Ann. 22.021(e) (Vernon
§ Supp.2005); Pen. Tex. (Vernon 2003). 12.32 Ann.
Code never
jury heard evidence Durham had felony. been convicted of a His
before made and testi plea
friend help proba
fied he would follow dire, the State
tion rules. And voir
explained Fifth defendant’s Amendment
right not and remain silent.
Here, there assertions were factual would punishment phase that Durham to counter. As expected
Beathard failing
Crim.App.1989),
a “no adverse inference” instruction circum
jury was harmless under these
stances.