*1
individual named therein
ap-
that
the
was
introduce
support
guilt
the
of the ac-
pellant.
Spe-
in
cused
a trial
court. See
following
1.15,
Commentary
Art.
cial
nor any
prior
this
other
Neither
convic-
Onion,
John F.
the
Jr.
In the
by
Honorable
alleged for enhancement
was
of pun-
tion
stipulation came at
the
instant case the
indictment.
ishment in the
of the
stage
jury
trial after the
punishment
hearing, appellant,
punishment
At the
his
guilty.
of
find ap-
returned a verdict
We
for the
stipulated
and counsel
State
counsel
on Art.
supra, and
pellant’s reliance
was one and the
appellant
same person
that
State, supra,
v.
to be misplaced.
Duran
We
Ray
Jasper
Williams that
as the
received
stipulation
find that the oral
introduced
May
on
1975 in Cause No.
probation
stage of
punishment
the trial as
22,4359.
person
the same
appellant being
as the one
points to the fact that
Appellant
stip-
conviction,
in
prior
joined
by
named
in
urges
oral and
ulation was
under Art.
his counsel and
appellant,
counsel for the
necessary
is
V.A.C.C.P.1
such a
to be sufficient
establish the fact
State
writing
in
and
stipulation be
filed with the
sought
proved.
to be
in the cause.
papers
Further,
it must be borne in mind
State,
(Tex.
In Duran v.
In S.W.2d 418 this Court
(Tex.Cr.App.), upheld the trial of a penitentiary
court’s admission packet
containing prior conviction at the punish- of the trial stage where it was stipu- ment parte Edwin Ex Ronald WILKINSON. counsel that by lated defendant’s the de- Grady Stewart Ex WILLIAMS. person fendant in named conviction. former While the defend- 68961. No. in join we stipulation, did not ant noted Appeals Texas, Court of Criminal acquiesced in it. that he The defendant’s Banc. En complaint court erred in admitting because he pen packet personal- did not Nov. rejected. join stipulation ly 1.15, supra, speaks
Art. evi necessary State
dence that plea provides: his support 1. Art. V.A.C.C.P. without sufficient evidence to stipulated if the same. evidence be felony person except be of a “No upon recorded, can convicted writing, such case consents in the defendant in duly jury of a rendered and the verdict court, appearance, open con- in frontation, to waive felony capi- in unless cases less than witnesses, and cross-examination defendant, tal, upon entering plea, has in stipula- either to an oral and further consents right person open his in waived trial testimony tion of or to the the evidence writing accordance Articles 1.13 testimony by affidavits, written introduction of however, 1.14; provided, that it shall be witnesses, any docu- statements of mentary necessary to introduce state evidence support judgment evidence guilt showing the of the defend- into the record must be waiver consent the court. Such approved accepted by said evidence shall ant and court as event shall writing, and be filed judgment its the basis for in no papers the file of the cause.” charged person upon convicted *2 Angus Garcia and Michael
Carolyn Clause Houston, McDougal, for Wilkinson. Houston, Schneider, for Wil- Stanley G. liams. Holmes, Jr., Ray Atty., Dist. B.
John Houston, Atty., Asst. Dist. Speece, Elvin Huttash, State’s and Alfred Atty. Robert Austin, Walker, Atty., Asst. State’s State.
OPINION ONION, Presiding Judge. for writ of original application is an
This Applicants relief from corpus. seek habeas the 179th Judicial orders of District states in 1964 by Malloy Hogan, 378 U.S. in contempt refusing 1489, 12 them holding Applicants L.Ed.2d 653. 84 S.Ct. questions answer em- comfort in the privilege little can find court. by said paneled provision of the against self-incrimination Amendment, however, in view of the Fifth appeared *3 immunity. “use” of grant subpoenas 11, to jury response on March jury States, grand Kastigar was an v. United engaged 1982. The 406 In U.S. the 32 investigation shooting (1972), of L.Ed.2d 212 death of Wil- 92 the Supreme The applicants upheld liam Greene. Scott refused United States statute, constitutionality on a questions to answer basis of their federal U.S.C., that provides for privilege against The derivative self-incrimination. § immunity. written The grant filed motions to “use” use or testimonial State applicant immunity to each with held: regard to any jury testimony given him, grand explicit proscription statute’s “The requesting that the immunity be approved any criminal case of ‘testimony the use in that by the court and each applicant be compelled information under or other testify. to compelled The motions were (or any directly information order or indi- Thereafter, granted. grand from such rectly testimony derived jury, applicants still refused to answer information)’ is consonant with by the questions propounded assistant dis- standards. We Fifth Amendment hold attorney trict basis of privilege immunity from use and deriva- that such against self-incrimination. The applicants is coextensive with the scope tive use were returned to then court where the against self-incrimination, privilege refusals, informed of the was is to compel and therefore sufficient tes- questions, nature of the etc. Upon con- a claim timony over of the privilege.
tinued refusal testify grant of must immunity While a afford grand jury, each was held commensurate with protection that af- contempt imprisoned ordered privilege, it need forded not be for six months assessed a fine in the Transactional immunity, which broader. amount immunity $500.00.1 prosecution full from accords the compelled offense to which for the applicants initially The that contend relates, testimony affords the witness offer of the State’s “use” immunity was considerably protection broader than does protect them answering insufficient from (Em- Amendment privilege.” the Fifth might questions which tend to incriminate supplied.) phasis them, and that cannot be properly can find little comfort in Arti- Applicants contempt for for incarcerated refusal I, of the Texas Constitution either. cle 10§ on the questions privi basis of answer their Shorthouse, et in Ex recently Only self-incrimination. lege against argue They (Tex.Cr.App.1982), at, 640 S.W.2d that transactional com immunity can against privilege held that this court testimony over a privi their claim pel of a I, in Article embodied self-incrimination lege against self-incrimination. is not to State Constitution 10 of our § Amendment, The Fifth United States that than broader construction given Constitution, by virtue of the Fourteenth Amendment, and further of the Fifth held Amendment, made applicable immunity from use and derivative contempt provi- did not testimony. contain a session and orders would hear the purge applicants could themselves so that the of reflects that the term record now testifying They contempt by jury as expired ordered. and said has has now told, however, at the time the discharged. was still orders were entered with scope jurisdiction cise of
use is co-extensive of self-in- its and the enforce- provided I, in said crimination orders, of its lawful ment au- including to compel testimony sufficient such thority to issue writs and orders as privilege.2 a claim of The court over necessary or proper in aid of its State, large part upon relied in Olson It has the jurisdiction. duty to require (Tex.Cr.App.1969). S.W.2d shall proceedings be conducted orderly an dignity expeditious seem therefore would to be no There and to so control the proceedings manner contention applicants’ merit to the State’s justice done. A court has the immunity “use” grant of insufficient punish contempt. power to standpoint. from constitutional assert, however, further Applicants “Penalties testify refuses before a
when witness *4 court does grand jury the not have the (a) Every court other than a 2. “Sec. 1911a, punish to under Article authority municipal or justice pun- court court V.A.C.S., under but Article V.A. $500, a of not more than by by ish fine or argue the Applicants penalties as- C.C.P. jail county for not confinement 1911a, consonant Article sessed were months, both, any or per- more than six 20.15, supra. Article but not contempt of guilty son of the court. (when 20.15, supra witness Article refuses or “(b) justice municipal court A court provides: testify), to a fine not may punish by of more than witness, brought in any a man- “When $100, by or confinement in the or county grand jury, refuses to testi- ner before a more city jail for not than three or days, be made known to fact shall fy, such both, guilty any person of of the State to attorney representing or the court. court; court may compel and the Provided, however, an “(c) officer of a question, if it ap- to answer witness court, in aby held trial one, proper a a by imposing to be pears shall, motion upon proper filed in the dollars, exceeding five hundred fine not court, upon be released his own offended committing party jail to by until recognizance pending a determi- personal testify.” willing to ishe guilt by his or innocence of nation is found in the 1965 Code of This statute court, other than the judge or a district Chapter in 20 Procedure Criminal entitled ap- Said court. be offended Jury and Powers.” The “Grand purpose presiding pointed —Duties increased fine possible 1965 revision the Administrative Judicial Dis- judge of dollars five one hundred hundred from alleged contempt oc- wherein trict been provided 387, in dollars as Article curred. 1925, V.A.C.C.P., whose forerunners were 426 in earlier codes. It is Articles to enforce order “Confinement statute had a part clear that Nothing this Act affects “Sec. laws procedural many our criminal confine power to a contemner court’s years. compel obey him to or- a court order (Contempt; pow- V.A.C.S. der. courts; provides: penalties), er of power authority “Inherent probation sentence or “Work-release courts 5, possesses inher- 1. A Code “Section 4. Section “Sec. Procedure, 1965, amended, necessary for the exer- as ently powers all of Criminal (V.T.C.A., Code, 71.04), immunity. § involved Penal sanctioned “use” 2. The statute
9 n “
Code,
Family
and Section
‘It
as
is a settled rule of statutory inter-
amended, apply when a person
pun-
pretation that statutes
deal with the
ished
confinement
for contempt of
subject, have
the same gen-
court for disobedience
court order to
purpose,
eral
or relate to the same person
periodic payments for the
make
support
thing
persons
or things,
class
aof
child.”
being
pari
considered as
materia
contain no
though they
reference to one
This statute was first enacted in 1971
another,
though they
were passed at
1971,
2535,
Leg.,
831,
62nd
(Acts
p.
ch.
1§§
times or at different
different
sessions of
30,
3,
Aug.
1971).
eff.
Section 2 was
legislature.
(Acts 1973,
in 1973
amended
63rd Leg., p.
“
at a proper
‘In order to arrive
con-
1784,
657,
1,
Aug. 27, 1973).
ch.
eff.
§
Sec-
statute,
struction of
determine the
(Acts
1977,
was added
tion
65th
intent, all
legislative
exact
acts
parts
827,
2,
p.
ch.
Leg.,
eff. Aug.
§
will,
pari
therefore,
of acts in
materia
1977).
4 was
Said
amended in
(Acts
§
taken, read,
together,
and construed
each
Leg., p. 2537,
67th
ch.
4, eff.
other,
enactment
reference
1, 1981).
Sept.
parts
though they
one and the
applicants’
It
argument
that Articles
Any
same law.
conflict between their
and 20.15 are
1911a
irreconcilable and that
harmonized,
provisions will
if possible,
principles
statutory construction re-
given
*5
and effect will be
to all the provi-
more
quire
specific statute,
that the
Article
they
act if
can
sions of each
be made to
be
applied
in
instant case.
have
together
stand
concurrent effi-
5429b~2,
(Code
§
V.A.C.S.
cacy.
Act), provides
Construction
that:
“
the in
purpose
pari
‘The
materia
general provision
“If a
conflicts with a
is to carry
rule of construction
out the
provision,
or local
special
they shall be
intent, by
legislative
full
giving effect to
construed,
possible,
if
so that effect
is
provisions
all laws and
bearing on the
given
both.
If the conflict between
subject.
proceeds
The rule
same
on the
irreconcilable,
provisions
special
that
supposition
several statutes re-
provision prevails
local
or
as an exception
subject
governed
are
lating
to one
one
general provision,
unless
gener-
spirit
policy,
and are intended to be
provision is the
al
later enactment and
and harmonious in
consistent
their sever-
intent
that
manifest
the general
Thus,
parts
provisions.
al
it applies
prevail.”
provision
where one
deals with a subject
statute
in
comprehensive terms and another deals
Alejos
State,
v.
555 S.W.2d
In
449-
portion
subject
with a
of the same
in a
(Tex.Cr.App.1977), it was
stated:
But
way.
where a general
more definite
“Normally when statutes are in pari
and a more detailed
statute
enactment
is made to
effort
materia
harmonize and
conflict,
latter
in
will prevail,
are
special
with the
give effect
governing the
whether it
regardless
passed
prior
in the event of
general
any conflict.
statute,
subsequently
general
to the
or
State, 515
(Tex.Cr.
v.
S.W.2d 670
Hines
appears
legislature
unless it
in-
State,
Cuellar v.
App.1974);
521 S.W.2d
general
to make the
tended
act control-
(Tex.Cr.App.1975); Ex parte
Harrell
And,
rule is not
ling.
applicable
169 (Tex.Cr.App.1976) ],
S.W.2d
su
[542
cover
enactments
different
situa-
State,
pra;
(Tex.
Jones v.
“ In pari Alejos State, are considered to be in ‘Statutes supra, the two statutes they relate to materia —when the same were held not to in pari involved materia thing, toor person or same class of although statutes concerned the same things, or have persons pur- or the same subject objects, because had different As poses object. or between character- situations, intended to cover different subject ization of matter with which apparently were not intended to be deals and a statute characterization of its together. considered purpose, the latter object appears to be argued, however, If it can be important factor in determining
the more 1911a and pari Articles 20.15 are in said whether different statutes are closely materia, then under the rules of statutory enough related justify interpreting one special statute, construction Article 20.- light of the other. example, For 1911a, govern over Article would been held where the same has sub- statute. in several ject having is treated acts dif- objects the rule pari of in ferent materia not, however, pari are The two statutes apply. does not adventitious occur- 20.15 its materia. Article forerunners like or similar phrases, even of rence long part of our proce- criminal have subject matter, similar laws enacted procedure laws. involves only dural wholly different ends will not justify and a witness who the district Sands, rule.’ C. Dallas applying refusing to testify held in Construction, Statutory Vol. Sutherland jury. the grand en- 2A, p. p. and Supplement, § contempt pow- deals acted (1973) (Emphasis supplied.) witnesses, concerning er of all courts offi- in 82 C.J.S. “It is stated Statutes and others in variety of the court cers 366a, that: It is clear two statutes are situations. “ legislative acts, pro- in different contained which to the same relate ‘Statutes penalties, de- for different vide *6 thing, or to the same or class of person signed purposes to serve different and ob- or things, or which have a persons com- provisions The of the jectives. statutes are are in pari materia. purpose mon On special statute, and the Arti- irreconcilable hand, pari statutes are not in the other prevail must under the rules of cle do not relate to which the materia statutory construction. Article Although which subject and have no com- same enactment, latter there is is the no 1911a and, scope; purpose although mon general provisions intent manifest incidentally refer an act the .relating any act of thereof act, subject as another it is not in same any court control. before its scope if pari materia aim are ’ unconnected.... distinct 20.15 stat- only Article the Not “Further, Am.Jur.2d, Statutes, in 73 it but was the statute under applicable, ute that: said proceeded. ap- the action After which “ testify refused to first plicants are parts which ‘... Statutes hearing and at the the mo- jury, plan, scheme or same are testimony compel appli- tion to accomplishment of at aimed attorney district testi- cants, assistant the suppression results same fied: evil, pari considered as in are also hand, statutes authority you On the are ask- “Q materia. what Under or purpose, no common aim have motion to com- your which ing the Court not relate to the same do Ronald Edwin Wil- testimony and which pel thing, person, pari are not in subject, 179th District kinson Jury investigating the materia....”’ Grand Court shooting of William swer death the questions Scott of the assistant district Greene? attorney transcription “as reflected ‘.‘A [*] Article Procedure. [*] 20.15 the Code of [*] [*] [*] Criminal [*] trict court appearance proceedings of the official Court after their second before said Grand the applicants Reporter of the before the dis- refusal to tes- Jury.” The said Well, the order “A is based grand jury on 20.15 tify before the was not a dis- separate proceeding, but was
tinct as- to the matter sistance as envi- granted After the court “use” immunity by supra. sioned applicants and ordered to testify before grand jury, applicants continued to applicable The statute therefore was privilege against claim their self-incrimina- 20.15, supra,3 and the penalty as and so informed the tion court. The appli- have should provi sessed under the then taken cants were before the grand of that statute and sions not Article where refused to testify, again supra. The court assessed an improper pen said claiming privilege. Upon their re- alty rendering the entire penalty void. See prosecutor turn to court where the in- Rodriguez, (Tex. Ex S.W.2d 757 judge formed the what transpired Cr.App.1982). the time the court held the applicants in the record contempt, reflects: entitled to the relief for and are prayed discharged from the (Assistant “MR. STRICKLIN District by orders entered the district Attorney): Honor, ... Your for the Rec- court. ord, I think that would based on 20.15
that the Court would have to both access It is so ordered. (sic) well a fine as as a term in custody. McMASTER:
“JUDGE
That’s true.”
CLINTON, Judge, concurring.
immediately
Almost
thereafter the court
thought
advanced in dissent has been
punishment
assessed
for contempt at six
several
scrutinized
times
the Supreme
jail
and a fine
months
of $500.00. This
of the United
States over the past
compliance
was not in
with the penalty
Initially approved by
decade.
a divided
of Article
provisions
supra, despite
States,
in Brown United
359 U.S.
comments of
prosecu-
(1969),
421 U.S. (1975)2 COMPANY, Appellees. LAND FAIRWAY
Moreover, punishment uphold to under 1911a, V.A.C.S., is say some- 05-82-00673-CV. No. “authority” the court how applicant questions. each answer Texas, order Appeals Court authority of a It did not. Dallas. compel witness to answer a July 1982. question solely derived from “proper” 20.15, V.A.C.C.P. Aug. Rehearing Denied 1982. have could been un- imposed Punishment 20.15. There is no
der Article need for
legislation. J.,
TEAGUE, joins.
DALLY, Judge, dissenting. 1911a, that Article
I am convinced V.A. applicable
C.S. granted relief, but I
should not be have persuading mem- unsuccessful to so The Supreme of the Court hold.
bers opinion cases cited concurring
Court not on constitutional grounds, decided merely interpretations
but were of Federal Supreme These of Procedure. Court
Rules no bearing cited have
cases how we statutes this State.
construe the Since held that Article has V.A. applicable, is not the next session
C.S. could, legislature my opinion
should, an provide adequate punishment for justice frustrates who refusing witness testify being after immunity. use
granted J., DAVIS, joins in this dissent.
W.C. Justices, concurring happy was an effort Two to have the tions not while *8 testity pres- Harris, acknowledge ‘committed actual refusal to with all of do purposes proposition court’ for Rule ence that “a witness” re- for the stands 42(a). purpose, questions wit- It served no not fusal to answer posi- court,’ and had made his presence adamant ness ‘in actual conduct appearance questions before the Dis- tion known. when restated even pro- persists a new and different trict Court was not the witness his district ceeding, answer,” the other. It ancil- unrelated id. U.S. refusal lary hearing designed J., (Blackmun, with whom Justice at 1809 joins, concurring). Rehnquist to it.” an aid