Franklin v. State

818 by automobile title, with com authorized owner King charged

of-state 30(a) lien. provisions give with the will rise to an artisan’s South- pliance of and § Gilbreath, (b) paid money. western Investment v. 380 Finley any before Not Co. 1964, (Tex.Civ.App.-Amarillo no having complied, attempted so transfer 196 S.W.2d writ). permit- cannot be Finley King from was void. Reeb v. One without title repairs 579, (Tex.Civ.App.- to make and accessions to a Danley, 221 S.W.2d ted 1949, payment writ). no vehicle and then demand Antonio Since sale stolen San void, the true owner. upon recovery by for the for them consideration sale Densman, King merely v. were volunteers in Finley fails. Robinson 470 S.W.2d 1971, 451, truck to which adding to the value of a (Tex.Civ.App.-El Paso writ n.r.e.). already paid title. King ref’d has had no Since $14,254 truck, any cause Finley for the of judgment ap- court of civil King may against Finley. action have is reversed, judgment is rendered is peals action, subject King’s cause of however is Company is the that Drake Insurance own- resulting offsets from the use of any lawful posses- to its er of the truck and is entitled given King by Finley truck use another King against Fin- sion. The cross-action of truck in was seized after the to the district ley is severed remanded the state. proceedings. for further court undisputed

It is that Drake holds valid of title to the only certificate truck. That the was issued certificate Virginia League-Finley-King after transactions is As the holder immaterial. title, Drake

of the valid certificate of is ownership possession entitled truck, purchasers two for value FRANKLIN, Appellant, Donald Gene complied provisions who have not with the Connell, supra. Act. Boswell Texas, Appellee. The STATE agree Finley’s not con We do No. 57348. ownership tention that he is entitled he add the truck because the accessions Texas, Appeals Court Criminal truck. relies on Ochoa v. Finley ed to the En Banc. (Tex.Civ.App.- Rogers, 234 S.W. 24, 1978. dism’d) May which allows a Dallas writ purchaser title to an bona fide to retain Rehearing 1979. Opinion Oct. and addi improvements article when the 21, 1979. Rehearing Nov. Denied good exceed the value tions made faith that the of the article to the extent nature changed article

of the article merely accessory resulting becomes Accession product. § See Tex.Jur.3d Finley, rule benefit (1979). This cannot however, only available because per purchaser. The law will

bona fide advantage of his own one to take mit Pickering, Werner wrong. Stove Co. writ). (Tex.Civ.App.1909, no S.W. also 43 A.L.R.2d See repairman’s Nor can assert a Finley Only work lien under 5503. possessory art. White,

Ted Butler and Bill M. Dist. At- V. Arm tys., Conaway, Charles T. Gordon Harris, Battaglia and strong. Bill E. Alan Steinhauser, Jr., Dist. At- Bennie F- Asst. Antonio, Huttash, Robert State’s San Austin, for the Atty., State.

OPINION

DALLY, Judge. aрpeal This an from a conviction for murder; capital punishment was assessed Appellant at death. was indicted in Bexar County, change but a of venue to Nueces County was ordered.

Appellant forty-five grounds raises of er- discussion, group we shall these ror. our grounds following categories: into the suf- ficiency of evidence related closely and issues; requested jury charges; denial of evidence; admission exclusion of refus- and indictment; selection; quash jury al to jury argument.1 and

I.

The indictment under which alleged was tried intentionally Mary Mar- knowingly caused death garet by cutting stabbing Moran her committing with a knife in the course of kidnapping, robbery, attempting to commit rape. underlying Each offense was Appellant con- alleged separate in a count. refusing tends that the trial court erred in single count require to elect State submitting jury to submit and in require verdict forms which did not specify underlying felony on which capital their verdict of murder was based. sufficiency of Appellant challenges also guilt punish- the evidence at both the phases ment of his trial. 26, 1975, midnight July

Shortly after Tinker, Douglas Christi, deceased, Corpus Clarence a nurse at Vet- Murphy Audie Williams, Priest, Antonio, Antonio, Pat ap- Hospital appar- eran’s San San pellant. ently by seized an assailant as she backed appreciative 1. Our review of the voluminous record master index of the state- greatly prepared by case was facilitated the excellent ment of facts which was the clerk preparation. particularly reporter, Shepherd. manner of its We are and the court Jim E. Mr. which appellant car rived at the house in lived. space outpatient her from its times, lot, parking stabbed seven and taken Ap- outside. green parked Buick was to an field several miles from overgrown of his pellant was awakened and advised hospital. found searchers She volun- rights, after which he constitutional still July afternoon alive During signed a search. tarily consent Her completely nude. nurse’s uniform and house, pair police the found a the of search shoes, sweater, underwear, and a used Tam- soaking pail of pants in a appellant’s were a from the pax found short distance water, muscle and a a shirt rose-colored found, spot along was where she sever- belonging appellant, gold to a pair of shoes personal items property. al of her The de- wife, two belonging appellant’s and dress morning following ceased died on the her carpet later pieces shag carpet similar to discovery. blood appellant’s in Buick. Human found appellant Twо saw the witnesses the in and muscle in water on the was found the at the time of parking lot the abduction. blood on shoes was shirt and shoes. The the Carter, employee hospital, an of the James Appellant’s pants type. of the deceased’s that, testified as he walked to his car short- blood, mate- plant and positively tested ly midnight, appellant wearing after he saw samples rial taken in the cuffs matched a muscle and beside standing green shirt a was the place from the where deceased strap Buick hand. with a or hose shirt on the muscle found. Fibers found asked Carter where he could find Appellant^ in the and dress matched fibers contained gas Thinking appellant a station. that was sweater. deceased’s siphoning gas, sought Jerry Carter out Gal- appellant’s back In a trash can beside van, a was hospital security officer who re- door, burned police partially found the areas, patrolling parking and related to the personal of several of the deceased’s mains him what had he seen. drove Galvan the Among were the items found effects. Cushman outpatient parking vehicle the cars, billfold, driv- purse, credit deceased’s lot, green he was a Buick by where met license, checkbook, and nurse’s scissors. er’s appel- driven man Galvan a identified as billfold and scissors. Blood was found on the lant. Galvan also observed the deceased’s knife, proved space was which tests parking automobile out of its and Also found a empty. around at- in the Galvan turned could have made the stab wounds Buick, tempted whereupon the the stop the body cuts found in deceased’s and the Buick and a chase ensued. The accelerated uniform. deceased’s barricade, through up ramp a Buick drove a appellant’s green During a search curb, field, sped a a grassy jumped into hu- Buick, rope with police found a small was away city a street. Galvan able Human blood man blood stains. look the driver the get another close on the rear seat type was found deceased’s chase, as well during Buick also seat shag rear carpeting. and the plate Returning Buick’s license number. stain, although spermatozoa semen no had a lot, Galvan found trail of parking from sweepings found. were Vacuum blood, hu- subsequently determined be matching of the car contained hairs rear type, running man the deceased’s blood of the deceased. Soil samples taken from general from her car in the direction of was deter- fenders from under Buick’s appellant spot where Carter had seen area to be the as that in the mined same green Buick. The inside the deceased was found. where Using plate reported license number from the door handles had been removed Galvan, police Antonio determined San doors so that rear doors the Buick registered that the Buick was green opened not be from inside. could He, stepfather. name of appellant’s owned testified Appellant turn, had sold car police told the that he from his removed and the items morning Buick appellant. Before dawn on the both loaned abduction, He had officers ar- house. testified police several Code, pants the Buick and his to a which she was found. V.T.C.A. Penal Eugene Tealer night on the 20.01(1)(A) (2)(B). that Tealer The inside door Sec. had returned both items after 1:00 a. m. on appellant’s from handles had been removed July 26. He stated that Tealer had told car, circumstantial evidence indi- which the he, Tealer, him that up had thrown transport cates was used to the deceased to pants and that it was Tealer who had the field. This is evidence of intent placed pants pail Ap- of water. 20.01(2), supra. prevent her liberation. Sec. pellant explain presence could not The field in which she was secreted clothing, blood on his or how the deceased’s sufficiently overgrown and isolated that property came to be in his trash can. It searching days took over four of intensive was stipulated blood was Code, to find her. V.T.C.A. Penal 20.- Sec. type not the same as that of the deceased. 01(2)(A). sup- The evidence is sufficient to port jury finding Where several ways an offense guilty underlying kidnap- of the offense committed are set forth in a statute and Code, ping. V.T.C.A. Penal 20.03. Sec. definition, embraced in the same pun- are manner, ishable in the same and are not robbery vio offense includes other, repugnant to each they are not dis- effectuating lence in the course of theft. charged tinct offenses and in one State, Lightner (Tex.Cr. v. 535 176 S.W.2d State, indictment. Jurek v. 522 S.W.2d 934 case, App.1976). In the instant the evi affirmed, (Tex.Cr.App.1975), 428 U.S. dence establishes that after the deceased 96 (1976). 49 L.Ed.2d 929 An personal was stabbed several items of her indictment may contain as many counts billfold, property, including purse, her charging the same transaction as the draft- cards, credit were taken from her. These er necessary deems to meet variations in can, items appellant’s were found in trash proof. State, the supra; Jurek v. parte Ex where an effort destroy had been made to Easley, 490 (Tex.Cr.App.1972). S.W.2d 570 evidence, them. From this the jury could Jurek, we held that an alleg- indictment reasonably obtained conclude ing more thаn one of the aggravating con- property the without the deceased’s effec 1257(b)(2) ditions set forth in Art. of the deprive tive with intent to consent and the former Penal Code was duplicitous. Code, property. of the Penal her V.T.C.A. Code, V.T.C.A. Penal 19.03(a)(2), Sec. under appellant may 31.03. That have aban Sec. which appellant convicted, was contains property subsequent obtaining doned the to substantially wording same as former State, it is 471 consequence. of no Banks v. Penal 1257(b)(2). Code Art. (Tex.Cr.App.1971). 811 The evi S.W.2d Where only charged, support one transaction is dence to a jury finding is sufficient and different counts are that appellant guilty underlying contained in the of the Code, indictment possible robbery. meet offense of Penal variations of V.T.C.A. proof, required State is not 29.01 and 29.02. to elect Secs. upon such counts. Nor may an election be pelvic A examination of pri- the deceased compelled where different counts charging or to her death disclosed no evidence of the same offense prevent are drawn to a rape, vaginal during smears taken variance support and there is evidence to autopsy negative were because the deceased State, each count. Floyd v. 164 Tex.Cr.R. having period. had been her menstrual (1956); State, 523 S.W.2d Smith v. However, the evidence establishes that af- Tex.Cr.R. 148 S.W.2d 844 ter the deceased was seized and stabbed she In the instant there is sufficient evi- was taken the field she where was found support dence to a conviction under each of stripped Tampax naked. Her was removed. the three counts. A semen stain was found the rear seat of

The evidence Although establishes that the de- car. not sufficient ceased was taken by deadly prove aggravated rape, the use of force the commission from hospital parking lot to the field in the the commission of acts evidence shows trial,

amounting to is preparation ing guilt phase more than mere sufficient support finding support a the ac- of the second issue submission tions specific 37.071(b), were taken with the intent to supra, jury’s under Art. Shippy commit said offense. The evidence suffi- affirmative answer thereto. that appel- State, supra. support jury finding cient to a guilty lant was the underlying offense of II. aggravated rape.

attempted V.T.C.A. Pe- Code, 15.01, 21.02, nal Secs. 21.03. Appellant contends that the evidence is insufficient establish that the acts sup- Because evidence sufficient to alleged proved were appellant which finding port guilt under each of the Therefore, he caused the deceased’s death. counts, three the trial court did not err in refusing argues, trial court erred submitting each count to jury. Nor did aggravated requested charge submit his court permitting trial err in guilt phase requested assault at the and his general return guilty verdict of without charge Penal on causation under V.T.C.A. designating guilt under which count Code, 6.04(a), punishment phase. Sec. State, Bailey found. S.W.2d He erred State, also contends court Hintz (Tex.Cr.App.1975); refusing request, punishment Cavazos v. (Tex.Cr.App.1965); S.W.2d 411 phase, charge for a evidence circumstantial 178 (Tex.Cr.App.1963); 365 S.W.2d respect each of the two issues sub- McArthur v. Tex.Cr.R. pursuant to Art. 37.- (1937). mitted to the S.W.2d 227 071(b)(1) (2), and V.A.C.C.P. Appellant questions sufficiency the of the charge doctor who probability evidence as to the The would testified her commit of that treatment of deceased that criminal acts violence would the shock continuing society. a death was the result of irreversible constitute threat 37.071(b)(2), multiple stabbings Art. loss resulting V.A.C.C.P. We hold that from and subsequent complications the is of evidence sufficient. blood and He further testified that he therefrom. trial, During punishment phase the the of believed the have lived had might deceased from testimony State elicited several been found of forty-eight she within hours police Antonio officers San that examiner who being stabbed. The medical reputation in the for a community being autopsy conducted the determined that peaceful law-abiding and citizen was bad. multiple stab of deceased died of wounds addition, the psychiatrist who examined punctures the chest and throat with appellant his at the time of admission to the heart, liver, complicated by lung, left Department Texas of Corrections in 1970 and atelecta- pneumonia bilateral broncho— testified that he had determined that appel inflammatory action lungs, sis of psychiatrist lant The also psychopath. is heart, and air and fluid around continuing that psychopathy testified is a testi- cavity. medical examiner chest for is known condition which there no treat no disease fied that he found evidence psychopaths repeat ment and tend pro- conditions abnormality than the other type of criminal an same activities on of the stab complications duced severity. accelerated scale of It was the wounds. opinion the psychiatrist charge on Penal pattern request for a psycho Appellant’s would follow the classic all, cross-examination, 6.04, appropriate if pathic activity. supra, the Code On Sec. psychiatrist guilt phase have prediction stated should been made at certainty. within a reasonable medical Cf. his trial. That section of the Penal Code (Tex.Cr. criminally respon- Shippy v. provides person 556 S.W.2d that a being App.1977). testimony, when if result for which only The above sible for appellant’s prior rape prosecuted not have occurred but along considered would conduct, alone or con- presented operating dur either conviction and the evidence However, deliberately was committed deceased currently with another cause. death expectation the evidence is insufficient to warrant such that the with reasonable charge case. Even if it is assumed would result. or of another of the deceased died from that the deceased would not have Shippy, supra, a circum- As we stated prompt the stab wounds had she received required on charge is not evidence stantial assault, attention after the the fact medical supported that is every facet of a case subsequent complications remains that her established evidence. The circumstantial only derived from the stab wounds. Not cul- proof of the distinguishes between rule but for would deceased not have died act, objective historical pable a matter of wounds, the stab there was no concurrent charge, proof requires fact which independent cause of death of the stab rea, mens psychologic fact a matter wounds. The trial court did not err in require charge. Proof which does not refusing appellant’s requested charge on deliberately and the defendant acted 6.04, supra. Penal sec. Code death expectation that with reasonable murder, prosecution In a the issue of psychologic result is a matter of fact. aggravated assault is raised when the in Furthermore, expectation deliberation strument with which the murder is commit psycho- that arise from internal are matters deadly weapon per ted is not a se or is used and, therefore, not fall do logical processes in a manner not calculated to ordinarily we general rule exception within the death, when, addition, produce Shippy, footnote noted in 556 S.W.2d evidence raises the issue aof lack of intent by Art. specified that the issue 2. We hold of the accused. Corbett part to kill on the require use 37.071(b)(1), supra, does (Tex.Cr.App.1973), S.W.2d 940 charge. evidence of the circumstantial cert. den. 414 U.S. 94 S.Ct. L.Ed.2d 756 The evidence in the

instant case does not show that the knife III. deadly se, used is a weapon per but Appellant contends that the trial errone- clearly evidence establishes that it was used permitted bolstering of unim- ously in a manner produce calculated tо death. witnesses. He also peached identification Appellant’s intent to the cause death contends that silence was post-arrest may presumed. deceased therefore him. On the other unlawfully used State, Marrero v. (Tex.Cr. 500 818 S.W.2d hand, he should have appellant argues that State, v. O’Brien App.1973); 365 797 S.W.2d to introduce evidence of an- permitted been (Tex.Cr.App.1963). There is no evidence of offense charged crime similar to the other a lack of kill part appel intent to testimony against the death expert State, supra; Corbett v. Dovalina lant. See penalty. State, v. (Tex.Cr.App.1978). 564 S.W.2d 378 testimony, both Carter original In their refusing appel The trial court did not err in appellant as the man identified Galvan requested charge aggravated lant’s as 26,1975, July lot on parking saw in the sault. as witness testified at the time but neither charge not circumstantial evidence is extrajudicial identification of other required regard with to the issue under Art. However, rest- appellant. after the defense 37.071(b)(2) probabili of whether there is a case, Antonio ed its called a San State ty that the defendant would commit crimi police officer who testified that Carter nal acts of violence that would constitute picked appellant out of a Galvan had each v. society. Shippy continuing threat lineup. The then recalled Carter State State, (Tex.Cr.App.1977); 556 246 S.W.2d lineup iden- who testified as to their Galvan State, King v. (Tex.Cr.App. 553 S.W.2d 105 appellant. tifications of Shippy, 1977). reasoning We believe the who identified While a witness has supra, applicable is also to the issue under testify that may defendant at the trial also 37.071(b)(1) Art. of whether the conduct of the de the defendant while the defendant that caused the death of the he identified 824 MR. CONAWAY: “QUESTIONS BY it been police custody,

fendant was in has held that others not bolster this unim- Donald, Now, you let me ask some- “Q. peached testimony by corroborating the sto- thing? you ever told Have fact that the witness identified defend you just told here ry that State, Lyons v. (Tex. ant. 950 S.W.2d before? today Courtroom However, Cr.App.1965). error bemay such Yes, I of it. have. Part "A. objection testimony waived if to the is “Q. you Have ever told story to me State, v. Montemayor not sufficient. before? In the in (Tex.Cr.App.1970). S.W.2d No, I “A. haven’t. police stant when officer “Q. Isn’t you true that have been picked lineup, out of the asked who Galvan under oath in a Courtroom before was, please “If it appellant’s objection Judge in previous proceed- Barlow Court, Honor, clearly imper Your is ings and you never told us one we missible a number of cases and under mumbling about word you tale object question.” to the When the same just told me? Carter, appellant’s question was asked of “MR. will object PRIEST: We to that was, object objection “Again, we to the question. your As Honor knows we were objections question, Your Honor.” Such engaged then matters in which alleged not preserve were sufficient these matters were not relevant and we State, supra. Montemayor error. object that basis.” disregard inadequacy of Even if we A discussion between counsel and the court objections, his contention does by: was followed present reversible error. Where “THE question? COURT: What attempts impeaches defendant “QUESTIONS BY MR. CONAWAY: impeach identifying testimony wit- “Q. you taking Do remember witness, testimony party of a third Franklin, stand, ness San Donald extrajudicial identification witness’ Antonio, Texas, before this same State, admissible. Turner S.W.2d Barlow; Judge, asking James E. me (Tex.Cr.App.1972); Frison being questions, Mr. Priest Beasley v. (Tex.Cr.App.1971); S.W.2d Reporter Court present, this same (Tex.Cr.App.1968). 428 S.W.2d being present in the Courtroom and impeach both Carter Appellant sought about what asking questions me regard opportunity and Galvan house there at happened out in the parking view the man each had to one say and did word by pre- the witnesses at a lot. Statements being in Eugene anybody Tealer attempt in an proceeding were used trial that house or- testimony. their inconsistencies in prove until say a word Don’t “MR. PRIEST: pretrial proceed- at the Carter’s statement he is position It is our Judge rules. appellant ing that his identification exercise making undue comments resemblance to a by appellant’s made easier Wé privilege. Fifth Amendment with of the 1930’s was tested movie actor to-first, to the object we the Court ask We hold that actor. photographs question. testimony impeach appellant’s efforts over- right. It is “THE COURT: All witnesses warranted identifying ruled.” testimony. admission of the officer’s question in Appellant answered na- negative. questions Other a similar guilt at the testimony appellant’s After objec- appellant’s ture were also asked over trial, the cross-examined of his State phase tion. him as follows:

825 general why deny It is a cross-examined as to he did not rule of evidence that prior silence of a as to a after the same testi making witness fact the statement testified, original which he has his Raf given where such silence trial. mony 494, States, occurred under circumstances in which he 271 46 S.Ct. fel v. United U.S. out, expected 566, (1926). right would be of a speak may be 70 L.Ed. 1054 used at a impeach during present testimony the witness cross- limited defendant to Evidence, Wigmore, hearing waiving examination. 3A without his Fifth Sec. (Chadbourn 1970), 1042 rev. and cases v. United rights, Amendment Simmons 967, States, 377, long recog- thеrein cited. And it has been 88 19 390 U.S. S.Ct. (1968), prohibit nized that where waives his does not an accused L.Ed.2d 1247 privilege to exculpato remain silent and takes the of false use a defendant stand, may be upon ry by cross-examined statements made him at such a hear testimony with the same latitude as ing knowledge falsity. of their United 239, be Kahan, 1179, exercised in the case of an ordinary 94 States v. 415 U.S. S.Ct. States, Fitzpatrick witness. v. United 178 (1974). 39 And where a crimi L.Ed.2d 297 304, 944, (1900); U.S. 20 S.Ct. 43 L.Ed. 1078 nal defendant takes the stand on his own States, 148, Brown behalf, v. United prior 356 U.S. 78 inconsistent statements him 622, (1958). S.Ct. 2 L.Ed.2d 589 police may impeach On the be used to hand, other a defendant in a criminal testimony, though trial the statements even who testifies may impeached not be by his were obtained in violation of the defend silence at the time of rights his arrest and after and could not have ant’s Miranda receiving warnings. Miranda Doyle v. been as direct evidence of used State Ohio, 610, York, 426 U.S. 96 S.Ct. guilt. L.Ed.2d Harris v. New 401 U.S. (1976). (1971);2 instant the chal- L.Ed.2d 1 Oregon S.Ct. lenged Hass, 1215, 43 cross-examination appel- 420 U.S. 95 S.Ct. L.Ed.2d related lant’s failure exculpatory (1975). to tell the story at through Evidence obtained an (cid:127) the preliminary hearings mo- unlawful search and seizure also be tions to quash the suppress indictment and purpose used for the impeaching a de identification, evidence and point a which fendant’s trial testimony. Walder Unit Supreme States, United States expressly 354,98 Court ed L.Ed. U.S. Ohio, did not reach. Doyle v. supra, foot-

note six. appellant When the testified for limited prosecutors

Unless are leeway allowed purposes pretrial hearings at the the State scope of impeachment properly cross-examina was restricted interrogation in its tion, some defendants will be able to frus appellant, and cross-examination of the but trate the truth-seeking function of a appellant hearings in those was free to by presenting to, tailored defenses insulated opportunity and had the to testi- Ohio, ‍​‌‌​‌​​‌​‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‍from challenge. Doyle to, effective fy exculpatory the same version of the supra, Thus, footnote seven. jury. where a crimi facts as he later did before the We nal defendant takes the during permitting stand his hold the trial court did not err in making retrial and denies statement testi to cross-examine before State witness, by prosecution fied to he may why as to he had not related his may distinguished 2. This case be from Butler v. wife three hours after his arrest while de- the State, (Tex.Cr.App.1973). custody. 493 S.W.2d 190 In fendant was in appellant In this after State, supra, majority exculpatory Butler v. a of this Court testified to facts before apply holding jury, refused to the of v. New Harris the why he was asked on cross-examination York, supra, contrary statutory story because of a he had not told the same while under policy 38.22, expressed previous proceedings in Art. In in V.A.C.C.P. oath Judge court before Butler, impeach police appellant to the defendant a offi- Barlow. The had testified testify concerning prior pretrial proceedings. cer was allowed to a state- three occasions in ment he overheard the to his defendant make penalty in would have testified that the death exculpatory pre- version of the facts the not, crime. He opinion, does deter hearings. history the would also have related the of presence jury, appel- Outside the the Texas, pointed out the penalty death Tealer, Eugene that testimony lant elicited penalty of opposition to the death several man to whom had appellant the testified he described what occurs religious groups, and pants night loaned his car and on the the The trial court held at an electrocution. abducted, deceased was had been arrested a testimony was proffered that the irrelevant weeks, prior appellant’s few trial and and refused to order the and inadmissible charged employed a rape with the nurse bring the wit- payment public funds by Hospital. the Veteran’s Murphy Audie ness to the trial. alleged rape hospi- The occurred another During punishment phase of a capital the tal a short distance from the hos- veteran’s may presented evidence murder trial pital, employee. Ap- where Tealer was an any matter the trial court deems that pellant Tealer had also established that Both the the relevant. State and defend- burglary previously been convicted argument present ant the rape, intent a case in which victim 37.071(a), Art. V.A. the sentence of death. contends Appellant was also nurse. that jury is is that the What essential C.C.P. refusing permit the trial court erred possible informa- have before it all relevant go jury. this evidence to whose fate it must tion about the defendant evidence of offenses commit- Ordinarily, Texas, U.S. Jurek v. determine. is by parties ted other than the defendant (1976); Robinson 49 L.Ed.2d 929 State, inadmissible. Ferrell v. 429 S.W.2d (Tex.Cr.App.1977). 548 S.W.2d (Tex.Cr.App.1968). prof- The evidence by appel- expert testimony proffered The fered not inconsistent with appellant the only to the issue of lant relevant guilt. Florio v. S.W.2d generally, an penalty wisdom of the death State, 492 (Tex.Cr.App.1976); Dickson v. settled, legislature by the issue which was (Tex.Cr.App.1973). Although S.W.2d 267 Code, when it Penal Sec. enacted V.T.C.A. appellant sought apparently to establish 19.03. to ei- testimony was irrelevant identity, proffered mistaken evidenсe submitted to special ther of the issues had does not establish that ever V.A.C.C.P., (2), 37.071(b)(1) Art. jury, mistakenly Tealer. Cf. been identified as appel- and contained no information (5th States, Holt v. United 342 F.2d 163 Cir. trial court did not err lant whatsoever. The Furthermore, 1965). probative value of testimony inadmis- holding proffered fact the evidence weakened sible. police, appellant’s original statements to arrest, prior to Tealer’s were to effect IV. pants loaned his car and had checking “Smokey” Taylor.

Eugene that his motion Appellant contends statements, police these determined should have been the indictment quash night Taylor jail was in composi- because of the unlawful granted Tealer was deceased was abducted. grand jury which returned tion brought during courtroom the nature questions indictment. He also trial, and and Galvan testified both Carter on which sufficiency the evidence they saw in the that he was not the man Also, appellant was based. the indictment July lot on 1975. outpatient parking manner in which the Bexar challenges its of connection to the offense Given lack Attorney decides County Criminal District did err in ex- the trial court charged, murder indict- capital whether to seek a the evidence. cluding ment. trial, grand phase Appellant contends

During punishment no below sociologist him had members who which indicted appellant proposed to call

827 discriminatory in viola- arbitrary are age thirty system- as a result of the 238, Georgia, 408 92 persons grand atic exclusion of such from tion of Furman v. U.S. (1972). However, 2726, We disa- in Bexar L.Ed.2d 346 jury County. service S.Ct. 33 appellant adduced presented gree. has no rationale or evi- The evidence quash mere- suggestion hearing on his motion justify persons dence to prosecutorial thirty recognizable, under are a the exercise of ly distinct illustrates class, approved in singled recognized out different treatment discretion as 153, 428 96 Gregg Georgia, under the laws as written v. U.S. S.Ct. applied. or See Partida, 482, 2909, (1976). also Jurek 430 97 49 L.Ed.2d 859 See Castaneda v. U.S. S.Ct. 262, 2950, 1272, Texas, 49 (1977). 51 L.Ed.2d 498 96 v. 428 U.S. S.Ct. State, (1976); Livingston v. 542 L.Ed.2d 929 Among any age group there will be vast ground (Tex.Cr.App.1976). 655 This S.W.2d experiences. variations in attitudes without merit. of error is persons age The fact that two are the same necessarily give does not them a community arbitrarily interest. We hold that an V. age defined group does not constitute a Appellant contends that twelve venire recognizable class for the purpose of deter excluded from improperly members were mining the lawfulness a grand jury selec for cause in violation of Wither system. Kuhn, tion See United v. States Illinois, 510, 1770, spoon v. 391 88 U.S. S.Ct. (5th 441 1971); F.2d 179 Cir. United States contends, (1968). 20 L.Ed.2d 776 He also Gast, v. (7th 1972), 457 F.2d 141 Cir. cert. members, to five of these vеnire that even 969, 2426, den. 406 92 U.S. S.Ct. 32 L.Ed.2d disqualified Witherspoon if were under (1972); Potter, 668 United v. States 552 they qualified were nevertheless under V.T. (9th F.2d 1977); 901 Cir. United v. States Code, were, 12.31(b), C.A. Penal Sec. Guzman, (D.C.N.Y.1972); 337 F.Supp. 140 therefore, improperly excluded. Quadra Francisco, v. Superior Court of San The latter contention is without merit. F.Supp. (D.C.Cal.1974); 378 605 v. State capital juror In a prospective murder Williams, (La.1975); Hopkins 310 So.2d 528 may Witherspoon, under disqualified State, 414, v. Md.App. 19 311 A.2d 483 12.31(b), State, Sec. or both. Brock v. 556 (1973). Butera, Cf. United v. States 420 (Tex.Cr.App.1977). pro If S.W.2d 309 (1st Marr, 1970); F.2d 564 People Cir. 67 under Wither- spective juror disqualified Misc.2d (1971). 324 N.Y.S.2d 608 may the fact not spoon, Appellant alleges that the indictment was disqualified questioned have been or even based solely hearsay testimony 12.31(b), supra, is of no conse under Sec. five assistant district attorneys. Assuming State, quence. supra. On the Brock so, appellant this is present does not reversi- hand, prospective juror other where a State, ble error. Forbes v. 513 S.W.2d 72 12.31(b), disqualified supra, it is under Sec. State, (Tex.Cr.App.1974); Carpenter v. 477 to deter necessary for the trial court 22 (Tex.Cr.App.1972); S.W.2d Jackson v. Wither- qualified mine whether he is under State, 470 (Tex.Cr.App.1971). S.W.2d 201 State, spoon. Hughes v. 857 562 S.W.2d Calandra,

Also see United States v. 414 U.S. State, Hughes v. (Tex.Cr.App.1978); (1974); S.Ct. L.Ed.2d 561 (Tex.Cr.App.1978); Hovila S.W.2d 581 States, Costello v. United 350 U.S. 76 State, (Tex.Cr.App.1978); S.W.2d 100 L.Ed. 397 (Tex.Cr.App. Burns v. S.W.2d (Tex. 1977);

Appellant contends that because the Be- Moore v. 542 S.W.2d County Attorney Cr.App.1976). xar ex- The exclusion of the twelve Criminal District therefore, so capi- proper, ercises his discretion whether to seek a venire members was basis, under one of part, long disqualified tal murder indictment on the as each was crime, of the heinousness of the the results the two tests. capital opposed was disqualified punishment,

Albert was under that she DeAses following 12.31(b), supra Witherspoon. exchange with the district both Sec. place: while mandatory attorney He testified that life took deliberations, sentence would affect “Q. feeling you And it a have that penalty death He mandatory would. time, your had for some that all that under no circumstances also testified life, punish not proper it is giving penalty. would he consider the death taking regard- his life by someone done, might no less of what he have disqualified Mrs. T. Brown under A. was might matter what his have crime 12.31(b), her supra. She testified that Sec. your feeling taking been? Is “might by deliberations be” affected her life should be left to God someone’s knowledge possible punishment. of the She not men or women? knowledge also- testified that would influence of the fact is- her determination punished, should be “A. I believe sues. know, prison go or, you you know,-

Dorothy disqualified Mae Clawson was 12.31(b), “Q. Right. under supra. Sec. She testified not vote for the death that her Sec. had done. would be tively death, regardless her could conceive of der Arlynn Jimmy knowledge 12.31(b), supra. She Witherspoon. be deliberations unable appropriate J. Turner was Faye light She of the Terrell was also testified that she could of her to look at the facts of what no She situation punishment. would be affected penalty. knowledge punish disqualified testified that she testified that she disqualified guilty in which it someone person objec- under un- by “A. “Q. “A. ****** ^[*] strong. me? penalty should be stood Well, with If someone Some you your statement ^[*] kind of I punishing Is that just were punished but if ^[*] commits a crime he punishment. opposed to the death don’t believe what don’t ^[*] somebody that to me it was go are ^[*] alone I under- telling in it. [sic] ^[*] punishment. circumstances, “Q. you, no Could under Angela disqualified under was Sanchez jury and sitting on the yourself see Witherspoon. that she was She testified case, capital in a hearing evidence against penalty of the death imposition evi- case, listening murder and could not under circumstances somebody hearing dence play. serve on a where it came into crime, a terrible had committed crime, knowing by partici- your

Mary disqualified under Lee Shuler was person in the trial that pation that her 12.31(b), supra. She testified Sec. death, put could might on trial her would be affected deliberations keeping ever do knowledge punishment. your conscience? disqualified was under Clarence Stuart my guess-it is not I don’t know. I “A. Witherspoon. He that while testified my it is guess I religious belief. could vote to convict in a circumstantial believe conscience, guess. just I vote evidence he would never punishing them.” He was bi- penalty death in such a case. upon ased law which State procedure used explaining After to her rely. entitled to See Freeman coun- punishment phase, at the (Tex.Cr.App.1977). S.W.2d sel asked: circumstances, then, disqualified “Q. those Under Edway Askey Mrs. T. to the facts you listen she could Witherspoon. After testified under your it in the back always would have in- whether the case and determine might be? capital punishment mur- guilty dividual was mind what capital murder guilty der or not Yes. “JUROR: being effected that without [sic] really ad- “THE COURT: the fact that the law by decision objectivity, whether itself to dresses might impose penalty? the death you Do objective. can be you you think “A. I know. wouldn’t pass on facts and view the you think can “Q. sorry, I am ma’am? uneffected objectively, the facts [sic] punishment know what you fact I know. “A. I said don’t “Q. ^[*] without fact that ... Do facts and ^[*] you being there is a ^[*] think decide effected [sic] you ^[*] about the facts possibility can consider ^[*] by the that ^[*] cannot? might be? “JUROR: “THE COURT: “JUROR: I think I think I can.” You think so. you can or be life or death? the sentence will again court explanation, the After further knowledge punishment asked if the would be life.” “A. I think the sentence deliberations, to which she affect her would questions Further elicited a statement that “Yes.” replied, thought questions she she could answer the being the death of fact without affected contrаdictory. plainly The answers are penalty. to second- In such a we are reluctant judge who of the trial guess the decision us, light

In the of the cold record before venire observing the the benefit of had unequiv say Askey it is difficult to whether of voice. See and tone whether she would automati member’s demeanor ocally stated State, (Tex.Cr. Hughes v. cally imposition vote of death. S.W.2d State, See White v. (Tex.Cr. 543 S.W.2d 104 State, Tezeno White v. supra; App.1978); However, Witherspoon App.1976). does not err supra. The trial court did answers, require Askey’s certain formal excluding jury. Snapka from the answers reflect not on her only feelings, but disqualified under Patricia Villareal was ability impar on her to serve as a fair and 12.31(b), testified that supra. She Sec. Tezeno juror. tial S.W.2d always “would be punishment nature of the (Tex.Cr.App.1972). The trial court did not mind,” and that she my back of excluding jury. err in her from the would be af- thought her deliberations disqualified R. Pate was under Robert fected. 12.31(b), supra. testified that he Sec. He knowledge punish- believed that his

ment would affect his deliberations. VI. complains of six instances of Appellant Snapka disqualified under

Carolyn jury argument by the allegedly improper 12.31(b), supra. The record contains Sec. following exchange: The first of these instances prosecutor. counsel, argu- in his after defense occurred Now, “THE COURT: ... would the ment, had stressed to the punishment know you fact that what point- and had evidence was circumstantial you will or could be if find the man argued were weaknesses guilty, your would that effect delib- ed out what [sic] your as to the facts or color He then testimony erations of two witnesses. deliberations? stated: guess I so.

“JUROR: by right you-I I tell will start out “And I don’t know wheth- telling you now think that you “THE COURT: Do guilty of this Franklin is you facts er Donald Gene looking when are over the But, rape, gets I 1970 in certainly crime. “In San Antonio don’t know. then, think certainly years. worries It worries me. ten Now would me. submit, And, years. either.” ten don’t know ten would mean years years think ten mean You would Thereafter, appellant’s attorneys another of think ten You would ten Christmases. argu- elaborated on this statement birthdays, ten which years would mean foregoing ment. After a reference to the we would have that before would mean prosecutor stated: rapist again it would up with this put “Now, there had been considerable [sic] 1980?” be discussion about the two or three- how objec- appellant’s The trial court sustained attorneys the you two that address that it was jury tion the not and instructed the do Donald defendant not believe that Ap- aspect punishment. consider is I guilty Gene Franklin of this crime. mistrial was denied. pellant’s for a motion it, I you will tell I don’t believe know it. it. ‍​‌‌​‌​​‌​‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‍I know One оf them said I don’t know was in rape conviction Appellant’s 1969 it. records, evidence, prison which as were his Court, please ten-year “MR. If it a PRIEST: the received showed that he had records, he the is expressing is outside record. He reading sentence. From right his has personal opinion appel which he no ascertain that jury easily the could to do. years. the ten served full lant had not quoted argument, the Without approving evidence,

“MR. CONAWAY: From the circumstances the we under the hold that Your Honor. by prompt in cured the impropriety was Overruled, “THE Counsel. COURT: Holloway v. the trial court. struction of exception. “MR. PRIEST: Note our (Tex.Cr.App.1975); State, 525 165 S.W.2d “MR. From the evidence CONAWAY: State, (Tex.Cr. 166 Hughes v. 493 S.W.2d know, must, you guilty. is State, v. 422 S.W.2d App.1972); Graham lawyers expressed One of his own the (Tex.Cr.App.1968). 922 opinion, got up his had there after client parole law The second reference to the said, woman,’ and T didn’t kill that phase of the punishment the during came lawyer said didn’t believe him. own as follows: prosecutor argued The trial. You see?” going are They “MR. ... WHITE: inject personal must not their Prosecutors well, down up he is locked you, tell if guilt jury into opinion of the accused’s their get out and do there for life then he can’t State, argument. v. 499 7 Baldwin S.W.2d Well, what things. you those remember However, (Tex.Cr.App.1973). argument remember the doctor told complained analysis here an is based on gentle- facts of this ladies the evidence reasonable deduc heard men, You forget them. don’t State, tion therefrom. 500 See Sikes v. ‘Well, four.’ he did ten in say, the doctor (Tex.Cr.App.1973); Lacy v. S.W.2d penitentiary gates And the State, 374 244 (Tex.Cr.App.1963). S.W.2d Franklin to Donald opened and out came Furthermore, was invited argument ravage in Bexar people rape the statements of defense counsel. See Hill And, it on have County. if want State, (Tex.Cr.App.1975); v. S.W.2d man out of the to let this your conscience State, (Tex.Cr. v. Hefley S.W.2d again- penitentiary did err in App.1973). The trial court objection. overruling appellant’s Honor, Your PRIEST: “MR. go contrary asking jury expressly prosecutor Appellant contends Court’s instructions. to the improper twice made an reference objection “THE COURT: Sustain references parole law. The first these it. phase of the trial. during guilt occurred Although prosecu- the statements of the jury

“MR. We ask the PRIEST: from the disregard instructed to com- tor were a reasonable deduction Counsel’s evidence, prior appellant’s ment. the evidence of for the sole been admitted conviction had jury “THE I will instruct the COURT: jury determining purpose assisting are bound to in- follow Court’s prosecu- credibility as a witness. charge structions in the of the Court.” jury to consider argument tor’s asked the Appellant’s motion for a mistrial was de- determining prior conviction nied. evidence. The trial weight physical charge The court’s contained ob- appellant’s court should have sustained objec- several instructions. The State, Livingston v. jection. See tion was not sufficient preserve the al- (Tex.Cr.App.1976); Marshburn S.W.2d 821 Sloan leged error. S.W.2d 913 State, supra. Furthermore, error, (Tex.Cr.App.1974). Although objection been should have any, prompt if was cured the trial court’s sustained, require the error does not a re- Hughes instruction to the jury. principal point The of the chal- versal. 493 Graham (Tex.Cr.App.1973); S.W.2d 166 lenged argument, appel- that the absence of State, State, v. supra. Cf. Clanton v. 528 fingerprints lant’s on the deceased’s did car Marshburn 250 (Tex.Cr.App.1975); S.W.2d appellant not mean that was not the assail- State, v. (Tex.Cr.App.1975). S.W.2d 900 ant, prosecutor one the entitled to was was Complaint is prosecutor made that Furthermore, physical make. evidence argued improperly jury that the should con- substantial, against appellant was appellant prior vict on his record. The com- charge jury to consider court’s directed the plaint following: is based appellant’s prior only conviction as it relat- Now, recall, “MR. CONAWAY: ... credibility. ed to his Under the circum- too fingerprints that his aren’t found on stances, Threadgill the error was harmless. But, again, State, recall this: 239 S.W.2d 813 [deceased’s 156 Tex.Cr.R. car]. He State, rapist. is a convicted He has been (1951); Everett v. 153 Tex.Cr.R. there, you grabbing see. And he is not S.W.2d car, grabbing he is her. prosecutor, that the Appellant alleges Court, “MR. please PRIEST: If it improperly bolstered the argument, Honor, Your suggesting is to the jury credibility police depart- Antonio San they should use prior the defendant’s homi- generally, ment and the head purpose conviction for some other than to particular. complained- cide bureau in The

judge object his credibility and we to it argument follows: they disregard and ask be instructed to it. Keene-Now, “Detective here is a man “THE pro- COURT: Overruled. Let’s with the they call a liar. He has been ceed. Department eigh- Antonio Police for San exception. “MR. Note our is of the homicide years. PRIEST: teen He head Antonio, Now, living I think bureau. San ahead, “THE COURT: Go Counsel. there, police department has excellent person “MR. A who has CONAWAY: proud I good We have a one. am [sic]. been convicted of rape punished of it.” be, going sentence of ten years is appellant’s submit careful the second you, prior arguments, more In their around, time He didn’t leave called you see. counsel had on several occasions occasion, appel any fingerprints on the car. That doesn’t Keene a one such liar. On it, stated, sat just mean he didn’t touch means he “... David Keene lant’s counsel dog.” like a any fingerprints didn’t leave on the car. witness stand and lied Furthermore, That’s all....” counsel had ar appellant’s police appellant’s complaint. had Patterson gued that the Antonio been See San State, (Tex.Cr.App.1974); handling physical careless evidence. S.W.2d (Tex. Lamberson v. prosecutor’s was invited. S.W.2d The statement Furthermore, the remark of (Tex.Cr.App. Cr.App.1974). 519 S.W.2d 443 Lapp of a prosecutor merely a statement 1975). that, jury of which was aware: fact Finally, complains that the clos- appellant guilty capital they appellant should find ing guilt at the prosecutor remarks of murder, the evidence they would then hear to convict on the phase jury invited the is regard punishment. No error would later basis of evidence the State presented. The bring prosecutor’s forward. statement the appellant The record discloses that objection were as follows: had a trial in which he was afforded all “MR. ... I will ask CONAWAY: pen- The extreme rights. his constitutional capital to return a verdict of murder appropriate alty which has been assessed against Donald Gene Franklin because considering background did, proceed and we will what enormity crime and proceeding to the of this trial and second of its commission. circumstances [Empha- will hear more him. sis judgment is affirmed. added.] very

“Thank much. DAVIS, J., right. “THE All Take the in the result. COURT: W. C. concurs jury jury arrange room. You can ODOM, J., dissents. When to take the to lunch. jury in the put come back them room PHILLIPS, dissenting. Judge, me if notify you deliberate and have strayed majority I to have believe problem. go with the bailiff. You process of principles from sound due “Everybody keep your seat while the determination of in their due course law bailiff,

jury files out. Go with the ladies 20, 21, appellant's of Error Grounds gentlemen. error. not constitute reversible do When I they “MR. TINKER: leave heinous, was Although crime committed record, something in the say would like to still control our deter- the rule of law must Your Honor. for ensu- dissent mination. I therefore right. (Thereupon, “THE All COURT: ing reasons. from the at this time the taken Courtroom.) that and ask for a mistrial at

the second comment of “MR. TINKER: Your ^[******] hearing. hear more about him when-at counsel in I his argument want Honor, this object the last time. said ings This story related lant appellant’s failure to In Grounds of Error complains omission which appellant .1 prosecutor’s relate the part during previously pretrial hear- exculpatory use of appellant testified. appel- That right. impeach “THE All is de- prosecutor COURT: was used during nied.” exculpatory story appellant’s appel- cross-examination prosecutor’s objection Van timely. The was not See lant. (Tex.Cr. Bibber S.W.2d re- pretrial proceedings 157 Tex.Cr.R. App.1963); The record Smith the stand objection took appellant flects that 246 S.W.2d was for the time specify the times. The first general, and did not basis three Your, Honor, again, limited “MR. we compe- whether he was PRIEST: particular tent at that time to assist his will for the limited call defendant attorneys conducting their hear- rights and his purpose of this motion ing suppress motion to evi- surrounding that counsel and the issues suppress dence and motion to identification. question. appellant having At that time testified to right. Have a “THE COURT: All sustained problems night prior medical ahead, proceed.” seat. Go counsel. Let’s hearing to the required which medication hearing At testified and that lingering there were some afteref- strictly question of whether he re- to the impaired fects from such medication which quested given and was the assistance of ability to assist his attorneys. Later lineup counsel before a Antonio San hearings the actual day motion questions relating No Department. Police suppress evidence and identification exculpatory story were asked appellant were conducted. Prior to such testified. appellant while he hearings, following colloquy with the court place: took appel- During the cross-examination Honor,

“MR. Your prosecutor PRIEST: I want to the same who lant at trial call the defendant to the stand for the pretrial hearings, follow- conducted the But, purpose only. of the motion before I ing transpired: reurge do I would to the Court the mo- “QUESTIONS BY MR. CONAWAY: tion we have previously filed to restrict “Q Now, Donald, you let me ask some- the cross-examination of the defendant story thing? Have ever told this by the brought State to matters out on you just told here the Court- having bearing direct on the motion to today room before? suppress nothing else. Yes, I “A have. Part of it. “THE COURT: I think the case law if holds he takes the “Q story stand he can take told that to me Have ever the stand on suppress the motion to before? purposes limited related to the motion No, “A I haven’t. So, itself. assume that is what are “Q you that have been un- Isn’t it true relating it to. der oath in a Courtroom before correct, “MR. your PRIEST: That is proceed- Judge previous Barlow in Honor. one mum- ings you never told us Judge, per- “MR. CONAWAY: I am in just bling you word about that talé fect accordance proposition with the told us? taking the defendant the stand for limit- object We will “MR. PRIEST: added) ed purposes.” (Emphasis question. your that As Honor knows The scоpe of the direct examination at this engaged pretrial in we were then mat- hearing related to the circumstances sur- ters in which these matters were not rounding the appellant’s arrest and execu- object question relevant and we tion of the Department San Antonio Police on that basis. consent to search form. The district attor- Well, COURT: I will sustain “THE ney attempted to ask several incriminating objection to it.

questions, objected all of which were to and “MR. I think I am enti- CONAWAY: objections said were sustained. oppor- tled to show that he has had an The next time the testified was oath to offer that tale tunity under subsequent hearing on the motion to so, Judge. do before and he did not suppress Again, identification. the out- object, We Your set “MR. PRIEST: hearing, following colloquy of that transpired with the court: Honor. “MR. Please note our ex- when- PRIEST:

“MR. CONAWAY: At a time ception. he waived Fifth Amendment ever rights and took the stand. CONAWAY: “QUESTIONS BY MR. is- problem

“THE COURT: The mumbling “Q you word say Did one recognize “MR. CONAWAY: I Eugene swapped pants Tealer problem. came and you, Eugene with Tealer purse, fire to woman’s poor set Object “MR. PRIEST: last you say word about never did one statement Counsel. before, having seen that knife did this, is problem “THE COURT: The say loaning one you word about tryI cases one after another. have Eugene open car to Tealer in Court in Court records of what occurs Court Judge Oath this same under before and, is, the truth I don’t remember all Antonio, you say Did in Texas? San time, what issues were or what word at all? one was involved. please If “MR. PRIEST: question “MR. My CONAWAY: is Court, he was not asked those it, you Do Judge. does he remember questions. stand taking remember the witness in wasn’t “MR. CONAWAY: That Antonio, San Texas? have Did could told question. you-you repeating “MR. He is PRIEST: chose not that tale down there and to and very question objected we we to, you? didn’t ruling. request Honor, “MR. TINKER: Your there ques- “THE COURT: What is spe- hearing for a was a in this Court tion? nothing purpose had to do cific previously “MR. PRIEST: The Court may not have what he the objection. sustained Court, my opinion, com- said. The ques- “THE COURT: What allowing kind mitting error in this tion? The first rea- interrogation go on. proceedings is BY son have “QUESTIONS MR. CONAWAY: to be done supposed are because “Q taking Do remember witness anything into prior getting Franklin, stand, Anto- Donald San This witness was jury. presence Texas, Judge, nio, same before this fact, this this question. not asked Barlow; asking you James E. me permit specifically would Court being present, Priest questions, Mr. kind of of this man. Reporter being same Court wasn’t there. “MR. CONAWAY: He and me present the Courtroom the have read rec- asking you about what “MR. TINKER: I questions ord, I is here and will Your Honor. It happened at that house out there the offer it to you word about Eu- Court. say and did one in being Tealer gene anybody or longer are no “THE We COURT: house or- objection The is Counsel. pretrial, overruled. say “MR. PRIEST: Don’t word position is our Judge rules. It until me make a Let “MR. TINKER: making comments ruling undue at tender Court’s privi- of the Fifth Amendment exercise time. to-first, we lege. We ask Court is, pre- point “THE COURT:

object question. rules are certain you bound apply before necessarily It is over- that do not right. “THE COURT: All jury. ruled. fact to which he a witness as to a right. silence of TINKER: That’s And

“MR. testified, occurred such silence would not where pretrial you you ruled has he would be Now, in which him circumstances permit questions. to answer under out, to may be used like this expected speak to make it look trying during cross-examina- something witness disguise impeach or hide man tried Wig- not ruled that he could at 825. Section you because Ante tion.” offer, as follows: I on Evidence reads it. Now-and more testify Honor, Reporter’s tell them at the you asked me. I did testified to the defendant at the by offense me, time that the they arrested It is therefore evident that trial-in-chief. thing just same I have finished stat- appellant’s silence in this case did the use of ing.” by Wigmore. justification not fit the cited number of majority goes on to cite a Wigmore The on Evidence The majority cites scope general prior concerning proper for “that the cases the proposition the unrelated 836

of cross-examination. It is worthy press of note evidence on Fourth Amendment that these cases grounds, were not deemed convinc- his not testimony thereafter ing Supreme at Court its decision to admitted him trial on the preclude guilt objection.” the use an issue of makes no of arrestee’s silence unless he 394, following receipt warnings Again, of Miranda 390 U.S. at 88 at 976. S.Ct. however, purposes impeachment directly upon point of cross-exam- Simmons Doyle Ohio, 610, particular express here no ination. v. 426 since statement U.S. 96 by appellant pretrial made his S.Ct. 49 91 the at hear- L.Ed.2d It is ac- ings purpose was introduced for the of knowledged that Doyle expressly reserved showing guilt impeachment. his or for In- on the specific decision issue now before stead, it Court; e., appellant say was what did not i. whether use of a defend- pretrial at that hearings was used ant’s a pretrial silence at con- hearing can against him to create inference that his stitutionally be for purposes utilized recently version of events at the trial was a impeachment. Notwithstanding the Su- unworthy fabricated “tale” of belief.1 Be- preme Court’s reluctance to address this hearings fore the pretrial appellant’s two issue, certain principles can bе distilled suppress motion to evidence idéntifica- opinion Doyle. from the Supreme tion, the court was advised that testimo- Court noted that “every post arrest silence ny was purpose for the limited the issues is insolubly ambiguous light ...” in of its by raised said motions-a limitation ac- that mandate arrestee every be accorded knowledged by pros- and the both the court warnings, certain being one of which at pretrials. ecutor the time of the At no right Arizona, to remain silent. Miranda v. pretrial time during the of the hear- course U.S. 16 L.Ed.2d 694 S.Ct. ings were the facts or circumstances sur- (1966). The went on decision to state that rounding Al- the actual crime relevant. since the arrestee had been advised that he though were warnings no formal rendered right silent, has remain “it would be the appellant pretrial the time fundamentally a deprivation unfair and hearings required to be offered an arres- due process person’s allow the arrested tee at pursuant the time of to Miran- arrest silence to be impeach explana- used to an da, it appellant clear was was tion subsequently offered at trial.” S., relying principle Simmons U. S.Ct. at 2245. In respect this vein and with testimony supra, i. e.: particular issue before this Court pretrial hearings offer at the was concerning the use of silence at purposes determining for the limited hearing impeach time legal questions sup- raised the motion to him, S., case of U. Simmons U.S. be no press any inquiry broader 377, 381, 967, 969, S.Ct. L.Ed.2d 1247 than necessary. (1968), takes a role similar to that held Doyle Miranda in decision. Sim- analogous presented An situation mons, a co-defendant testified at the mo- S., case of Johnson U. U.S. tion suppress hearing he owned the (1943). At 87 L.Ed. 704 Johnson’s money in which wrappers suitcase from the defendant took the stand and testi- recently bank that was robbed were found. issues, fied to but chose to invoke numerous This same testimony introduced at the the Fifth privilege against Amendment trial-in-chief to establish the co-defend- having self-incrimination testified to after ownership suitcase, ant’s and the judge granted certain matters. The Supreme Court held that “when a defend- of privilege, erroneously, yet claim albeit ant sup- of a support prosecutor argued testifies motion its invocation colloquy concerning subject 1. See the reproduced cross-examination infra 838 & 839. 566, L.Ed. 1054 271 U.S. S.Ct. to be

showed the defendant to be a liar and v. of Johnson (1926), survived the decisions charged. particular Of guilty the crime California, 380 S., supra, U. and Griffin follow- to the case at bar is the importance 14 L.Ed.2d 609, 85 S.Ct. U.S. ing excerpt from Johnson: further wrote: (1965).2 The court in Hale having the assurance of the “An accused to establish government fails “If the privilege claim of would be court that his silence between inconsistency threshold if his might entrapped well be granted exculpatory and later police at the station then be privilege could assertion lacks trial, of silence proof testimony at might against used him. His real choice value and must probative any significant apparent from his then be one different * * * at be excluded.” U.S. therefore Elementary requires fairness one. at 2136. 95 S.Ct. that an accused should not be misled on that score. If advised the court that by the equally applicable to principle This though granted of privilege his claim making our determination case at bar him, he well employed against would be pretrial at the silence appellant’s the might never claim it. If he received as- tes- hearings concerning the transactions he claimed, granted surance that it will be if inconsisten- presented to at trial no tified outright, or if granted it is claimed and of the evi- introduction justifying cies right every expect has issues any purpose. dence for Since ruling good is made in faith and that the did not involve pretrial raised motion rule comment will be observed.” offense it- concerning the actual questions reason, self, than there was a valid other Although pursu- this decision was rendered to remain si- culpability, appellant for the supervisory powers ant to the Su- stages concerning his lent at the Court, preme it is relevant to the determi- exculpatory story. This demonstrates nation that the use of silence in attach to silence ambiguity that can the case at bar concepts violated of elemen- subsequently how the use that silence tary deprived fairness and prejudice a defendant impeach unfairly can due and due Princi- process course of law. in his own behalf. who chooses to ples elementary equally ap- fairness are Ohio, plicable Raley to the states. cases that majority The cites numerous which do validity, U.S. S.Ct. 3 L.Ed.2d 1344 but unquestioned are of (1959). issue before us. particular not address the engages defendant It is clear that when the In another case pursuant decided stand, previ- in a clear falsehood Supreme supervisory power over Court’s used to statements can be ous inconsistent courts, lower federal it was determined that But it is characteristic of impeach him.3 probative value of a defendant’s silence majority the cases cited at respect the time of arrest with to his at being impeach items used to the witness outweighed by preju alibi defense was which the trial consist of actual statements impact using dicial silence to vаlue probative more carry significantly Hale, impeach the defendant. U. S. v. silence. than 171, 95 2133, 45 L.Ed.2d 99 U.S. confronting court avoided the constitu I would be remiss not expressly S., of harm- addressing potential question tional of whether Raffel v. U. probative majority some force and was relies on first trial was of 2. It should be noted that the S., petitioner petition- impeach supra. therefore admissible to Raffel v. U. that case testily er but chose to the second trial. did the first trial testify at the second trial to refute the testimo- ny Ohio, of a State’s witness. The court found that Doyle 96 S.Ct. See Footnote 11 in 3. testimony since of the State’s witness at 2240 at 2245. same, at the the two trials was the the silence 838 Chapman, government prosecutor In the prosecutor’s actions this

lessness appears arresting It that the harmless officer if the police case. clear the asked errors. apply Doyle rule does -like anything error after his arrest to said defendant States, Chapman v. United 547 F.2d given. was single, negative answer which 1977). forth in (5th Cir. The rule as set any of witness con- questioning No further supra, is Chapman, as follows: post-arrest silence cerning the defendant’s prosecution conducted, “... When the uses defend- nor reference made any was was impeach an post-arrest ant’s silence to closing arguments to such silence. during exculpatory story offered defendant the showing that light In of evidence directly links prosecution at trial and was rear bank defendant arrested at the implausibility exculpatory sto- door, into the door with a crowbar inserted ry ostensibly to the inconsist- defendant’s single answer was con- question silent, act of reversible er- remaining ent A similar conclu- sidered harmless error. if story transpar- ror results even is Havener, sion was reached Meeks v. frivolous. ently [Citations omitted.] 1976). (6th Impson, F.2d 9 Cir. U. See S. prosecutor directly “When the does (5th curiam), Cir.) (per vacat- 506 F.2d the fact of silence to his tie defendant’s remanded, 1031, 95 ed and 422 U.S. e., story, prosecu- exculpatory i. when remand, (1975), L.Ed.2d 688 tor elicits that fact on direct examination (5th 1976); Sharp, Cir. and U. S. v. F.2d on it or commenting and refrains from (5th 1975), vacated and F.2d 786 Cir. is adverting again, to it and the remanded, 258, 46 423 U.S. 96 S.Ct. told that such silence can be used never remand, (5th 536 F.2d 601 L.Ed.2d 246 reversible er- impeachment purposes, 1976) curiam). (per Cir. if the is not exculpatory story ror results merely a the case at bar was not there guilt not totally implausible or indicia of failure single reference overwhelming. [Citation omitted.] story at the exculpatory relate the single “When there is but a reference above hearing. reproduced As the colloquy silence, to the fact of defendаnt’s shows, ap- to the question pressed was is nor repeated the reference neither during prosecutor’s five times pellant exculpatory sto- linked with defendant’s purpose and the cross-examination of him transpar- ry, exculpatory story and the by the clearly was stated guilt frivolous of ently and evidence it in that he wished to show that prosecutor overwhelming, otherwise the reference his failure relate was a “tale” harmless defendant’s silence constitutes dishonesty of his was indicative previously instantiate Chapman’s error. fate is to prose- and, inferentially, guilt. Yet rule. this third here. The stop not choose to cutor did into error “The infusion of ‘harmlessness’ offi- police several inquired of prosecutor exception, the doctrine must be to relate as to the defendant’s failure cers A miniscule sparingly employed. must be following his exculpatory story to them gargantuan error must coalesce warnings.4 This tactic Miranda arrest and an displays even when guilt, the accused fell prosecutor the error the exacerbated Pantagruelian dimen- imagination upon his initial cross-examination into sions.” 547 F.2d at 1249-1250. any policeman anything any during Was there time the course of the “Q 4. At “Q did, yourself, your instruc- Mr. Franklin either under conversation had with tions, any telling you at all kept officers was he ever from those homicide there prevented point Gene Franklin kind clarification was Mr. Donald of-now [at telling anything wanted to sought from on which Franklin the district Mr. killing Mary Margaret attorney Moran? referring made was and it was No, sir; plenty opportu- referring given defend- clear that he “A nities. ant.] been related to repre- exculpatory story had additionally and was officer. particular light prose- the fact that hensible voir dire examination cutor knew from the line was sub- inquiry similar also A during trial-in- same witness the the portion of the during rebuttal mitted the that witness knew that an excul- chief that who conducted police to the officer story related to other investi- patory was who admitted that and lineup examination interroga- any actual presence. his This involved in gating officers outside he was not tion.5 same witness admitted on recross-examina- during portion rebuttal of the trial

tion related to above Although inquiries story that he knew that such a had been Doyle on the basis of a objected were not investi- during related to other officers are process, violation of due v. Ohio gation of this cause. It was also known by this Court to the determination relevant the cross-examination prosecutor complained from cross-exami- of whether investigating of the that this was error. Of additional of one officers nation harmless then, sir, any point during your you, the course of Now me ask whether At let “Q “Q you pres- interrogation did questioned or not him of Donald Gene Franklin about you bloody ence of inside tell that there an individu- those trousers he ever Tealer, Eugene bucket inside his house? T-e-a-1- al e-r, name of Yes, sir; thought Smokey? “A I did. he that you No, him Whenever would “A sir. “Q that, Franklin, happened? ever, about what Gene ever Did he Donald “Q say just up He you “A would clam and wouldn’t he to a location where offer take anything. thought Smokey? he find Did he could sir, you, you ques- Let me ask whether “Q do ever that? presence No, tioned him about the of articles sir. “A Mary belonged Margaret that Moran in you thought he knew Did he tell he ever “Q garbage his can? Smokey lived? where Yes, sir, “A I did. No, sir. “A you questioning When were him about “Q you any- Did he ever tell name “Q items, he those what would do? body, just Smokey? he other than Did just “A and Refuse to answer clamed [sic] you anything other that? ever tell than up. sir; No, name even tell me the “A he didn’t sir, ques- you, you Let me ask whether “Q Smokey.” tioned him the blood was found about that house, carpet you inside his whether or any At were 5. time whenever “Q you questioned there, conducting him about the blood during him the course carpet that was found on the his car? lineups, you anything inside ever tell these did he Yes, “A sir. having car to loaned his someone about that, you what When asked ‍​‌‌​‌​​‌​‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‍him about disappeared night “Q that dollars she for ten he would do? having pants to loaned his someone up. “A answer and he clam Refuse to having- night disappeared, that she parents, Did fa- either of the either the multiple questions-no “Q [objection to the rul- you ther or mother ever come to ing] somebody say, ‘You look for else better any Franklin time Mr. Donald Gene At did “Q Smokey. named son the car to Our loaned Smokey you he loaned his car to tell had story Any him. He told us that.’ of that night? on that any you [Ob- ever come to from source? No, “A sir. hearsay jection was sus- on the basis of anything-did you gag him or in Was there any way prevent “Q tained.] you any- telling him from any period you during At were time “Q you? thing tell he wanted to speaking to Donald Gene Franklin No, sir. “A Donald ever did Gene Franklin then, time, he, you that Now did tell “Q you driving the street in tell he was down Smokey named he had met a man only his Buick and saw a man Smokey knew he Smokey night had and that borrowed Smokey bor- wanted to car? Smokey loaned row car and that had No, never mentioned “A sir. Mr. Franklin him ten to borrow Did dollars his car? anything to in reference to Mr. Smo- me tell ever that? key anybody.” No, sir; “A he did not. assume that he did tell them that “Now ques- of the relevance our determination that he did. non, story, and I believe closing Smokey vel аre the tion of harmlessness officers, my T loaned car referring to He told those arguments prosecutor But, told is all he them. Smokey.’ times fol- silence at various knew, Because, see, driving that attempted which he lowing his arrest there, Mr. car, out Carter exculpa- people that two up implausibility link him in Galvin, put going Mr. are tory story. lot. parking left while this con- “Taken out there and known titled to believe? Lieutenant Keene or this convicted victed didn’t even know his name and Lieutenant Keene said. that he ‡ lying rapist by Smokey. goes ^[*] lying rapist? and sees n : would have You ^[*] Now, who is en- a man. that he heard what n it wasn’t believe n him down to the of evidence talk to him. this time his mother account for a lot timony “But, ^[*] he has shows, ^[*] They got as well as ^[*] of other police to, interrogate him. him, is when present. ^[*] station too. his father. bits and he ^[*] They take testifies, The tes- pieces ^[*] they By then, raping-kidnapping- “So, “Now if this they bring Franklin’s Donald Gene had told And, sentence murderer year father with them. here is another ten morning Smokey story that interesting I had Donald Gene them that point. his mother you maybe don’t think that brought Franklin’s father into the court- you and told have forward here in come room here. You know he is Cor- happen. The Smo- Christi, there with that? It flat did pus Texas. He is out very picture them, Now, story only came into the police. why key with did They see. game, you very fa- late in the they not call Donald Franklin’s Gene they morning before him that told the talked to you ther to tell that he had lineup. put him in [Objection Smokey story? overruled.] good sense- call, “Now, who in the name they for them to if right “He is there time time, by the Now, recall that is this He is there and if there wanted to. witness stand in the sitting up he here Smokey of truth in that one centilla [sic] way is no Franklin, There right. cool. That’s Donald Gene he is story that in ability to, my lack son, going I am with step-son of the man-not man, I am ever you know he cross-examination you, told don’t step-son, if Smokey, story about going said that. to shake his got up would have here and has he Because being thicker than I to him for a week. step-son, Even a blood talk testify. before, how to water, have he knows or even someone that testified if capacity step-son, of a raised in the evi- is outside the “MR. PRIEST: That true, don’t what he had said were Honor. again, Your dence up that man would have been here know objection “THE COURT: Sustain were there and testifying? Yes. We it. Franklin, step-son, my Donald told Gene some- thought “MR. CONAWAY: to him. He had loaned Smokey story previous had been he body testified him about the ten pants, him the told fact, he had been argued hearings. dollars, him car. told him he loaned previous hearings. He didn’t Smokey just left. Told them say that. He was here and could have if ^{[*] [*] [*] [*] [*] [*]} he, fact, to do so position was in a is, to believe he wants point “The violating an oath. without street, Smokey. sees driving down * * * * * * your car me borrow Smokey says, ‘Let your pants give you clearly mandatory procedural and I will most stat- ten dollars,’ Smokey reappears and that then 38.08, ute of this Article V.A.C.C.P.6 State. evening, later checks into his testify did Although house, got and that is how these items preliminary hearings, prosecutor’s ref- into his house. exculpato- erence to his failure to relate “But, here, was Smokey if that is Smo- clearly upon a comment ry story key. They told you they going were appellant’s invocation of his Fifth Amend- Smokey. Why to call didn’t it? they do through him rights ment as accorded Because Smokey going go along ain’t Fourteenth Amendment to the United going that. He is not to take the S., States Constitution and Simmons U. rap for this guy’s rape-murder, you see. supra. prosecutor’s questions were They could have called him if want- upon appel- clearly designed to comment to, they They ed didn’t. could have called specific yet lant’s failure to irrele- mother, they They didn’t. could have inquiry vant facts. A similar line of father, called his they didn’t. The first Scroggins found to be reversible error time got that entire tale heard by any- This 97 Tex.Cr.R. 263 S.W. 303. body got is when he up there and told it ap- Court construed Article C.C.P.7 to to you." (Emphasis added) ply not to comments on the defend- only conclusion, it is clear elementary his trial testify ant’s failure to at but also fairness was denied to this by defendant proceed- at testify any pretrial failure to prosecutor’s attempt impeach him with ings. During cross-examination of the de- his failure to relate the exculpatory story Scroggins, prosecutor fendant in asked during his testimony pretrial hearings testifying if the defendant was for the first which time such story was not relevant. affirmatively responded. time to which he majority’s But disposition of objection The to the and answer ground of error open would in effect sustained, yet prosecutor continued prosecutors door to using any pretrial si by asking they examining “When lence save for had an following defendant’s Malakoff, you suffering arrest trial at were from giving and the warnings, Miranda impeachment purposes. lockjaw impediment your speech?” majority’s any The or disposition again sustained, once places a criminal de objection prose- The but the upon fendant the horns of a dilemma when pursued by asking, “Why you cutor didn’t evaluating pursue whether his Fourth examining up tell the court there at that rights stages. Amendment at the pretrial have told the here?” what This Hobson’s choice was erased from crimi objection questions Each to these was sus- S., nal jurisprudence in Simmons U. su tained, yet this construed it as revers- Court pra, majority but the would resurrect it to 38.08, principle ible error. The of Article again once haunt the cоurtrooms of this V.A.C.C.P., protect predecessor, and its State. defendants when invoke their Fifth rights against Aside from the issue in- Amendment self-incrimina- constitutional volved, prosecutor’s tion, actions just readily violated as to the case at bar apply 38.08, him, V.A.C.C.P., provides: 6. Article nor shall the same be or alluded to cause; pro- in commented vided, counsel “Any defendant in a criminal action shall be per- that where there are two or more therein, permitted testify in his own behalf indicted, jointly charged sons and a sever- any testify but the failure of defendant to so had, privilege testifying ance is shall be against shall not be taken as a circumstance only him, person extended to the on trial.” nor shall the same be alluded to or special commentary As noted in the to Article commented on counsel the cause.” 38.08, V.A.C.C.P., only proviso pre- “Any 7. defendant in a criminal action shall be ceding Article 790 was stricken in the reenact- therein, permitted testify in his own behalf ment of Article 38.08 in 1965. any testify but the failure of defendant to so against shall not be taken as a circumstance process ant’s to due and due course of notwithstanding right the fact that ac- statute, law, mandatory a State tually pretrial hearings. testified at the As cannot be considered harmless be- error above, repeatedly right noted he had a doubt, I must dissent yond a reasonable necessary to’incriminate himself on matters disposition of majority’s from the these is- disposition of his Fourth Amendment sues. nor irrelevant issue collateral and issues. Thus, propounded by pros- questions during ecutor his cross-examination were II clearly upon appellant’s failure comment disposes appellant’s majority testify beyond scope to matters regarding of error number seven ground I, pretrial hearings.8 Article See Sec. venireperson Askey’s disqualification as Constitution; Dudley Texas excerpts from juror by selectively quoting (Tex.Cr.App.).

548 S.W.2d concluding examination and the voir dire Finding the error involved under Wither disqualified she was 19, 20, Illinois, Grounds of Error and 21 to violate spoon U.S. fairness, (1968).9 notions of defend-

fundamental 20 L.Ed.2d going at all the issues in the to have to look 8. When a defendant takes the stand to trial, through go in the case all the issues case and case and what the facts are decide contradicted, impeached, “... He exactly in the case. what occurred attacked, sustained, up, discredited bolstered “Now, what the knew would the fact himself, give cross- made to evidence punishment punishment was or what matter, new and treated in examined as to be, your could would that effect [sic] testifying every respect other witness on the facts in the case? deliberations defendant, except in behalf of where some it effect “JUROR: You said would [sic] statute forbids certain matters to be used me? him, against proof such as of his conviction Yes, “THE sir. COURT: case, present on a former trial of the No, “JUROR: it won’t. failure to on a former trial or a hear- right. ” ahead. “THE COURT: All Go added.) ing, (Emphasis and the like .... you, sir. “MR. CONAWAY: Thank Code, Edition, Branch’s Ann.Penal 2nd Sec. BY MR. CONAWAY: “QUESTIONS 168, p. 170. see, Askey, question that Mrs. Let’s “Q you required Judge posed is to be to Askey- 9. “THE Mrs. COURT: everybody to be that is about asked of qualified Honor, “MR. TINKER: Your it is difficult ser- in terms of or talked to just I it to hear. want to remind Court And, you question for he asked that vice. is-when this talks to the witness it is Court And, somewhat it touched that reason. difficult to hear. penalty your feelings death on about the “THE Under the law whenever COURT: knowledge if the because he asked you up juror brought are here as a in a coming play penalty into in a case death my duty you ques- capital a case it is to ask this, capital murder whether like a you beginning tion in the to be sure that knowledge, that that is the idea question. legisla- understand the The Texas punishment being to either death limited says person passed is a statute that no ture life, death, limited or punishments life or those are the qualified juror he states to serve as a unless for someone convicted of mandatory penalty of under oath that capital if that murder-the Court asked imprisonment life will not effect death or for you would influence in fact determinations any his deliberation on issue of fact. [sic] juror you you it if served as a said any What I mean this: In construe that to is not; is that correct? charged capital in with a case which a man is “A answer. No audible charged offense-in this case the defendant is would, And, you gentleman here if this “Q basically capital two with murder-there are taking every- machine is down with this possible punishments If he is in that case. thing everybody says with in connection guilty possible punishments are found this, though you your if nod head even imprisonment That is all death or for life. affirmatively you your I head and un- nod And, punishment that involved. is it, just puts head and nodded derstand you question assumes that are is the statute you speak so that he can effect so if out start, you going know that when we see? you said it there what it is that the record And, you juror you as a are if are selected clearer. record a whole lot will make the crime, knowing by your participa- ble persons tion in the trial that the might on trial your you about little more ask “I will death, put you ever do could you penalty. Have feelings about the death keeping your religious with own you any thought knew given since at all it keeping your beliefs and in with con- Thursdаy, being Tuesday, that this from science? capital indictment case? The murder was a my guess-it “A I don’t know. I is not reli- capital mur- charges that the defendant conscience, gious guess my belief. I it I is Tuesday had at least since You have der. just guess. punishing I believe in them. aspect it. think about that until now to So, punishing “THE COURT: She believes in you you have whether or not me ask let says but she she doesn’t believe the death against scruples inflic- conscientious penalty. She said it three times. punishment for crime? of death tion BY MR. CONAWAY: “QUESTIONS punishment. capital I believe in “A don’t feeling you object punish- Your is don’t “Q right. All “Q you opposed ment short death but are question? “A Is that penalty? to the death are are ones used The words “Q Against “MR. WHITE: it. law, my at all. required choice not against “MR. CONAWAY: You are simply fact, up I would use if it were to me penalty? death words, you you, do ask how I would these Yes, I “JUROR: am. you penalty, are about the death feel BY MR. CONAWAY: “QUESTIONS way people it? That is the or it, definitely against You are “Q there is no usually about it. think your mind about that? against it. “A I am Yes, sir; I sure am. “A Now, right. on-What is that based All your religious “Q you, ma’am. Thank “MR. CONAWAY: preference? cause, challenge for Your Honor. We will “A Methodist. May questions, I ask some “MR. TINKER: you your active in church? Are “Q Your Honor? Yes, I am. “A Yes, sir. “THE COURT: you go you regularly and do attend Do “Q MR. BY TINKER: “QUESTIONS extent, Sunday maybe, teaching first, Askey, capital you in a case will Mrs. “Q you the church an School or are officer upon, be called if are selected on the anything that nature? or [sic] jury, decide the facts and conclude No, society belong just the women’s “A i guilty person trial is whether or not the Christian service. Okay? guilty. We start out with or not feeling had for have And is it “Q that. life, time, your that it is that is all some “A Yes. by taking proper punish someone not worry You don’t have to “Q the death regardless might have of what he his life done, time, penalty just trying at that are might what his crime no matter person decide the fact about whether the taking your feeling some- Is it have been? guilty guilty. [sic] and not be left to God one’s life should object “MR. CONAWAY: I will to this line men or women? inquiry. prospective I take it he has the you punished, be “A I believe should juror purpose on voir dire for the of rehabili- or, know,- know, prison you go to tating light sustaining her in of the Court’s Right. “Q “A my Now, challenge for cause. to recite to punishment. kind of Some her certainly. punishment, Some sort of “Q “A Uh huh. purpose, “THE COURT: That is the Coun- So, try sel. to direct it to that issue. be he should If commits a crime Honor, someone my “Q “MR. TINKER: Your inten- your punished if state- but I understood tions you opposed to are ment to me was Okay, get “THE COURT: Let’s with it. you go penalty don’t alone the death “MR. TINKER: Sir? somebody strong. punishing go. “THE [sic] COURT: Let’s telling you me? what are Is that question, “MR. TINKER: The as I under- Well, just in it. it, don’t believе “A I stand is whether or it will effect [sic] penalty, is in the death You don’t believe any “Q her deliberations on of fact. issue asking it? that Yes, “THE You COURT: are her about-I you directing “A sir. don’t understand are it at that you feeling proceed. a have had for a but Is that long let’s “Q Honor, promise, “MR. TINKER: I Your time? Yes, sir; trying get that is what I am to at. it is. “A Well, circumstances, go. “THE let’s you, see COURT: under no Could “Q hearing BY MR. TINKER: jury yourself sitting “QUESTIONS So, case, you person guilty guilty find the or not capital “Q murder in a a evidence hear, upon you based the facts first. hearing listening to the evidence Okay? crime, somebody a terri- had committed have to isdo decide what the facts are in you “A Uh huh. Yes. this case. Do follow me that far? any capital kind of murder or “Q case “A I think 1 do. Then, Okay. Now, Okay. deciding kind of murder case. there what the facts “Q hearing you, you will be a worrying second in which aas are can do that without juror, answer, upon would be punishment called to if about whether or not you guilty capital might found the penitentiary? individual be death or life murder, you upon you you then would be called Do think can consider the facts questions, answer being two either answer the and decide about the facts without questions yes And, them, by or no. one of effected the fact that there is a [sic] generally, say possibility would whether or not the that the sentence will be life or person you guilty who had found had com- death? deliberately mitted the murder and with “A I think the sentence would be life. expectation that death would result But, Okay. deciding “Q the facts you jurors and the other would be you disregard possible punish- could upon called upon to answer that based deciding ment of life or death in whether evidence, yes you or no. After person guilty? you is Could decide question you answered that would be guilty worrying without about what upon ques- called to answer an additional punishment might be? tion and that is whether or not there is a Yes, “A I could. probability person you that the had found answering ques- And then in these “Q two guilty likely is to commit crimes of vio- you, you tions that mentioned to after lence in the future which will cause that guilty, you found an individual could an- continuing danger individual society. to be a questions swer those and decide the fact And, you upon would be called questions worry- answers to those without question yes depending answer that upon or no be, ing punishment might what be- you you how felt the facts caused punish- cause the law would assess the Okay? answer it. ment, depending upon your answers? “Now, you don’t have to vote whether or not Yes, “A I could. person gets penalty the death or questions of fact You could answer those “Q get penalty. you does not the death All being by effected the fact without [sic] upon will be called to do is to answer penalty might result or the that the death questions. Okay? result, might depending on life sentence “A Yes. your do that? answers? You could You understand that? “Q “A Yes, Yes, sir. “A sir. Honor, Now, right. All I under those circumstanc- “MR. TINKER: Your hold she is “Q determine, depend- qualified es the law then would ing law. under our answers, your disqualified. whether or not the “The COURT: think she person got penalty got go the death life in to the central room. You can back And, penatentiary go. explain you it would [sic]. will where He you Askey, the law that would either cause the death are ex- “MR. TINKER: Mrs. penalty juror. Douglas? or not and not as Do Are related to cused. saying you? understand what I am “JUROR EXCUSED. “A Yes. Honor, time I “MR. TINKER: Your at this then, circumstances, Under those could “Q object Askey being do want to Mrs. ex- you listen to the facts in the case and quali- cused and would show the court she determine whether the individual was fied under the statutes and said she guilty capital guilty murder or not not be effected both in answers to the [sic] capital being murder without effected [sic] questions the Court and in answers to the in that decision the fact that law me, questions by would not be ef- that she might impose penalty? the death fected in her determination of issues of [sic] “A I wouldn’t know. Further, object fact. I because the-our client sorry, I am ma’am? “Q right has the to a cross section of the have “A I said I don’t know. that, community jury serve on his of You don’t know whether it would effect “Q course, includes those folks who do not be- making or not in the determina- [sic] penalty. lieve in the death tion whether or not the individual Honor, may “Your the record further re- guilty? lady flect that this was black. guilty “A I he was wouldn’t know whether or Yes, “THE sir. COURT: Overruled. not. I wouldn’t know. “MR. TINKER: Does the record reflect right. getting All What I am at is “Q that, Your Honor. you, juror, understand that as a would not “THE I I COURT: don’t think does but ‘Yes, upon say, be called to I think this will let it reflect that.” person ought get penalty,’ the death or get penalty. should not the death All

845 capital against imposition of vote founded Witherspoon decision was evi- any regard without punishment rationale: developed at might that be dence we a sentence “Specifically, hold that them, (2) or that of the case before jury if the cannot be carried out death penalty death toward the attitude their it was cho- imposed or recommended that im- making an prevent them from would excluding for veniremen sen [sic] defendant’s as decision partial general simply they because voiced cause 21, 522, 88 Footnote Page at guilt.” U.S. ex- objections penalty death 1777, 21. Page at Footnote S.Ct. religious scruples pressed conscientious or infliction. can against its No defendant voir dire reproduced from the It is clear cоnstitutionally put be death at the not “au- she would Askey that venireperson tribunal so hands of a selected.” 391 U.S. imposition of against tomatically vote 521, Page Page 88 1776-1777. at S.Ct. at regard to capital punishment without in determin- or would be biased evidence” entitled to a Consequently, defendant Thus, exclu- guilt. her ing the defendant’s cross represents impartial which an mandate direct sion was in violation any given community. section of the Illinois, consti- supra, v. Witherspoon community people opposed there will be error. Even the exclusion tutes reversible people those penalty. Many the death of Wither- venireperson in violation of one will able to follow law and decide Illinois, error. reversible spoon v. constitutes presented case based on evidence 122, 97 Georgia, S.Ct. against vote Davis U.S. automatically would See 399, of the death This is not L.Ed.2d 399 imposition penalty. say that those not con- individuals reasons, individu- foregoing both For the feelings pen- sider their the death towards majori- together, dissent from ally long but as will be able alty; disposition of cause. ty’s consider the death able to penalty and be presented,

evaluate the evidence even in J., ROBERTS, ONION, J., join in P. light opposition penalty, their to such this dissent. people those will be qualified under Before the court en banc. Holman, Witherspoon test. Boulden 478, 1138, U.S. S.Ct. 22 L.Ed.2d 433

(1969); Maxwell v. Bishop, 398 U.S. MOTION ON APPELLANT’S OPINION (1970); S.Ct. 26 L.Ed.2d 221 Grider FOR REHEARING (Tex.Cr.App.). S.W.2d ODOM, Judge. Supreme As stated the United States Witherspoon: Court in appeal is an from a conviction This unambig- a venireman states “Unless punishment, in which the capital [sic] murder vote uously automatically jury’s answers following the affirmative imposition punish- capital 37.071, V.A. under Art. questions submitted matter might ment no the trial what held C.C.P., fixed at Trial was death. reveal, it simply cannot be assumed venue change of County on a in Nueces Page position.” is his 391 U.S. County. Bexar from Page Footnote to file mo- motion for leave Appellant’s 9. Footnote case rehearing granted in this tion for Witherspoon stated The court further 19th, this Court could reconsider so that venirepersons only who could be error, in which grounds of 20th and 21st for cause: excluded rul- court’s is raised the trial complaint cross-examine unmistakably allowing state to ings “... were those who made pre- testify automatically regarding his failure (1) they that him clear question? “THE COURT: hearings exculpatory about mat- What is ters to which he testified at trial. The QUESTIONS BY MR. CONAWAY: grounds of error assert that this cross-ex- “Q. you taking Do remember the wit- improperly amination showed his failure to stand, Franklin, in Anto- ness Donald San post-arrest and used him his nio, Texas, Judge, James before this same pretrial silence and the exercise of his Barlоw; asking you questions, E. me Mr. rights under the Fifth Amendment to the being this same Court Re- present, Priest United States Constitution. porter being present Courtroom This is the cross-examination to which asking questions me about what you directed, grounds together of error are happened out there at that house and did objections rulings: with the Eugene or you say one word about Tealer “Q. Isn’t it you true that have been or- anybody being in that house under oath in a Judge Courtroom before say “MR. a word until PRIEST: Don’t proceedings Barlow in previous you Judge position It is our he is rules. mumbling never told one us word about making undue comments the exercise just you tale told us? privilege. of the Fifth Amendment We object “MR. will PRIEST: We to that to-first, object we ask the Court question. your As Honor knows we were question. then in engaged pretrial matters in which It is over- right. “THE COURT: All

these matters were not relevant and we ruled. object to the question on that basis. Well,

“THE COURT: I will sustain the excep- note our “MR. Please PRIEST: objection to it. tion. I

“MR. CONAWAY: think I am enti- QUESTIONS BY MR. CONAWAY: opportunity tled to show that he has had word mumbling “Q. you say one Did under oath to offer that tale before and pants with swapped Tealer Eugene so, Judge. he did not do set fire to you, Eugene came and Tealer object, “MR. We Your Hon- PRIEST: one you say did poor purse, woman’s or. having seen that knife word about never “MR. At a time whenev- CONAWAY: before, one word about loan- you say did rights er waived his Fifth Amendment in Eugene open Tealer ing car to and took the stand. Judge oath before this same Court under problem “THE COURT: The is- Antonio, say one you Texas? Did San recognize “MR. I CONAWAY: word at all? problem. Court, please “MR. If it PRIEST: Object “MR. to the last PRIEST: questions. he was not asked of those statement of Counsel. That wasn’t “MR. CONAWAY: this, problem “THE The I COURT: could have told question. you-you Did try cases one after another. have Court chose not tale down there and, records of what occurs in Court to, you? didn’t is, time, truth I don’t remember all the Honor, there TINKER: Your “MR. what the issues were or what was in- specific for a hearing was a in this Court volved. nothing to do with what purpose that had My question “MR. CONAWAY: is does Court, have said. may may it, Judge. Do remem- he remember committing error my opinion, is Anto- taking ber the witness stand San go interrogation nio, allowing this kind Texas? have on. The first reason repeating “MR. He is PRIEST: supposed are is because proceedings re- very question objected we to and we anything getting into prior to be done quest ruling. were morning you when house on the jury. This witness presence remember that? fact, you arrested. Do question. was not asked this permit specifically would not Court Yes, sir. “A. question of this man.

kind asking you, “Q. right. All And I was “MR. He wasn’t there. CONAWAY: hap- what specifically, questions the house out there at pened record, “MR. TINKER: I hаve read the re- you Do arrested. morning you were It is here and I will offer it Your Honor. that? member to the Court. Yes, I sir. do. “A. longer We are no

“THE COURT: over- objection tell- pretrial, then, Counsel. you do remember “Q. Now about, ruled. my loaned T ing anything me me you Did tell Tealer?’ pants Eugene Let me make a tender “MR. TINKER: anything like that? ruling that time. of the Court’s at questions only I answered the “A. is, pretrial point “THE COURT: The them at the I tell you asked me. did rules that do you are bound certain me, same arrested time that jury. before the necessarily apply stating.” just finished thing have right. “MR. TINKER: That’s And at ap- permit at which pretrial you you ruled would not were three occasions There hearings. Now, pretrial at testimony him answer he is questions. pellant gave re- testified like this man tried occasion trying to make it look On the first as a witness inability appear (sic) something garding or hide be- disquise impaired temporarily due to his testify ruled that he could not at that time you cause from medication Honor, resulting offer, mental alertness about it. Now-and I Your before. When given day he had been Reporter’s pro- notes from that Court following testify that time the called to ceedings. ruling pre- It was your occurred: testifying. vented him from I would like right. counsel]:

“THE All “[Defense COURT: question proof make some also, Honor, we “MR. TINKER: Your competent. whether he request a mistrial at this time because of you Are right. All “THE COURT: already reurge what has occurred and I ready? the Court to look at the Statement ruling

Facts and see the Court’s at that him on put I would like to “[Defense]: time, permit which did not him to and I purpose for that the stand put being to these facts. ishe clearly like it understood and no purpose the stand for that Objection “THE overruled. COURT: other. ahead, for mistrial overruled. Go Motion right.” All Counsel. “THE COURT: trial court hearing the during MR. QUESTIONS BY CONAWAY: Later to a objection sustained a defense Now, then, again, I “Q. my question, with the prosecutor appellant by the put to it, was think ever did answer don’t comment, for limited “he took the stand opportunity tell-you ever had did ago years three two or up until purpose stand in a different sitting on the witness but, holds the Court do that you couldn’t Courtroom, Judge, same defense same for a definite the stand you now can take them, well, least two of Mr. lawyer,-at purpose.” there, were I was Williams and Mr. Priest ap- hearing at which there, Judge Barlow was there and The second sup- on his motion talking pellant were testified certainly were there and we seizure a search and fruits of press happened your out there about what because he did not voluntarily and sion on the know- issue with its opening proposi- ingly sign the consent pursu- to search form subject. tion on the Omitting the interven- ant to which the search was conducted. discussion, ing primarily which was directed appellant When was called at hearing that dispelling to that possibility constitu- the following occurred: violated, tional principles were the court on original submission decided issue in this Honor, Your

“[Defense counsel]: want to call fashion: the defendant to the stand for purposes But, of the motion only. general “It is a rule of evidence that before I do I reurge would to the Court prior of a silence witness as to a fact the motion we have previously filed to testified, to which he has where such restrict the cross examination of the dé- silence occurred under circumstances in

fendant by the State to matters brought out, speak which he expected would be out on direct having bearing on the mo- impeach be used to the witness dur- tion to suppress nothing else. ing cross-examination ... “THE COURT: I think the case law “When the for appellant testified limit- holds if he takes the stand he can take pretrial hearings ed purposes at the the stand on the motion to suppress for properly restricted in its State inter- limited purposes relating to the motion rogation and cross-examination So, itself. I assume that is what you are appellant, appellant but the those hear- relating it to. to, ings testify was free to and had the correct, That “[Defense counsel]: to, excul- opportunity testify the same Your Honor.” patory version of the facts as he later did During jury. the course of before the We hold the trial court hearing this the trial court sustained at least did not in permitting fourteen defense err the State to objections prosecutor’s questions cross-examine appellant before the on cross-examination were why as to exculpa- had not related his outside the scope of hearing or irrele- tory version of the pretrial facts in the vant to proceeding. hearings.” Appellant’s pretrial appearance third as a Upon reconsideration we have decided witness during came a hearing on the ad- incorrect, original opinion that our both missibility of identification testimony the evidentiary grounds state and on consti- State present intended to at trial. When grounds. tutional appellant was called his attorney an- nounced, Honor, “Your again, we will call general quoted rule first above the defendant purpose for the limited showing the wit impeachment by allows rights this motion and his to counsel [at prior ness’s silence “where such silence oc line-up and the issues sur- identification] curred under circumstances in which he rounding question.” during Twice expеcted speak (Empha out.” hearing objections to state questions outside added.) sis not authorize Such a rule does scope hearing were sustained. impeachment showing appellant’s si lence, here, as at the hearings when he original On submission of this case the “was testify” opportu free to and “had the majority reviewed a number of cases that nity testify.” Merely having oppor allowing discussed various rules prohib- tunity say something does not constitute iting impeachment aof witness with vari- circumstances which one would be ex types ous of evidence obtained under vari- pected speak ous out. At the hear demonstrating circumstances. After ings appellant expressly none of the United this case took Supreme States stand, opinions precise- Court discussed there were permission, with the trial court’s ly point, majority tied in its conclu- purpose. for a limited It cannot be said when forced choose “tension” created hearing at a conducted on testifying rights is constitutional assertion of respect issues to which between allowing presents basis defendant testimony would be relevant appellant did such as ap- purpose, limited situation with circumstances which for a here, without waiv- hearings pretrial pellant expected speak would have been to at the It is privilege. subject subsequent ing on of his his Fifth Amendment out matter pretrial his testified at testimony. Appellant’s pretrial hear- clear that constitutional hearings in to assert ing subject was not admissi- order silence aof search regarding the lawfulness general impeachment rights ble rule for under the against be used origi- on seizure of evidence to disposing relied in of this issue on and line-up identifica- him, regarding and nal submission. His in choice used his case. procedures tion case, his appellant’s In this silence about purposes to take the for those limited stand cir- exculpatory story only not was under impermissible “tension” served to avoid the give that did not cumstances rise rights and of those between assertion above; impeachment rule it was discussed against self-in-- privilege assertion his grounded also on an constitu- exercise prohibited. that Simmons Con- crimination against privilege tional self-incrimination. testify at sequently, his failure to those scope, beyond proper their hearings States, In Simmons v. United the facts of the testify regarding failure to 393-4, 967, 976, 377, U.S. 88 S.Ct. necessarily constituted an generally, case 1247, the Supreme L.Ed.2d Court wrote: reliance on his constitution- assertion testify “A is ‘compelled’ defendant to self-incrimination. privilege against al in a in support suppress only of motion to Ohiо, 610, 619, In 426 U.S. Doyle testify- the sense that if he refrains from 91, 2240, 2245, n.10, n. 49 L.Ed.2d 96 S.Ct. ing benefit, forego will have to a 10, the Court said: testimony always involuntary is not as a matter of law given because it is simply person “After arrested is formally an However, to obtain a the as- benefit. law that he advised an officer of the sumption reasoning silent, which underlies this the unfair- right a to remain has is defendant has choice: when the prosecution, ness occurs may give to testify up jury, refuse presence of the is allowed under- assumption applied benefit. When basis of what impeachment this is take right.” in a situation which the ‘benefit’ to be of that may be the exercise gained provi- is that afforded another impeachment impermissible to allow If it is Rights, sion of the Bill of an undeniable an post-arrest silence that be on a Thus, tension is created. in this case silent, to right to remain exercise of one’s up obliged give either Garrett clearly is an impeachment for what allow counsel, believed, what he with advice of privilege exercise the constitutional to be a valid Fourth Amendment claim self-incrimination, in against done or, effect, legal to waive his Fifth no less erroneous. Al can be against privilege Amendment self-in- impeachment is though this form of not a circumstances, we crimination. In these trial, testify at comment on the failure to find it intolerable that one constitutional clearly is a comment exer accused’s right should have be surrendered against privilege of his constitutional cise order to assert another.” See, v. Califor Griffin self-incrimination. Although addressing nia, L.Ed.2d the Court there was 380 U.S. XIV, 106; hearing such V and United given the use of evidence Amendments Constitution; issue Article Section a defendant at his trial on the States guilt, impermissible Constitution. avoidance of Texas addition the state and federal Fourteenth Amendments to the United Constitution, grounds above, for reversal States and under Article discussed there Section Constitution. Texas ground prohibited another state comment on testify failure Accordingly, appellant’s motion hearings exculpatory judgment is re- rehearing granted, matters which he testified at trial. Arti versed, and the cause is remanded. 38.08, V.A.C.C.P., provides: cle “Any defendant a criminal action CLINTON, J., participating. permitted be testify

shall his own therein, ONION, Judge, concurring on Presiding behalf but failure of rehearing. appellant’s motion for defendant to so shall not taken him, against as a circumstance nor shall question presented by appeal The same the be alluded to or commented on may whether a criminal a defendant in case by counsel in the cause.” impeached be as a at the on witness trial the his as a аt merits silence witness (Art. predecessor The to this article pre-trial his of ali- hearings about defense C.C.P.1925) applicable pre has been held to he to the testify bi1 when was called hearings. Scroggins trial 97 Tex.Cr.R. hearings limited in accord- purpose of those 303. purpose S.W. rulings. ance the trial court’s provide express is to protection statute to pre-trial the hear- Appellant testified at they defendants when invoke their constitu ing competency his to stand to determine rights against tional self-incrimination. As hearings on again trial. testified He previously opinion, appellant’s stated in this suppress motions evidence of search to a exculpatory story silence his was and to a fu- suppress possible seizure grounded on his of exercise those constitu ture in-court identification which he rights. Accordingly, tional we hold that expressly claimed was tainted. He was 38.08, Article also to a supra, applies de purpose called as a witness for the limited pre fendant’s silence on some matters at a hearing rulings of each of under the correct hearing trial when he testify even does at the judge. expected trial He was not to hearing about other matters. speak any out about defense of alibi or impeachment ap- We hold the of state’s totally other which defensive matter was pellant on the of his to testify basis failure any irrelevant to issue before the court on exculpatory story pretrial to his at the hear- pre-trial the hearings. Such defensive ings improper was for all of the reasons set scope clearly matters the of were outside opinion dissenting out in Part I of the on pre-trial hearings. the original Specifically, submission. we hold merits, At appellant the trial on the the impeachment improper the was under testified, things, in among other connection state law because it was in violation of Art. with he loaned his defense of alibi that had 38.08, supra, it and also because was not pair his Buick a of pants automobile and authorized the rule evidence allowing of night a Eugene Tealer the a witness’s under silence circumstances in July and that 1 a. m. on Tealer around he expected speak which would be out. 1975 returned the same and that Tealer had We also hold the use of that circum- state’s saying of placed pants pail in a water was an improper stance use of up pants. Appellant he had thrown privilege silence and his exercise of his claimed was not the scene he against self-incrimination under the Fifth crime. why prosecutor asking opinions simply “exculpa is clear was

1. The other refer tory by appellant produced hadn’t hear matters” testified to but the his defense at the earlier defense, parcel part ings. was same of his alibi holding better understood when it and the is far Pro former Code Criminal Under our prosecutor, On cross-examination defendant cedure, said that represented pre- who “[w]hen had State subject hearings appellant knew that as witness trial the stand takes He purpose had called for the limited other witness. any been rules as the same elicited, vigorous objec- discredit hearings, contradicted, over impeached, tions, appellant he had testified sustained, up, from made ed, attacked, bolstered judge the same himself, court under oath before cross-ex against give evidence had his “tale”-his defense never revealed matter, treated new as to amined alibi. The defense counsel did what testify any other witness every respect as error, calling the trial prevent could to defendant, except where ing in behalf pre-trial to its earlier rul- court’s attention to be matters certain some statute forbids ings limiting pre-trial scope of such him, proof of his con such used correct, out hearings, pointing which were present on former viction occur if the court that error would trial or on a former his failure to impeach court the State to permitted Ann. 1 Branch’s hearing, and the like.” before the with his silence as P.C., ed., and cases there p. 2nd § hearings pre-trial alibi defense at the See also Shel supplied.) (Emphasis cited. of alibi when the defense relevant (Tex.Cr.App. 397 S.W.2d ton issue before the at the pre-tri- court Evidence, McCormick 1965); Law of Texas Nevertheless, hearings. al the trial court 381; ed., 443, p. 62 Tex. Ray, 2nd § such permitted impeachment. 130; Witnesses, 205, Jur.2d, p. 98 C.J.S. § is the which the record 121; This condition 370, 369, p. 123. p. § Witnesses § of trial below reached this court. Given took the Thus, voluntarily when an accused brutal, crime, of it is facts this heinous any to subjected he himself witness stand prosecutor why difficult understand within legitimate cross-examination engage questionable chose in such highly evidence, inquiries of relevant rules ap- on impeaching conduct and insisted against him. charge pellant, judge, despite the trial his why for consistently many And it held was pre-trial rulings, permitted impeach- such may take the that an accused not years ment, endangering appeal. the conviction on purpose. for a Perez witness limited stand jury It be that may argued was not 586, State, 256 170 Tex.Cr.R. 343 S.W.2d alibi, likely to believe defense of State, 163 Tex.Cr.R. (1961); Robinson v. but was entitled have that defense ‍​‌‌​‌​​‌​‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‍State, 499, (1956); Tyler 781 293 S.W.2d presented to the without inferenсe 441, (1956); 775 163 Tex.Cr.R. 293 S.W.2d hear- he had testified earlier court 55, State, 143 140 Tex.Cr.R. Holder v. oath, ings an obligation speak under had State, (1940); 160 Gonzales v. 613 S.W.2d out, yet an so opportunity had to do 548, (1954); Ru 524 Tex.Cr.R. S.W.2d impli- to relate his alibi defense. The failed 71, State, 166 Tex.Cr.R. 311 S.W.2d bens v. testimony being his cation was that was Witnesses, Tex.Jur.2d, 210, (1958); § for under be- advanced the first time oath 140. p. jury although opportu- fore the he had the Rubens, it particu- In Gonzales nity previous appearances. to do so in court may an accused larly established that Recent fabrication was the theme of the stand for the sin- permitted to take the be prosecutor’s interrogation. majority purpose testifying of gle and limited rehearing reverses appellant’s motion extrajudicial confession was not volun- his conviction. concur. tary one. ruling

It this court’s when these must be remembered that It will if the rehearing be better understood pre- no we had little or were decided developed law it has cases background A in this state. mo- hearing evidence recent is mentioned. years over the tion suppress Supreme Court of the United recog- evidence was not States ruled were, course, nized. There examining testimony of a defendant in support of hearings trials and corpus habeas to reduce a motion to evidence on Fourth suppress bail, etc. may not grounds Amendment thereafter be against admitted at trial on the him issue of Under the Denno, influence Jackson v. guilt. Supreme The basis of the Court’s 368, 1774, 378 U.S. 84 S.Ct. 12 L.Ed.2d 908 ruling was that otherwise defendant (1964),2 Lopez State, this court put asserting would be choice of his (Tex.Cr.App.1964), S.W.2d 345 overruling Fourth claim or exercising Amendment his silentio, Gonzales and sub Rubens held that an Fifth testify privilege accused Amendment self-in- might pur- for a limited pose in a hearing conducted in the absence crimination.

of the jury to determine the voluntariness Thus, right where the has a defendant of the confession. There the court said: evidentiary hearing an on a motion sup- “Should the defendant at such a press evidence, may take the stand and hearing, the cross-examination of the de- privilege against limit his waiver fendant shall be limited solely to the facts that hearing. self-incrimination See surrounding the voluntariness of the con- States, Bailey v. United 128 U.S.App.D.C. fession, and the shall defendant not be 389 F.2d 305 Cf. Brumfield v. subject to cross-examination except for State, 445 732 (Tex.Cr.App.1969). S.W.2d purpose involving limited facts In Martinez v. 437 S.W.2d 842 confession, voluntary nature of nor (Tex.Cr.App.1969), following the

shall dictates of compelled the defendant be to take upon Wade, the stand trial of upon the cause United States v. U.S. its merits his testimony because of (1967), 18 L.Ed.2d and Gil hearing.” California, bert v. 388 U.S. 87 S.Ct. (1967), 18 L.Ed.2d 1178 it was held (Tex. Masters v. 545 S.W.2d 180 that once in-court identification the ac Cr.App.1977), it held that court sought cused is to be introduced and the reversibly refusing erred in to allow the apprised court is identification ques defendant to take the stand for the limited prior tioned on a purpose police on the basis of station testifying the voluntariness identification, of his separate confession in or hearing lineup upon a then motion jury. 38.22, absence of the See Article should hearing defense a be held outside V.A.C.C.P. presence jury, of the and should the such identification court determine that at With the advent of 1965 Code of police was violative station or elsewhere Procedure, 28.01, Criminal Article V.A.C. Supreme of the Court man United States C.P., provided pre-trial hearing proce- for process, prosecu dates or of due then the dures including suppress a motion to evi- State, precluded offering any tion is evi dence. from Bosley See v. 414 S.W.2d 468 (Tex.Cr.App.1967). jury. dence of such identification before the

It became common for the voluntariness hearings to deter- again, Here as with of a confession challenged by pre- to be a confession, mine the of a a voluntariness trial motion rather suppress than to de- hearing pre-trial suppress on a motion to lay by holding a trial in a progress hearing accepted procedure evidence became in the absence of the the voluntari- determine whether in-court identifica- ness the confession admissibility as tainted, tion was the defendant is often Denno, supra. mandated v. Jackson purpose called as a witness for limited States, hearing understanding Simmons v. 390 United U.S. 377, 967,19 (1968), hearing not testimony 88 L.Ed.2d 1247 at such could be Denno, supra. 2. See footnote 16 in Jackson v.

853 fabrication, a de- merits, being of recent story, as against him the trial on the used at on the for the first time brought out fense hearing so at testifying and that said examination, defendant’s second trial and privi- waive his Fifth Amendment did not testify did not defendant to show that the trial lege against self—incrimination at the State, v. 40 S.W. former Dorrs at the trial. on the merits. (Tex.Cr.App.1897).3 311 Much, be much more could written improper held for also It has been hearing practice and a defend- pre-trial whether attorney ask the accused district taking purpose, ant the stand for a limited corpus, hearing on habeas at he testified a as guide the above should serve a but not at testify or right had the since he understanding practice. and his proper, saw hearing, such 38.08, V.A.C.C.P.,provides: Article not a so circumstance failure to do State, Tex.Cr.R. v. 73 Swilley him. against action “Any defendant criminal v. (1914); Scroggins 619, 733 166 S.W. permitted testify be in his own shall 573, (1924). State, 263S.W. 303 97 Tex.Cr.R. therein, bеhalf but the failure of that reference Further, it has held been taken testify defendant so shall not be exam- testify in an failure the accused’s him, nor shall against as a circumstance on the trial ining trial erroneous same be alluded to commented State, 162, Hays 101 Tex.Cr.R. merits. by counsel the case.” State, Scroggins v. (1925); 274 579 S.W. The forerunners also of the statute have supra, and there cited. cases provided the same. is clear from the more cases It recent long It has held that been the inhibition stand on that if a defendant takes the of the statute was not limited or restricted of a suppress evidence pre-trial motion to pending trial but failure includes the seizure, as the did such search testify of the defendant to at a trial. former case, testimony in the instant State, Richardson v. 33 27 Tex.Cr.R. against be hearing cannot used pre-trial (1894); State, S.W. 139 Wilson v. 54 Tex. a witness him even if he takes the stand as 505, 113 (1908); Cr.R. 529 Hare v. S.W. merits. trial on the Simmons at the State, (1909); Tex.Cr.R. S.W. 544 States, Further, if he does supra. United State, Brown v. Tex.Cr.R. S.W. pre-trial trial or a a former State, (1909); White v. 83 Tex.Cr.R. hearing, his silence cannot used (1918); Lee S.W. 737 Article at the on the merits. him Tex.Cr.R. 303 S.W.2d 38.08, supra. permit appellant It was held error to the for testified In the instant the hearings including a rao- purpose discrediting pre-trial the the defendant’s at three opinion acknowledged dissenting opinion rehearing The Sanders 3. The cites State, 156, v. of briefs citation of Sanders 52 Tex.Cr.R. 105 S.W. was without benefit authorities, or (1907). believing three the Sanders held where direct prosecutions grew (overlooking adjudicated v. out of sales the same Dorrs from not been had liquor supra), supra, trial two case of and on the of the first Richardson v. dispute accused not take the proceeded authority. cases did stand to citation its conclusion without the witness Rountree who testified accused has never any Sanders stands alone. It sales, by approval made the but on the third trial after other cited with this or been sharp Rountree’s death accused testified in his own is in conflict with the court in Texas and require behalf it was accused to interpreting not error the Arti- and after it cases both before 38.08, whether had the answer other trials that accused sold the Rountree testified on supra, While it it and its forerunners. cle may liquor, overruled, expressly never have been deny (the accused) he had not Why whether the statement since it was failed dis- silentio. been overruled sub has proper method easy holding upon relies such is not sent impeaching testimony, accused’s the stat- understand. inhibiting ute testify reference to accused’s failure he refers the trial a case in which testify. not does suppress tion to evidеnce rights. of a search and Fourth and Fifth Amendment The seizure. try The State did to use question presented whether, not in this case is testimony against him at the appellant after testified to his exculpatory merits, did, objection, but over use his story, prosecutor was entitled to silence or his failure to about his impeach appellant on cross-examination pre-trial hearings defense of alibi at the inquiring into failure to relate when that subject totally irrelevant story at the exculpatory pretrial hear- any issue before the court at the time and stated, ings. does an- Simply Simmons was outside scope hearings. question. swer this 38.08, action Such was a violation of Article Ohio, Doyle supra, the Supreme supra, and process of due and due course of Court United States held that the use (Article I, 19, the law of the land Texas § impeachment purposes Doyle’s for silence Constitution) and the rule of fundamental at the time of his arrest and after he had error, fairness. totally unnecessary For the rights been advised of his constitutional I concur in the result reached. This court Arizona, pursuant to Miranda v. 384 U.S. circumstances, has no choice. Under the (1966), 86 S.Ct. 16 L.Ed.2d 694 the case must be reversed. violated the Due Process Clause of the present

Fourteenth Amendment. In the DALLY, Judge, dissenting on appellant’s case we admis- are not concerned with the motion for rehearing. sion of evidence that remained Again, silent at the time of his arrest. I stoutly maintain that the majority opin whether, question is after appellant testi- ion on original submission correctly decides exculpatory story jury, fied to an before the the issue on which the court now reverses permissible it was purpose this conviction. The majority opinion on impeachment him as to to cross-examine rehearing light sheds no problem why story he did not relate same when grossly Ohio, misapplies both Doyle v. voluntarily testified at three 610, 96 (1976), U.S. S.Ct. 49 L.Ed.2d 91 hearings. States, and Simmons v. United 390 U.S. L.Ed.2d 1247 Both Ohio, In Doyle supra, majority of these cases improperly have been relied Supreme expressly excluded from Court upon by majority on the motion for holding its consideration and circum- rehearing. stances of the instant case. Footnote six of majority opinion reads as follows: majority’s quotation from Simmons States, “Petitioners also claim constitutional supra, United is one sentence too each of them was cross-ex- immediately following short. The sentence error because prosecutor why amined as to passage quoted by majority is: exculpatory story had not told the at the “We therefore hold that when a defend- hearing time preliminary оther support ant testifies in of a motion to prior to the trials.... These averments suppress evidence on Fourth Amendment of error considerations present different grounds, testimony may not thereaft- implicated by from those cross-exam- er be admitted him at trial on the ining petitioners as defendants as to their guilt objec- issue of unless makes no receiving warnings silence after Miranda 394, tion.” 390 at 88 at 976. U.S. S.Ct. at the time of arrest. In view of our Nothing by appellant pretrial said at the disposition we find it unnec- case hearings against was admitted him at trial. essary to reach these additional issues.” He was privilege, by accorded the secured n.6, 426 at 606 96 at 2244 n.6. U.S. S.Ct. States, supra, testify Simmons v. United to suppression hearings Although dissenting opinion at the free from the in his Stevens, Ohio, Doyle supra, “tension” v. Mr. Justice between the assertion of

855 court, 156, (1907). In that joined 803 by two other members Cr.R. S.W. question presented we summarized the of testi found troublesome the admission follows: as failed to assert his mony Doyle hearing, preliminary

“frame” defense at his in his own behalf. “Appellant testified asked, unequivocally he stated this evidence and he was On cross-examination affirmative, authority was admissible under the of Raf to required answer States, 494, fact that ‘Is it not a following question: fel v. United U.S. S.Ct. dead, Rountree, John now 566, (1926): one 70 L.Ed. 1054 of cases of two former trials occasion “[Ujnless and until this Court overrules from the growing out of the sale beer a Raffel v. United ... I think States time, box same testified same and at regard court is to state free the defend- he, Rountree, John did not receive ant’s decision take the as a waiv- stand for beer in money from Howard Joe objection er of his to the use failure of his Rountree, he, did not and John question, testify proceeding an earlier or his Howard, said to the said Joe deliver beer failure to offer his version of the events defendant, it to you, delivered but that prior to trial.” 426 U.S. him; you, a further fact that and it not at 2251-52. defendant, as a take the stand did not States, Raffel v. was a supra, United deny and the said statements witness ” prosecution conspiracy for to violate the John Rountree?’ trial, National Prohibition Act. At the first questioning This Court held that Sanders an agent testified that Raffel had admitted earlier, testify in the about his failure to ownership drinking place; of a did Raffel legitimate way cases related hung testify. not The first trial ended in a testimony. opinion impeaching That upon agent as jury, retrial the testified did questioning such went on state that testify Raffel before. elected and denied fail- not constitute a reference Sanders’ making by statement testified to testify he had taken the ure because agent. He was on his then cross-examined stand and testified. failure to the first The testify at trial. Sanders,1 not Doyle Raffel Sim- United Supreme States Court held mons, controlling. fol- clearly are I would permissible such be- cross-examination run controlling decisions low the Raffel waived privilege cause had Court of the United Supreme ahead of by electing self-incrimination judgment. to reverse this States testify. majority, apparently apprehensive The majority original submis- opinion The basing its decision on feder- and insecure States, upon sion relies Raffel v. United its deci- attempts also to bottom grounds, al by been supra. That case has not overruled so doing, sion on state law. the Court Court, Supreme though even it had holding: dangerous a new and introduces Ohio, clear to do so in v. opportunity Doyle applies to a defend- “that Article 38.08 ... supra. silence on matters at a ant’s some does at that hearing even when he States, supra, In Raffel United matters.” hearing other cited Supreme Court of the United States 38.08, V.A.C.C.P., its a case no more being holding accord with offers Art. major- Court, by Tex. reached support from this result Sanders concurring opinion was cited been overruled this Court and it In footnote 3 1. Supreme approval Rehearing, Appellant’s and followed Motion for Sanders (1907), v. United 105 S.W. of the United States Raffel 52 Tex.Cr.R. Court States, “Why 46 S.Ct. 70 L.Ed. is made: U.S. discussed the statement Supreme holding easy over- Court has never such is not the dissent relies on Raffel; reiterate, explain be fol- and Raffel should and to ruled Sanders understand.” To State, today supra, never in this v. has before lowed case. Sanders 856 than do I dissent

ity Doyle majority opinion and Simmons. Art. 38.08 rehearing motion prohibits and would references the defendant’s fail- judgment. affirm this testify. Appellant ure to did fail to testify; he testified both at

hearings at the trial. Sanders v. DAVIS, JJ., join and W. C. DOUGLAS State, supra, which the majority appar- opinion. this ently overruling in order to reverse this conviction, this Court stated: 38.08,

“The statute Art. [now V.A.C.C.P.] inhibiting a reference to the failure of

defendants to refers to a case trial in which he had not testified. That ground objection here, apply could not

because took the stand and tes- tified.” testifies, When the accused he assumes the character of a witness and be contra

dicted, discredited, and impeached like

other Fitzpatrick States, witness. v. United JONES, Johnny Appellant, 304, 944, 178 U.S. 20 44 S.Ct. L.Ed. 1078 v. (1900); States, Brown v. United 356 U.S. 148, 622, Texas, (1958); Appellee. S.Ct. 2 L.Ed.2d 589 The STATE of Valerio (Tex.Cr. 494 S.W.2d 892 No. 59542. App.1973); Burton v. 67 Tex.Cr.R.

149, 148 S.W. 805 Texas, Appeals Court Criminal Panel 2.

Even if majority concludes that impeach appellant by was error to his si- 28, May 1980. pretrial hearings, lence at the it should also 12, Rehearing Nov. 1980. On conclude that such error was harmless be- yond a Two reasonable doubt. of the San police

Antonio officers who investigated case testified before the that ap- pellant told his exculpatory story to the Thus,

police following his arrest. the jury was aware that appellant’s testimony was fabrication,

not a recent but was consistent with the statements he had made to the

police from the time of his arrest. The

impeaching effect of appellant’s silence at pretrial hearings must be considered considered, ‍​‌‌​‌​​‌​‌​‌‌​‌‌​​​‌​‌​‌‌​‌​‌​‌‌​‌‌‌​‌‌‌​‌​‌‌‌​​‍this context. per- So the error ceived by majority clearly harmless. California, 18,

Chapman v. U.S. S.Ct. (1967); Harrington 17 L.Ed.2d 705 California, U.S. 89 S.Ct. (1969); Florida, L.Ed.2d 284 Schneble U.S. 31 L.Ed.2d 340 (1972); States, Chapman v. United 547 F.2d (5th 1977). Cir. Your notes Court fact, it would when “A assert a failure to proceeding. your It was rul- from that it, assert amounts been natural have ing prevented testifying. him from of the non-exist- an assertion effect to as a This is conceded right. “THE COURT: All ence of the fact. (Section of evidence general principle Honor, also, “MR TINKER: Your we infra). request a mistrial at this time because and I already of what has occurred

Notes

[******] reurge the to look at the Court State- classes of several common “There are and see the Court’s rul- ment of Facts cases: time, permit which not ing at that did “(1) legal proceedings Omissions him to to these facts. naturally have been assert what would Objection “THE COURT: overruled. under the circumstances. asserted Motion for mistrial overruled. Go anything, or to “(2) to assert Omissions ahead, Counsel. positiveness, or speak with such detail “QUESTIONS BY MR. CONAWAY: narrating, on the stand formerly when “Q then, my question, again, Now I elsewhere, with.” matter now dealt it, you don’t think ever did answer Evidence, (Chadb- Wigmore, 3A See. you was did ever had the tell-you Rev.1970) ourn opportunity sitting on witness Notwithstanding expressed statements Courtroom, stand in a different acknowledg- majority’s Wigmore and the Judge, lawyer,- same same defense silence must principle ment of the that the well, them, at least Wil- two of Mr. an ex- occur under circumstances wherein there, liams and Mr. Priest were or statement would seem pressed disclaimer there, Judge was there Barlow natural, disregard they proceed more you certainly were there and we appellant allegedly in which the context talking happened were about what story. It exculpatory failed to relate your out there at house on the morn- given have was not natural ing when were arrested. Do hear- story pretrial at the exculpatory you remember that? issue at ing since it was not relevant Yes, sir; I “A do. Further, testifying when he hand. then, “Q telling Now do remember was not hearings, he motion about, anything my me T loaned narrating on the matter now dealt pants Eugene Did Tealer?’ stated, because, the issues raised tell me like that? anything bring to bear the facts of motions did I only questions “A answered the particular preceding offense or facts

Case Details

Case Name: Franklin v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 24, 1979

Citation: 606 S.W.2d 818

Docket Number: 57348

Court Abbreviation: Tex. Crim. App.