Grayson v. State

рrosecutor argued, as contrary, “I ask also there is no deference whatso- testimony to recall the of this man—not the interpretation ever to his of her conduct. testimony but the words that came out of given Nor is deference to the reason- this man’s own—.”1 His immediate reac- Rather, ing appeals. of the court of object tion was to “to the comment the majority denigrates By glossing it. over of failure the ... defendant to take the interpretation the obvious of her entire judge stand.” The trial also heard аnd conduct made the trial presumably prosecutor; observed the he by focusing only on “use of the word ‘testi- promptly objection. sustained the More- ” “context,” mony’ majori- in restated over, good measure, for he instructed the ty manages judgement substitute its jury “disregard prosecutor’s state- court appeals. ment and her argument about the testi- Today, majority demonstrates once mony of this man ...” again a determination to recast this Court Reading transcription of notes of the deciding grounds its former role of reporter considering court the same error appeal. Adhering my on direct argument, judges statement three understanding of reviewing its new role as appeals the court of concluded: court, respectfully I dissent. prosecutor’s pointing action in “[T]he strong the accused is a factor deter-

mining whether jury naturally would argument

take the as a comment on the

failure of testify. defendant to [Citation This action prosecutor

omitted]. request

with her for the to consider

appellant’s testimony when there was

none, think, we was error ...” GRAYSON, Appellant, Leonard Charles (Tex.Cr.App., Harris v. State No. 09-83- 14, 1983.) delivered December Court, Now members disregard- of this Texas, Appellee. The STATE of ing impressions clearly felt and acted on 229-84, Nos. 922-84. lawyer a trial an experienced judge, well reasoning as as careful three Texas, of Criminal appellate judges, say that “from the stand- En Banc. point prosecutor’s reference was made expressly to the defendant’s Dec. words as the officer had related testimony.” aside, them in his Naivete

they simply accept that which all others

implicated in evaluating the matter have rejected excepting prosecu- of course the —

tion. there

Today, suggestion is no that “with

only us,” a ‘cold’record before this Court

gives “due deference” the determination рresent “who hear

the tone voice and observe the demean- prosecutor

or” of the as she moved and

spoke. Compare Hernandez v. (“inter- (Tex.Cr.App.1981)

S.W.2d

pretation dire”). Indeed, voir emphasis supplied by opinion All the writer unless indicated. otherwise Dallas,

Kerry Fitzgerald, Glaspy, P. Bill Mesquite, appellant. for Wade, Henry Atty. Jeffrey Dist. B. Macaluso, Keck, Paul Jerry Banks and Huttash, Dallas, Attys., Asst. Robert Dist. Austin, Atty., State’s for the State. APPELLANT’S PETITION OPINION ON FOR REVIEW DISCRETIONARY DAVIS, Judge. THOMAS G. Appellant charged by indict- two attempted capital ments with the offense of indictment was enhanced murder. Each cases prior felony The two convictions. joined jury. for trial guilty of of- appellant found both fenses, allegations found the enhancement true, im- punishment at life assessed Fifth for each offense. prisonment (Dallas) both affirmed opinion. unpublished in an convictions 05-82-00855 Grayson v. Nos. granted appel- 00856-CR, 12-27-83. We discretionary petition review lant’s Appeals’ holding examine the Court of “THE COURT: You want to invoke the words, Fifth Amendment. properly the trial court refused to allow testify; not want to correct? do appellant a defense witness wit- because the “THE No. WITNESS: ness Fifth waived her right. All certainly “THE COURT: You privilege against self-incrimination. Constitutions, right, under the so.” to do a drug

This case rose out оf raid on a in residence Dallas. from the resi- kept Gunfire The court Joiner on the stand so taking appellant’s dence police wounded two officers ‍‌‌​​‌​‌​​‌‌‌​​​‌​‌‌​​​​‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​​‌‌‍that counsel could make a bill exceptions. part people questioning in raid. went as Several were in time, appellant’s at the follows: residence de- occupant

fense was that some had other “BY MR. GLASPY [defense counsel]: shot the officers. name, “Q. your please, State ma’am. “A. Janet—

Appellant took guilt-in- the stand at the “MR. phase [prosecutor]: Judge, nocence BANKS length. testified His bill, purposes you even for are sought counsel then call as a to Joiner, going to her to if she testify, allow present Janice who had been desires to invoke— house time shooting. at the No, “THE no. not— COURT: She’s jury The trial retired name, beyond she can state her but Joiner, who under indictment and in that, imagine going I that Mr. is Read custody Department, Sheriff’s to instruct her not to answer. brought permitted in. The Join- Oh, “MR. okay. BANKS: attorney, er to consult who in was also “THE Go COURT: ahead and state courtroom, about “whether or not she your name. willing testify or desires to in this case.” “A. Janet Marie Joiner. recess, After brief and with the “Q. Janet Joiner? Marie courtroom, still out of the Joiner was Uh-huh. “A. sworn took following the stand. The “Q. you Where live you were exchange place: took jail? in placed Now, “THE COURT: let—the defense “A. 1903 Life. requested has in you call as a witness Dallas, “Q. Is that in Texas? the State Mr. of Texas versus “A. Yes. Grayson. “Q. my understanding you It’s Read, “Let the record reflect Mr. John Dennison; were arrested at 1959 representing you, present cоunsel that correct? spoken you

has for several minutes I quite ‘regis- “A. don’t understand properly now. I’m sure he has advised tered.’ you your rights of all of constitutional arrested, not, you “Q. You were regarding your right testify or to re- December the 14th? testify. fuse to Oh, yes. “A. I from “And understand conversations “Q. 1959 recommending with Mr. Read that he is Dennison? go you testify. ahead and I under- “A. Yes. your Monday. case for trial

stand is set “Q. When front came door, you, bring let me ask if I you “But what room were in? in and are in this you asked I—“A. your testify is it desire to not to Joiner, going “MR. Ms. I’m READ: testify? don’t you you tо advise at this time

“THE you WITNESS: I’d rather take if want to. answer don’t Fifth Amendment. can invoke Fifth Amendment. You Well, Glaspy proceeds “THE I will an- out and WITNESS: Mr. that. you swer ask about what room, fixing have occurred in the house living “A. I was in the out living day, you I there that door. was whether or desire jury? room. to answer them for the pass “MR. GLASPY: I’ll the wit- “THE WITNESS: No.

ness. right. “THE COURT: All I take it “MR. BANKS: I have no further your you repre- are no that questions of At this this witness. senting me you did not under- time.” ago, stand this a few moments and that recess, persist exercising Following you another the court still want brief again: your rights addressed Jоiner under the Fifth Amendment case; testify in is that cor- recess, not to During “THE COURT: rect? your have had time to attor- counsel further, I ney and take it he has advised “THE WITNESS: Yes. you if you bring that we in and “THE don’t you COURT: And want to questions elect to answer or more one form; any manner, testify shape or there, dealing with the facts out other right? that biographical questions like what than right. “THE WITNESS: That’s live, your you name is and at that where Glaspy, right. “THE COURT: All Mr. I you giving up any right time are you go allow ahead and ask some will you might have self-incrimination that questions more at this time while the Constitution, have under the and would present, by is not and I will abide you to all the to instruct answer answers, the witness’s whether not you here in this tions that asked are desires to her Fifth Amend- she exercise hearing. to testify ment not or whether she basically you that have been “Is what go willing to and answer the ahead discussing with him? questions. Yes, “THE WITNESS: sir. “In desire to exer- the event she does right. “THE COURT: All At the time Fifth cise her answered, you

you chose to answer testify, ruling I—it will ago regarding a moment what that that she did Court mere fact in, you you room of the house were were single question a few mo- you of the fact that if chose aware ago knowing represent ments did not you the questions, some of would rights voluntary of her waiver required by law to an- ordered self-incrimination, I and will hon- all of them? swer request testify. or her not to “THE WITNESS: No. you may objection and your “And right. All You are now “THE COURT: exception ruling to that ...” that fact? aware of “THE WITNESS: Yes. asked Joiner Appellant’s counsel then surrounding questions aware about events you “THE that are five COURT: Now fact, by invoking bring shooting.1 replied let if Joiner you me ask we that Joiner, were, "Q. questions asked: Ms. after ‍‌‌​​‌​‌​​‌‌‌​​​‌​‌‌​​​​‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​​‌‌‍all of the witnesses—after in the order every- shooting had occurred all of Joiner, through "Q. Ms. when the came arrest, you body placed did hear under house, you door of were the front that say [appellant] Wayne did the Morrison police officers?" knocked down one of the shooting?” Joiner, you "Q. were in the room where Ms. Joiner, "Q. witnesses were Ms. after all of the shooting occurred? the witnesses—where arrest, you you did under down, arrested “Q. went After all of the transactions Pyburn [appellant] say did that Rufus Joiner, heаr anybody say that hear Ms. shooting?" shooting?” Wayne Morris did the Harris, the Fifth Appel- Amendment each time. test of Klein v. the court found no lant’s judge: counsel stated to the trial waiver. Honor, “MR. GLASPY: Your last The need to avoid distortion of the evi-

two or three are that we asked Rogers dence one concern of v. United totally, every- after the offense occurred States, U.S. S.Ct. 95 L.Ed. arrested, body’s been and we would like petitioner In Rogers, testified questions. have those answers to those subpoena grand under federal “THE I she appreciate post COURT: can had held the of Treasur- fact, Glaspy, Party Mr. but the er of the Communist Denver until that, January, Court must be—and so that the record is virtue of her clear, office, possession this witness is she had under indictment been mem- bership Party. violation Controlled Substances lists and dues records of Act, arising out of having any longer, the same house on the She denied the records date, same same transactions that have and testified that them turned over been testified to in to identify witnesses another. When asked to person сase. she gave Party’s whom books, she refused. currently pending

“That indictment is in the 292nd Judicial District Supreme petitioner’s Court affirmed County, Dallas the Honorable Michael contempt. commitment for The Court not- presiding. Keasler ed that her claim the privilege against case, being

“And that the it the will be only self-incrimination “came after she had Court’s require that I will not the voluntarily testified her status as an open up witness to herself to cross-exam- of officer the Party Communist of Denver. ination toas other facts events on To uphold privilegе claim of in this case question day the in which could conceiva- open way would the to distortion of facts bly be incriminating to her defense by permitting a any stop- witness to select against that indictment.” ping place testimony.” Court, too, long This has recognized the

The Fifth privilege hazard: binding upon self-incrimination is states, clearly the is permit and “the “It inadmissible same standards must give partial witness to determine whether an in account of his accused’s silence knowledge transaction, either a or of proceeding suppress- federal state the justi is circumstances, Malloy ing fied.” 1, v. 378 84 the whether Hogan, U.S. 1489, (1964). S.Ct. 12 the evidence is to be used in L.Ed.2d 653 favor of or against the state.” Appeals applied The the Park, 37 Tex.Cr.R. 40 S.W. Harris, standard of Klein v. 667 F.2d (1897) (quoting approval with State v. (2nd Cir.1981), that waiver of the K., (1829)). 4 N.H. 562 privilege should be inferred from a witness’ case, jury the instant the was the In prior “(1) only statements the if: witness’ gave finder fact. The witness Joiner prior significant statements have created a testimony jury, out of the the likelihood that the finder fact left will be purpose appellant’s bill of prone rely with and aon distorted view exceptions. The could not have been truth, (2) reason partial misled Joiner’s disclosure be to know that his be statements would not hear cause the it. The Court interpreted aas waiver of the fifth amend correctly of Appeals found no waiver of the privilege ment’s self-incrimination.” privilege under the “distortion” criterion of The court reasoned that because the Klein, Rogers, and Park. testimony, heard none of Joiner’s the finder prone rely According of fact not left authority, with nor to one under- standing “merely a distorted view of the truth. Under the decision as an Rogers general requirement tive has the witness lost application of the incriminating” pro- privilege. be claim the a demanded answer satisfactory more than the vides a rationale McCormick, supra, ibid. interpretation v. Har- “distortion” of Klein States, v. United Hoffman McCormick, McCormick On Evi- ris. C. (1951), U.S. S.Ct. L.Ed. 1118 dence, (3rd 1984). Sec. 140 at 346 ed. the Court wrote: Rogers follows: court reasoned as privilege, only “To sustain the it need be petitioner furnish was asked to “[W]hen implications evident from person the name of the to whom setting question, in it was which records, Party the court was turned over asked, responsive that a determine, required as it must when- it question explanation why can- an claimed, is ever whether dangerous be- answered danger question presented reasonable injurious result.” cause disclosure could in all the light of further crimination compel cannot a witness to court circumstances, including previous clear, perfectly it from answer unless As to each disсlosures. of all the circum- careful consideration directed, which a claim of in the witness stances an- whether court must determine asserting privilege, mistaken would particular question swer to that possibly tend to cannot danger’ of subject to a ‘real the witness Hoffman, supra, incriminate the witness. further crimination.” Commonwealth, Temple v. quoting from Rogers, U.S. at S.Ct. 75 Va. 892 above, Citing language quoted Moreover, Malloy Hogan, su McCormick comments: approval pra, quoted the Court up- “Rogers’ contempt commitment was Cоffey, from United States following held because the Court found (3rd Cir.1952): 198 F.2d 440-441 not increase her dan- tion at issue would the witness determining whether “[I]n This, prosecution ger of and conviction. answering a really apprehends danger in course, satisfactory ration- provides permit him- question, judge cannot requires Rogers result ale for the he skeptical; rather must be self to be recourse to neither waiver considerations acutely aware that deviousness danger presented nor the of distortion may and incrimination crime its deteсtion provides It any particular facts. further by obscure approached and achieved be applying for a criterion for the basis inquiry.” lines of unlikely and Most Rogers to additional situations. 13, 84 S.Ct. Malloy v. Hogan, 378 U.S. at exclusively appear courts to have relied 1496, n. 9.2 in such and have asked on this rationale case, In instant responding to situations whether said, “I would, concern when he given proper the witness’ voiced the question asked herself require open of in- not the witness to testimony, increase the risk will prior facts as nega- up to other Only if the to cross-examination crimination. State, Hogan S.W.2d 379 Rogers, Hoffman, Malloy incrimination. Ellis v. and v. therein; (Tex.Cr.App.1984), be- Cun inquisitorial that lacked conflict and cases cases cited State, (Tex.Cr.App. ningham Fifth Amendment tween witness’ v. 500 S.W.2d 820 right 1973); State, (Tex. Sixth ‍‌‌​​‌​‌​​‌‌‌​​​‌​‌‌​​​​‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​​‌‌‍Amendment and a defendant’s Hall 475 S.W.2d 778 v. Nevertheless, compulsory process. we Cr.App.1972); Thompson v. 480 S.W.2d prosecution the Westen, criminal that even in a stated (Tex.Cr.App.1972); see also compulsory process Clause, under accused’s Compulsory Mich.L.Rev. Proсess potential not Amendment does override Sixth (1974). 166-170 privilege against self- witness’ Fifth Amendment day question problem type events on the in which of cases decided conceivably incriminating could to her Supreme Court United States which against [pending defense indictment each majority cites and discusses. In [the] against togo seeking The witness was to party protection privi- her].” trial the following Monday charge on grand lege had been haled to a violating the Controlled Substances Act. inquiry; upon declining court of to answer The indictment her rose out aof inquis- incriminating, the deemed drug raid in which two officers were party brought itor caused the to be shot, arrested, suspects a number of appropriate proceedings. the court drugs weapons (the were confiscated Whether it held for or the witness gave same transaction that rise in depended then on what the court found on prosecution). light stant cir these Thus, the issue of “testimonial waiver.” cumstances, “perfectly not it we do find Supreme confront, did not in Court clear” that the answеrs demanded of the States, Rogers United 340 U.S. consequent witness—and the cross-exami (1951) expressly S.Ct. 99 L.Ed.2d 344 nation 3—could possibly tend to incrimi reserved, arising problems pos- “the out of nate her of the indicted offense or of some privilege against abuse of sible self-in- arising other offense from the events id., adversary in proceedings,” crimination the case on trial. U.S., S.Ct., at 373 at 442 n. n. begs Accordingly, majority rationale Finally, the trial court’s was excessively relying opinions of the Su- correct under the standard of Johnson preme Court Supreme written what the Zerbst, 304 U.S. S.Ct. recognizes quite itself Court is a different L.Ed. 1461 The witness was asked context. and answered a about what room by the she in at The decision relied on Dallas a certain time. She later told now Court that when she answered she problem its as begins had not discussion by answering known giving up not to incrimi follows: nate herself. She reaffirmed her de “There is no doubt that waiver of the sire not to incriminate through herself fur privilege against fifth amendment’s self- testimony. ther supports The record may, appropriate incrimination in an аsserting conclusion that after her Fifth be inferred from witness’ the witness did not subject respect to the statements with voluntarily relinquish and intentionally case, inquiry matter the without right known privilege. v. Johnson witness, into whether the when he made Zerbst, supra. statements, actually knew the judgments the Court of privilege and conscious- existence are affirmed. ly to it chose waive omit- [Citation

ted].”1 CLINTON, dissenting. Judge, (CA2 Harris, 667 v. F.2d Klein Thus, 1981). first testi- right of an had Janice Joiner Tension between accused process right a as she before compulsory to and the fied beforе privilege, court, inquiry by to claim the made trial court witness alluded to majority and its related opinion, improper note 2 of the is not a would have been By answering Malloy 3. on direct examination then as- ale Hogan, discussed above. See v. su- pra. serting privilege when asked a related cross-examination, a tion on the witness risks emphasis by 1. All added the writer of this finding of waiver under the “distortion" ration- opinion unless otherwise indicated. subject in leading decision on the actions, Court, “in- according to the Klein Park, Tex. jurisdictiоn is Ex Parte Id., 280,3 this 289.4 defensible.” Am.St.Rep. 835 40 S.W. Cr.R. Beyond though, the Court about Adams, parte Ex 76 Tex.Cr.R. approve infringement as an intolerable (1915); Ray, Texas Law of S.W. compul- right well on the of an accused § (Third Edition) 476, 1 Texas Evidence sory process right of the State as on the Initially Park had Practice n. 89.6 by putative waiver” claim “testimonial others, but jointly been indicted with two Since, witness in similar circumstances. got underway after trial the case courts, insists unlike this Court federal by him dismissed on motion the State. party no to have wit- that a “has The State then callеd Park to the witness assert or invoke his Fifth ness propounded question stand and that Park State, jury,” Ellis ground on the that a declined to answer 0143-83, (Tex.Cr.App., No. 683 S.W.2d 379 tend to incriminate truthful answer would 19, 1984) and cases September delivered against the law of this him of an offense therein, developed nearly cited there has judge held he State. The trial was bound to con- practice for a trial uniform answer, upon his continued refusal outside the duct a voir dire examination contempt and remanded him found Park jury to determine whether presеnce of the custody question. until he answered the does indeed intend to proffered witness ordering discharged custody, Park from privilege. adopt To for a such invoke the since the issue was not hearing the court the notion by dealt “testimonial with waiver” applied where a recalcitrant Second Circuit way explaining objection that “the had earlier testified before is, that the answer to the —that inferred that a waiver was to facts such him— would tend to incriminate waiver” cannot be means that “testimonial threshold,” must mаde at the so that made found—the statements “voluntarily part states a when a witness significant “a never create witness will testimony, right, he waives his be left that the finder fact will likelihood privilege.” stand on his cannot afterwards rely distorted view prone on a truth,” Klein, Park, supra, 40 at 302.7 supra, at 287.5 S.W. say "incriminating" is not to that the writer shares such monial” and statements before 2. That fact, view, attempts point great to in- care must the trier of and thereafter but to make the privilege against treating self-incrimination. sensitive matter of voke be taken in Klein, availability of To thus restrict relevant testimo- dimension. 289. constitutional ny to witnesses who do not know or are careless recalled the witness to the 3. After the defense surely impedes asserting about our stand, judge advised that he had the [him] "the judicial search for the truth. vaunted silent, directed attor- [his] to remain ney his client’s side in order to stand at Notwithstanding praises accorded it earlier question asked [de- him as to each advise Ray, Professor this Court has the Court and was invoked] when it [and counsel... fense] taking its “broad stаte cautioned privilege. to assert witness] allowed [the of the context of that case.” ments. .. out Moreover, not strike earlier testimo- [his] he did (Tex.Cr. 642 S.W.2d Blackmon subject." ny on this App.1982). "Here, wit- did not direct [the Adams, course, days all In of Park and 7. the stand, ness], upon being to an- recalled to the a witness trials were to a and defense]; posed by questions nor [the the swer other, by party one or the called to the stand being held in con- he threaten [him] did testify only to the to hear him decline on tempt he refused to answer thosе once ground testimony sought that would tend to Instead, actively judge encour- tions. Though incriminate him. the Court came questions the aged not to answer witness] [the see, e.g., ploy consistently, McClure criticize that prior put failed to strike [his] to him... [and] 53, 1099, State, Tex.Cr.R. 251 S.W. 1102- 95 testimony.” 68, State, (1925); 51 1103 Rice v. 121 Tex.Cr.R. State, (1932); Rice v. 123 Tex.Cr.R. the rare occasion for S.W.2d 364 occurs to me that 5. It 326, (1933), disdaining such re operation will be when 59 S.W.2d 119 of the Klein formulation attempt as an to withdraw unsophisticated witness makes "testi- medial measures a naive or

699 may refusing It “in action” thаt tend to is axiomatic that an- incriminate the ground a that State, swer on the supra, witness. Blackmon v. at him, answer would tend to incriminate exercising is constitutional witness Accordingly, a of privilege matter is himself,” State, Glasper v. personal to 486 presented by some character of examina- 350, (Tex.Cr.App.1972), S.W.2d ‍‌‌​​‌​‌​​‌‌‌​​​‌​‌‌​​​​‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​​‌‌‍tion to response sought. During which a “only advantage the witness can take inquiry putative should a witness re- testify to decline to on [that] it, spond claiming privilege without Miers, ground,” parte 124 Tex.Cr.R. Ex particular, waived in that and there is noth- 592, 778, Though 64 S.W.2d ing on; for the trial court to rule but fully was advised indicated to

Joiner should the privilege be claimed the trial judge trial that would “rather take it, court must decide whether to sustain Fifth,” any doubt she overrode without and then the is left free to witness express lawyer her advice from own §§ cit, 476, or Ray, op not. 473 and “you answer if don’t have to don’t Texas Practice 464-465. the Fifth to. You can invoke Amend- want ment,” stated, voluntarily when she then “I However, putative once a witness an- proceeded [question],” answer that will incriminating swers with an fact and an obviously do so. Just as sought, answer of a further fact is should part “related of the facts the transac- claimed, privilege then be the issue tion,” State, Draper v. 596 S.W.2d stating becomes whether the first fact (Tex.Cr.App.1980), and was an incrimina- privilege waived the as to the second. ting present admission was that she Draper, supra. Blackmon and both That living “fixing house—in the room to an- issue was reached in the voir dire examina- swer the door”—since is an evi- by tion conducted the trial court in this dentiary possession factor in cаses. Factu- but the trial did not properly ally Joiner privilege “by waived the exercis- Instead, resolve it. announced ing option answering,” Blackmon [her] that “it will be the the Court that State, supra, 501, quoting approvingly at the mere fact that she answer the sin- Wigmore (McNaughton on Evidence Revi- gle question ago a few moments did not § sion) 2276(b)(1). Miers, See represent knowing voluntary waiver supra, 64 S.W.2d at 780. rights of her against self-incrimination...” long So as sanctions up- this Court very Such is not the law under the decision practice judges holds the trial conduct relied majority; state- a voir dire examination determine being ment both “testimonial” and “incrim- putative whether a will claim the inating,” “plainly Joiner reason to [had] privilege, it should make clear to them that interpreted may know... as a [it] inquiry there is more than whether waiver of fifth amendment [her] one would “rather take the Fifth” instead against self-incrimination [and] [s]uch testifying jury. simply before the It is then, unfairly, witness is not if a treated say putative not correct to such wit- ultimately interprets court the statements ness, certainly right, “You have that under Harris, supra, this fashion.” Klein v. Constitution, so.” to do testifying is not at all. It my judgment, majority grievously testifying one or more facts beyond particular giving approval the threshold of “trans- errs its to the notion (CA2 Maloney, F.2d offensive from consideration ed States v. State, 1959). conducting

jury, Apparently Washburn v. 299 S.W.2d voir dire exam appellate judges (Tex.Cr.App.1956), remedy own was ination never occurred to its judgment. judges requested oppos reverse see nor one an But Mathis v. (Tex.Cr.App.1970). ing party times. Thus the 469 S.W.2d In Fed until more recent authority touching appropriatе the instant situa eral courts an instruction to the dearth of prophylactic was seen as a endeavor. tion. Unit may successfully plead igno- that a witness by answering

rance “that law up giving not to incrimi- herself,” privi-

nate and then reclaim the

lege affirmatively she had so and voluntari-

ly expressly in the face contrary waived

advice from her counsel. own

I dissent. Chandler, Jr., pro James se. Lee CHANDLER, Jr. Lee James Huttash, Atty., Austin, Robert State’s No. 69150. for State. Texas,

Court of Criminal En Banc. 6, 1985.

Feb.

OPINION DAVIS, Judge. THOMAS G. application This is post-conviction corpus pursuant filed writ habeas 11.07, Art. V.A.C.C.P. August 9, 1982, applicant

On con- was guilty following plea victed his property offense of over the theft value $10,000.00. and under Punish- $200.00 eight years ment was assеssed Department Texas Corrections accord- plea bargain agreement ance with a which provided run that his confinement “To Parole concurrent with Federal Time.” agreement bargain plea finding out trial court’s in its borne application order on the which ‍‌‌​​‌​‌​​‌‌‌​​​‌​‌‌​​​​‌‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌​​‌​​‌‌‍recites 11.07 “the Court sentenced Petitioner (8) Department Eight years in the Texas in accordance with the Plea Corrections Bargain Agreement which is attached here B, denominated to as B.” Exhibit Exhibit signed Agreement,” by ap Bargain “Plea attorney and the attor plicant, his district ney, Depart Texas reflects “confinement years ... To run ment of Corrections for Parole time.” concurrent Federal

Case Details

Case Name: Grayson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 19, 1984

Citation: 684 S.W.2d 691

Docket Number: 229-84, 922-84

Court Abbreviation: Tex. Crim. App.