Nelson v. State

only in the event he should fail to do requested so. All further relief is denied.

DOGGETT, J., sitting. NELSON, Joseph Appellant,

Thomas Texas, Appellee.

The STATE of

No. 0068-85. Texas, Appeals

Court of Criminal

En Banc.

Jan. Magnussen Alley,

William and Richard Worth, appeal only, appellant. Fort Atty., Curry, Tim Dist. C. Chris Marshall Richards, Attys., L. Asst. Dist. and David Huttash, Worth, and Robert State’s Fort Austin, Atty., for the State. Appeals permit-

“The of Court erred ting appellant’s testimony from a hear- ing jury’s presence the at the outside ON APPELLANT’S PETITION OPINION guilt-innocence phase of the be FOR DISCRETIONARY REVIEW phase introduced at of CLINTON, Judge. appellant’s jury.” trial before the child; indecency offense is with a a by In briefs filed due course were appellant guilty jury charged found as and parties rule pursuant to and the cause of assessed at a term confine- argument. was set for submission on oral Department the Texas of Correc- both, appellant part In relied in on Brum tions. (Tex.Cr.App. 445 S.W.2d 732 field 1969), the State adhered to whereas Chavez single issue in- before Indeed, State, supra. brief the its testimony pri- volves of as to his presented” says State “the issue is: given in preliminary or convictions hear- “Should this Court’s decision Chavez jury during of out of the application also State ... have trial; it guilt/innocence of was held introduces the cases where to enable to determine ad- transcript testimony given by a defen- missibility impeaching for purpose of guilt/innocence stage dant jury. testimony defensive to the See Tex. punishment stage of the trial?" Finding Rule they Cr.R.Evid. 104. were ruled too remote trial court out joined Thus issue in this the central was However, objection, pun- evidence. Court. present ishment it allowed the State below, opinion appel- According to the testimony through reporter read- the court be im- objection lant’s “it would ing her notes. pun- proper to allow introduction ap- appeals expressly The court of noted phase ishment which objections admitting pellant’s his earlier of deter- purpose elicited the limited for whether testimony; finding only one of those mining were ad- the convictions objections appeal, had been raised on point missible,” and the Nelson headon, and it court addressed it found “re- complained of error the evidence (Tex.App. merit. v. State Nelson hearings sulted were held from which for 2-83-315-CR, delivered —Fort Worth No. id., 4.1 The Fort purpose,” limited 21, 1984), at 3-5. November “took the Worth found nothing voluntarily stand ... and there specifically petition appellant In his ad- on the stand record to show was reasons review stated in former vanced artic- purpose,” for a It then ibid.2 302(c)(1), (3) (6). (2), The State rule its of the ulated resolution the basis alia, inter had responded, it, issue framed viz: thus for further review not shown a valid reason has Appeals of Criminal "given applicability “The Court Chavez accused, taking uniformly held that an 508 S.W.2d decision [Chavez behalf, his own waives (Tex.Cr.App.1974)], no further review the stand on so self-incrimination necessary.” privilege against complaint is Appellant’s otherwise, be used pe- that his determined satisfied that We the same subsequent him trial of response important an at a presented tition and resolve, so case. of law the Court Chavez question (Tex.Crim.App.1974). We HOLD ground, first granted viz: we review guilt/innocence throughout by presence emphasis supplied 1. All appel- stage[;]" questions of this unless otherwise noted. asked all writer the State manifestly pur- “limited for the lant answered appellant states dire PDR and brief this voir admissibility informing as pose” on request examination conducted credibility. impeaching his State; says the con- in its brief testimony taken its "use out of cerns applies rule also gain this case to the two constitutional order separate phages The benefit of another. trial.... admissible, convictions were absent A held outside objection as to the best evidence of judge, by the trial as recommended convictions, were ad- 103(c), Rule Tex.R.Cr.Evid. to determine mitted Nelson’s testimo- admissibility testimony proposed ny ground the court. The first before extracted from an accused on crossexami- error is overruled.” nation, not ipso pur is a “limited facto pose” hearing Facially plain holding in the that is constitutional sense “the reason decision,” and progeny. Simmons For this or 44.24(c), Court Article V.A.C. any appellate other court find to that testi (repealed). C.P. Accordingly, mony adduced at hearing held outside by ground raised the first for review is given solely problem before this The Court. is apparent purpose hearing, below is correct. holding other, necessarily no will not make that Therefore, merits, we turn to the testimony forever immune from adverse other reasons will judgments conclude against use an accused. must be reversed. voluntarily Once he takes stand be outset, theAt to be observed that testify defense, fore a to in his own heavily relies on inter alia privilege that an his accused has waived rehearing Brumfield against See, selfincrimination is settled. 732, at 734 (Tex.Cr.App.1969); e.g., Myre 820, 545 States, in part on Simmons v. United (Tex.Cr.App.1977). Granting proposi that U.S. 19 L.Ed.2d 1247 tion, because the did so in Brum (1968), along Denno, with Jackson v. field, appellant would have the Court rein U.S. S.Ct. L.Ed.2d 908 privilege punishment hearing, state the aat (1964). However, upon close examination viz: evaluation, we pur- believe the “limited “By offering testimony of Appel- pose” doctrine of Simmons and like deci- through legal lant the court reporter sions, federal, may state and inap- well be Appellant a effect the State called the as posite here. against punish- witness himself at the Simmons, the Supreme Court rea- * * * * phase objection. ment over soned that “an undeniable tension is cre- that the accused [Caselaw establishes] when give up ated” an accused must a testify can take the stand and for a limit- by refusing gain “benefit” testify a ed purpose, purpose whether the limited by provision “benefit” afforded another Ap- is stated or Court of not.... of Rights; the Bill thus its concern “that peals failing clearly erred in to reverse one constitutional should have to be for the conviction ... violation at surrendered order to assert led another” punishment phase Appellant’s Supreme rule out use cer- self-incrimination.” accused, tain anof viz: Brief, 14. We therefore “... hold when de- But, unlike where the State was Brumfield in support fendant testifies of motion and, permitted to “recall” accused suppress evidence on Fourth Amend- him protest, “compel” testify, appel- grounds, testimony, may ment lant no leaves unclear reason there is thereafter admitted him on be waiver in this cause. the issue of unless he makes no Impunity for such an accused who testi- objection.” fies on voir dire examination U.S., S.Ct., Id., 390 at 976. depend upon course of must purpose” The “limited doctrine of more than a conclusion that his Sim- given purpose; at a mons others formulated so required upon saying calling an accused is not surrender one more than reporter prove testimony of Thus an accused in criminal up when witness, dire con- may in the voir examination takes the stand as a case equivalent of recall- impeached stitutes functional same be in the manner as however, witness; only his charac stage; right of upon more than the involved, as a witness is not his charac ter choose not to defendant to Ray, ter as an accused. Law Evidence There is punishment stage of 643, 1 571. Texas Practice His character § more. put taking witness in issue as a development point stand, “... At impeached using may but it be adversary system, it cannot be our “veracity-character” only, except to the doubted a defendant in a criminal “proof conviction extent crime is right to case has the take the witness 649, id., permitted.” Ray, § testify in his her own de- stand and conviction fact fense.” pro proved the witness himself— Ray, viding the not too Arkansas, 44, crime is remote. 483 U.S. 107 S.Ct. Rock 660, id., 599; 658, see at 589 2704, 2708, (1987). at 37 § 97 L.Ed.2d As § 609(a) (b). confirms, and Tex.R.Cr.Evid. Rule right is Supreme Court provisions in several vouchsafed specific objection In the instant cause Pro- of the United Due Constitution States: by his counsel determined Amendment; cess Clause of the Fourteenth by appellant recounted the two convictions Compulsory Sixth Process Clause of the by the State voir dire examination Amendment; necessary corollary to the remote, provoking candid ex- are too against Fifth guarantee in the Amendment change prosecutor, with the viz: Id., -, 107 compelled testimony. at remote, THE Too both of them. COURT: S.Ct., at 2707-2708. ruling The court’s is we MR. BALL: I, 10 Bill Similarly, Article of our own § questions in front ask of those can’t right of a Rights secures the specifically Jury? heard; right is criminally to be accused They’d you it if THE reverse COURT: logically provision for com- included not be the law because did. That should from pulsory process, and is also derived background and it got man a bad has against privilege against giving evidence I’m not on ought to be admissible. But oneself; 19, that no declaration of § Appeals and the Court of Criminal except deprived liberty citizen shall be want don’t to be. law, right to by due embraces a course you ready? Are testify one’s own defense. ready. MR. BALL: We’re privi “Every criminal defendant defense, revisiting “limit- to his own after leged York, and fol- purpose” doctrine of Simmons ed refuse to do so.” Harris New 645, “our former 643, lowings, contrasted at at U.S. trial,” whereby “when (1971). unitary of a system “The of whether L.Ed.2d choice voluntarily took the stand is an exer an accused testify in one’s own defense ... Id., any legitimate cross- subjected privilege.” himself cise constitutional evidence," rules S.Ct., v. Arkan examination within 648. See Rock changes very struc- -, S.Ct., at 2710. id. at sas, supra, at wrought 37.- system by Article However, and state ture of both the federal under 737-741; V.A.C.C.P., id., from an constitutions, an chooses once accused provided “two latter interpretation not that the right testify, his exercise reasoned proceedings” limitations, separate subject but privilege of his waiver “arbitrary dis- that “a defendant’s are restrictions as by taking de- self-incrimination purposes they are proportionate S.Ct., stage is at-, guilt at the Id., stand signed to serve.” id., Fur- proceeding, at 741. particular ther, it sys- believed with a bifurcated trial 3. His of historical facts re- Legislature tem the did not intend quired “to of him on voir dire examination make the decision of an accused as to tak- prosecution was inadmissible for its the witness stand on the issue of purpose; intended sustained more onerous one than it was under the objection, the testimony was not Moreover, former Code.” Ibid. his earlier presented to the before it returned its waiver the privilege guilt. verdict of improper “did not include cross exami- Thus while waived his nation” phase. Ibid.3 by taking testifying the stand and before The central facts in are that jury, he did not Brumfield waive the held in accused any prior did not convic- common with all other witnesses to invoke and, tions in or rule statute to exclude use of inad- event, convictions about which he was com- missible evidence him. As the pelled, objection, to relate at slightly context, Court said in a altered ment would have been inadmissible for im- “His waiver of the privi- self-incrimination peachment guilt stage. Although lege did improper not include cross-exami- they failed to find unifying a common ratio- Brumfield, supra, nation.” at 741. Here- nale, Judges all participating in the cause in lies a making crucial distinction Chavez agreed that proof because of historical State, supra, inapposite. facts of convictions was not admissi- Accordingly, we hold that an ac ble under rules of evidence in the first testifying cused before a on the issue stage, appellant compelled could not be guilt right retains the his reclaim testify to them the second. any testimony given to exclude by Here, appellant guilt, also testified on hearing him in a by conducted the trial but the thrust of his testimony defensive judge presence outside the jury jury before the was solely directed to refut- order to by hear voir dire examination ing incriminatory testimony from the vic- State to admissibility determine of his own During tim. its crossexamination the State testimony proposes the State to offer apparently made known to the trial accused, and the trial court rules purposed explore that it prior convictions testimony inadmissible for its intended impeach credibility, purpose jury. and withholds it from the requested hearing to that end outside the Tex.R.Cr.Evid., 104(d).4 See Rule presence of jury with ac- —consonant cepted practice determining pre- such If an by not be “recalled” liminary questions admissibility of evi- the State to as to his by dence judge. record, the trial Lego Twomey, only remaining question 404 U.S. presentation 30 whether of his excluded testi- (1972); 2, id., L.Ed.2d 618 Ray, mony some other manner or form be- § 3. The germane Belcher, mer the defendant and ishment though that it testimony. witness which was not admissible and could not have been cross-examination at the ment and We [T]he supported by Presiding Judge Woodley, joined by Judge leading opinion by Presiding Judge legally concurred here, it was admissible evidence at the defendant was hearing. testimony error elicited from him or viz: hearing held on the late by expressing require permit was elicited from him on Judge recalled for further original hearing the state to recall him to Morrison; a view that is submission on innocence, give Onion other pun- for- 4. Rule 104. admissible at the from accused on voir dire examination been Id., implied suggestion by Judge Woodley that result would be different had convictions was Gray, testifying upon cross-examination as to case. Because (d) at 742 we need not concern ourselves about an hearing ^[*] Testimony by testimony (emphasis by Judge Woodley). Preliminary questions. jury. tfr properly guilt stage. ^[*] The accused does preliminary accused out of the hear- jury, subject ^[*] excluded testimony ^[*] matter out of as to his issues in the himself to by Judge ^[*] not, elicited by phase phasis supplied.) by assume this state- comes admissible testimony majority had ment that the means that objection that his over his testifies such a purpose of a defendant who elicited for the limited been can, ways various such as determining prior convictions were failing “opening object, as a the door” or impugn credibility admissible to any complaint about the later intro- guilt stage. waive witness testimony. duction into evidence of his that once question, we hold On that majority opinion holds: accused later “[A]n privilege to ex a defendant reclaims jury the issue of testifying before a on testimony previously ruled inad clude privi- to reclaim his retains purpose and with missible for its intended testimony given by him lege to exclude guilt, issue of from the on the held in a conducted the trial or form regardless of the manner then in order to outside the proffer, the testi makes its which proposes the State hear voir dire status and must mony privileged retains its accused, to offer excluded. for its in- rules his inadmissible therefore, re holdings, we On those withholds it from purpose tended Fort Worth judgments verse 104(d).” Tex.R.Cr.Evid., Rule jury. See court, Appeals and of me, deleted.) (Footnote To the former trial court. the cause to the remand qualified state- appears to be a statement ment, stating qualifica- what the TEAGUE, J., and filed concurred are, does not have the latter tions whereas MILLER, J., joined. opinion in which Nevertheless, I whole- any qualifications. TEAGUE, concurring. Judge, holding that the heartedly agree opinion makes. majority 17, 1985, July My notes reflect that of this Court voted least four members holding, majority authority its As discretionary review grant petition for totally upon Rule opinion appears rely Joseph Thomas filed on behalf of Tex.R.Cr.Evid., copied 104(d), which re Nelson, solely to appellant, henceforth 104(d). Some of Rule from Federal apparent solve the conflict between us that latter inform “experts” on the State, 508 decisions of Chavez v. Court’s questions of address rule does not “[t]he and Brum 384 S.W.2d testimony given by of subsequent the use (Tex.Cr.App. State, 445 S.W.2d 732 v. preliminary hearing on an accused at a field 1969). Rothstein, Evidence Rules matter....” of Magis- and Courts the United States I that give, I find For reasons that will for Ltd.), Company, trates, (Clark Boardman Chavez, supra, no conflict between there is Elkind, and Cotchett page 27. Also see “spirit” the supra, and that Brumfield, (Parker & Evidence Federal Courtroom supra, mandates that of Inc.), 20. Publications, page Son of the court judgments the Court reverse majori- court. The appeals and the trial of however, agree to appear “experts”, Therefore, I just that. ty opinion does encour- rule purpose the that the opin- majority result that the concur by the accused age participation full ion reaches. that hearings, fear preliminary gives defendant testimony that the the follow- opinion states majority be used hearing will later such a appellate or ing: “For this Court this Court comports with what This him. testimony adduced court to find that in, example, Franklin held stated and presence held outside any hearing 818, (Tex.Cr.App. 845 State, 606 S.W.2d solely given presence jury’s rules, except those 1979). Evidentiary hearing, and no purpose apparent inapplicable to privileges, are respect tes- make that other, necessarily not mil jury’s hearings held outside preliminary adverse use immune timony from forever testifies who (Em- The accused 403.) presence. (At p. against an accused."

407 hearing subject such a full testifying cross-ex- on cross-examina- prosecuting attorney jury’s presence, amination on tion in the “preliminary prelimi- matter”. removed the and conducted a Weinstein Berger, nary hearing jury’s outside of the Weinstein’s Evidence Manual (Matthew Bender), in order to make the sole determination § 3.01[04]. fairness, attorney spirit prosecuting could im- interest and in the peach rule, appellant during his object unless accused cross-examina- fails or tion complain appel- with criminal convictions that to the later offer such testimo- previously lant Appellant had sustained. ny by prosecution prosecution, hearing concerning testified at two should permitted not be to use that testimo- sustained; criminal that he had convictions ny manner; in a evidence substantive felony one 1968 of carry- offense otherwise, permit the later introduction weapon and court concealed martial defendant’s to be used as conviction in 1961 or There is noth- him, substantive evidence when ing in might that reflect or given such testimony or evidence was for a prosecution indicate that intended to specific purpose hearing, appellant’s testimony later offer into evi- discourage, would clearly and not encour- punishment stage dence at the of the trial age, participation prelimi- accused guilty by event was found nary hearings conducted outside jury, nor was admonished that jury’s presence. might hearing, occur. After the pause point conducting pre- out that appellant’s objections, sustained hearings liminary jury’s outside of the ground on the criminal con- presence in order determine the admissi- impeachment victions were too remote for bility really evidence not a modem purposes, permit prose- and refused to hearings invention of our law. Such have cuting impeach attorney appellant with been held time since immemorial. It is For convictions. a dis- only as a result of the “Warren Court” remoteness, subject cussion on the see decisions such as Simmons United McClendon v. 854 S.W.2d States, 390 U.S. S.Ct. L.Ed. (On (Tex.Cr.App.1974) appellant’s motion (1968), Denno, 2d 1247 and Jackson 609(b), for rehearing). Also see Rule Tex. U.S. 12 L.Ed.2d 908 R.Cr.Evid. The record reflects that at no (1964); Lopez this Court’s decisions time thereafter did waive his State, 384 (Tex.Cr.App.1964); S.W.2d 345 complaint State should have (Tex.Cr. Martinez v. permitted been use the App.1969), Bosley S.W.2d appellant gave order to 468 (Tex.Cr.App.1967); and the advent of appellant’s prior establish criminal record Procedure, 1965 Code Criminal particular 28.01, V.A.C.C.P., Art. see guilty, After found preliminary hearings conducted outside the trial conducted a hear- jury’s emphasized. have now been ing. stage did at Appellant not this subject See discussion this found in trial, right. as was his The trial Franklin, State, supra. Also Myre see judge, objection, permitted prose- 820, (Tex.Cr.App.1977). S.W.2d cuting reporter, attorney to call the court My research date reveals that this appel- who took down unquestionably nicely case does not fit gave hearing preliminary lant above parameters any prior within the decision convictions, prior about his to tes- of this I Court or other court that can jury’s tify. pres- testified in She then Thus, majority opinion’s find. lack of appellant’s prior ence criminal con- about support holding authority to its is under- reading appellant’s victions the notes of standable. prelimi- she had taken at the nary during guilt this record of cause reflects that that was held stage trial, stage nothing in of the when of the trial. There is might “Initially, knowing, and volun- intelligent, appellant’s petition for discre- trial an counsel implicit The makes nothing tary a manner. tionary other than xe- review sustained defendant had in the the fact that the of his brief that he filed copy rox convictions, none but prior criminal cause was on several appeals of when the impeachment were available reply in its to of them appeal. The direct ei- not involve they did discretionary purposes because re- appellant’s petition or misdemeanor felony convictions view, following: ther correctly the asserted involving turpi- crimes of the not him convictions moral cause to assess the death objection, Over penalty. tude. State called This Court affirmed. See Chavez testify punishment to at defendant (Tex.Cr.App.1966). 408 S.W.2d 714 stage trial, prove up to his finding Subsequently, after that the trial punishment pur- criminal convictions for judge’s were admonishments insufficient 37.07, original poses. supra. See Art. On existed, under the law that then this Court submission, on and also State’s motion for granted the defendant a new trial. See Ex rehearing, held this Court that the parte Chavez, (Tex.Cr.App. 482 S.W.2d 175 have, objection, should not recalled retried, 1972). The defendant was but this testify the defendant to did pled guilty testify, time he not and not stage of further the trial “for cross-exami- him guilty after which the found of nation”, judg- and ordered trial court’s committing rape. the offense of The trial ment reversed and cause remanded for judge his at years’ assessed a new trial. This held that a defen- Court Department of confinement Correc though prosecution, dant a criminal he trial, During per tions. may waive his at self-incrimination objection mitted over to introduce the de testifying trial given he fendant’s had at intelligently, knowingly, voluntarily at appeal, reject trial. On this Court first trial, com- not be ed the defendant’s contention that the trial give against pelled to evidence himself into admitting erred evidence his punishment stage merely of the trial trial, gave that he first guilt stage. because testified appellant’s applying contention the rule real, sense, a though In not literal what accused takes that “an who the stand happened to the defendant in self-incrimination], waives the [of supra, actually happened what testimony may so that his be used cause, this as the subsequent him at trial of the same this cause was forced to (386). case.” that this cases Court punishment stage himself at the authority reject as its upon relied through the reporter; mouth the court contention, however, inap- defendant’s are i.e., reporter when the court testified posite the issue that was before this merely trial she Thus, resolve. Chavez’ founda repeated ap- the testimonial evidence that fact, quick In tion resembles sand. close pellant given had Chavez, cited in reading of authorities jury’s presence that was held outside the virtually supra, every makes it clear that of his trial Chavez, single authority cited in admissibility appellant’s prior criminal only admissibility concerned a defen impeachment purposes. convictions for As properly admit dant’s confession out, previously pointed ruled evidence at the defendant’s first ted into after that the State could then reoffered into evidence at his impeach appellant rejecting retrial. the defendant’s con they were convictions because too remote. tention, obviously poor made a this appeals upon Because the court relied statute that analogy to confession Chavez, supra, Court’s as decision provided that if then extant. law then authority reject appellant’s its conten- knowingly, intelligently, defendant tion, necessary it is scrutinize what confession, voluntarily gives confes Chavez, supra. Court stated and held though even sion is admissible evidence at his does not trial. Cf. Chavez, defendant set

The facts that are out (Tex.Cr.App. 64 S.W. 1054 Wooleyv. defendant was first supra, reflect that the Thus, 1901). “con because the defendant’s plea guilty tried convicted on into evi fession” admitted capital rape then in a non-bi- offense trial, first admissible dence at his it became trial. The defendant testified furcated trial, unsuccessfully attempting at his retrial. stage trial. Given this a It is axiomatic that when defendant of bifurcated stage of his trial holding testifies Court’s later criticism of the that i.e., purposes, he is on stand for all he Stratman, supra, was made in contradicted, impeached, may be discred- Stratman, cited, supra, should be much ited, give damaging and made incrimina- discussed, may seriously ques- less be himself, ting evidence cross-exam- tioned. matter, every treated in ined as to new and State, (Tex. In Walker 555 S.W.2d testifies, any who respect as other witness Cr.App.1977), questioned this Court except overriding when there are constitu- continuing viability holding that was Brown v. prohibitions. statutory tional or Stratman, supra: agree made in “We State, (Tex.Cr.App. 617 S.W.2d expressed plurality’s concern in [as 1981). If a tried and defendant is convict- Brumfield, supra,] adopt and a would deci testifies, ed, during which he he trial and sion to overrule Stratman to the extent retried, receives a trial and is and later new (457). Walker, supra, In conflict.” retrial, at he testifies at following pointed also out: “The impeach trial him. the first be used Brumfield, agreeing that plurality while However, the fact that a defendant chooses decided, did not Stratman correctly trial, testify guilt stage of his at but agree that when a defendant takes the trial, punishment stage of not at the stand the trial on the issue of and does not constitute a waiver at stage testify latter trial. fails to utilize certain convictions See Brown right. still He maintains that purposes impeachment available to it for State, supra. That is what occurred a credibility of the defendant’s as witness Conversely, cause. if the defendant this behalf, then in his would be own testify guilt stage not to chooses permitted to recall the defendant trial, but testifies at interrogate and him about penalty trial, stage he is to be treated as prove such convictions order to stage at that witness who testifies Brum plurality The criminal record. [in see Sweeten Also the trial. field, supra,] was that a concerned (Tex.Cr.App.1985), this where of Stratman would reading permit an ex that held even where defendant holding the recall of tension of its to allow knowingly, vol- intelligently, testifies if as a witness for the State defendant guilt stage untarily at the admissible at evidence would have been of error to the does not waive his claim impeachment purposes.” illegally an ob- admission of erroneous (457). by offering tained confession into evidence supra, Brumfield, “spirit” stage of his into evidence at that cause, and clearly applicable to this portions of the confession. exculpatory “spirit” applied by this Court in has been Chavez, supra, The facts more decisions. several of its recent before the to resolve that was clearly inapposite supra, held Brown the facts In this Court cause are cause, request the issue resolved made to the trial be where relying erred in appeals the court of charge court to add to its Chavez, authority to supra, as its upon of the trial an instruction reject appellant’s contention. of the defendant failure trial, ferial and the made Stratman holding In refuses, error. such error reversible Brown, supra, rejected the this Court by this Court be- had been decided which that because State’s contention supra, must it decided fore given such an instruction judge had Stratman, mentioned. automatically guilt stage of the trial this a bench trial it held that .Court stage of the over to the carried the State recall permissible for “punishment” defendant reemphasize in

I must that are not that is we before us to is resolve dealing 37.07, cause where evi- this with retrial not whether under Art. the freely, knowingly, intelligently, dence was proved up by independent State could have voluntarily given by in the defendant testimony appellant’s prior criminal convic- jury’s presence the trial trial, first punishment stage tions the of his that same evidence admitted into evi- statutory because it is clear our under instance, during on dence retrial. In this just it case law that could have done that. guilt stage the trial judge the the See Beck v. 209-211 hearing ordered a to be conducted outside discusses the which presence of jury the order make many, many ways may that es- prose- the sole determination criminal prior tablish defendant’s record. cuting attorney appel- could cross-examine The issue is instead whether the evidence presence jury’s lant about two crimi- appellant’s prior about criminal convictions previously nal convictions that he had sus- hearing that was adduced at the that was conducting hearing, tained. After presence, jury’s held outside the and that clearly which was hearing, “limited” appel- concerned the sole issue of whether judge ruled that because of remote- impeached presence lant could be prosecuting attorney ness not be would convictions, jury prior with his criminal permitted impeach appellant with those punish- became admissible evidence presence convictions in the jury. of the stage ment of the trial. However, punish- at the later Judge Presiding pointed Onion out hearing ment after conducted the Brumfield, supra, that our bifurcated trial jury had guilty found of the al- system amounts two trials with each offense, leged objection, introduced stage serving pur- different functions and into evidence reporter poses, consequences with the of error not appellant’s who recorded testimony at the necessarily related to other. Also see hearing that was jury’s held outside the (Tex.Cr. parte Augusta, Ex 689 S.W.2d481 that had App.1982). More important to the issue given at hearing. Presiding Judge pointed here what Onion happened clearly

What in this cause on Brumfield, supra, page out 740 of his equivalent the functional of the State re- opinion for the Court: calling a defendant to at the [Wjhere the taken defendant has prior trial about his guilt stage proceed- stand at the of hap- criminal approve convictions. To what ings any part prior pened in this if cause would defeat properly impeach- record is used for outright “spirit” banish from our law legally ment or is otherwise intro- Brumfield, supra, virtually as well as duced, the same need not re-intro- be destroy actively a defendant hearing punishment. duced at participate in a conducted outside may Such evidence be con- jury’s presence that does not concern judge assessing jury sidered some federal constitutional claim or some (My emphasis.) penalty. statutory state constitutional or claim. Of what statement believe that the above course, if the trial cause had it is only means when the has appellant, testify- admonished heard evidence that ruled admissible preliminary hearing, that it consider such gave con- punishment stage evidence at the cerning convictions would become instance, trial. did not hear admissible at the appellant’s prior about criminal convictions trial, if any, perhaps question then another would be before this Court for it to answer. However, Presiding Judge pointed no such occurred Onion further admonishment following supra: in this cause. out the 37.07, V.A.C.C.P., presence during jury’s If can inter- Article the trial. preted providing separate pro- as two ceedings then follows that a defen- it privilege

dant’s waiver of MILLER, J., joins opinion. by taking self-incrimination the stand at particu- And is so proceeding

lar ... if this permitting the State to

court erred

recall the for further cross-ex- stage. penalty

amination finding not terminate

mere does privilege self-incrimination. Angeles de Los & Maria VALCARCEL noted, As earlier ceases Valcarcel, Appellant, Marcos William only liability no when 741). (445

longer exists. S.W.2d at parte Augusta, Ex supra. Also see Texas, Appellee. The STATE of sum, permitted what the 1249-86, 1250-86. Nos. equiva- indo cause the functional Texas, Appeals of Criminal recalling lent of En Banc. objection over his clearly The trial court erred in Feb. Brumfield, su- permitting this to occur. Brown,

pra; supra. Sim “spirit” supra,

mons, Denno, supra, and Jackson v. re such cases “would seem to

quire that the could not no less” than punish

recall instance, of his trial. In this erroneously to do permitted

the State Brum held in

indirectly what this Court

field, supra, that it could not directly. do State,

E.G., Montoya 744 S.W.2d Augusta, Ex parte State, Johnson v. Compare

supra. 1986) (State’s (Tex.App. 9th

S.W.2d State, refused). But see Walker

P.D.R. 457. Also see Moss

555 S.W.2d (Tex.Cr.App.1982); S.W.2d 344 (Tex.

Stewart 1984) refused); (State’s P.D.R.

App. 5th (Tex.

Pierson v. refused). 1985) (State’s

App. 14th P.D.R.

Therefore, I result that the concur reaches,

majority admitting reversibly into erred stage of the

evidence reporter the testi- the court given at the hear-

mony appellant had was conducted outside record that reflect indicate that notes Appellant proved up directly the State could not have does not Ap- address the Court of punishment stage appellant’s peals opinion; of the trial simply provides but instead through criminal convictions other Court with word-for-word rendition State, 205, means. See Beck v. 719 S.W.2d of the written brief submitted to the lower 4, (Page Reply 209-210 for a discussion court.” Peti- State’s Review.) course, many, many ways that tion for Of when this might prove up grant a defendant’s criminal Court considers whether or not to review, petition discretionary pri- record at the of the trial for its using testimony. mary the defendant’s focus and attention at that time is 37.07, upon opinion particular Also see Art. V.A.C.C.P. As to the court of conviction, properly proved appeals, correctly court martial if to see if it stated and up, applied a court martial conviction is admissible the law to the facts of the case and 37.07, pursuant supra. to Art. See John to the issue that needed to be resolved. 98, Therefore, (Tex.Cr. any party son I admonish who seeks App.1968). grant petition his or her have this Court discretionary they should review appeals appeal, On direct the court of carefully pre- take this into consideration in Chavez, supra, upon authority relied as its discretionary paring petition review reject appellant’s contention that his tes- brief, accompanying any. if and the timony given preliminary guilt stage Appellant’s in of his trial counsel his brief before argues, alia, pun- inter that “The should not have been admitted at the stage Appeals clearly failing in ishment of his trial the court Court of erred However, reporter. not mention or reverse the conviction and remand the it did for the violation at applicability Brumfield, discuss the su- cause for a new trial Appellant’s pra, unpub- punishment phase court’s to the issue. See that opinion Tex.App- lished self-incrimination.” Nelson v. 2nd, 2-83-315-CR, (Page “Appellant’s on the Mer- No. November Brief its.”) appears majority It to me that the State, supra, held that a Brumfield adopted virtually opinion substantively -has defendant who testifies at the arguments all of the State’s that are set not be recalled of a Merits”, Brief on the out “State’s attorney prosecuting argues and because most of what the State spirit, if stage of the trial. “The not the majority can be found its brief Denno, letter of Jackson v. U.S. arguments. repeat I will not those [1964], 12 L.Ed.2d 908 [also States, majority opinion, as does the 390 U.S. see Simmons United (1969)], appears acknowledge that what occurred 19 L.Ed.2d 1247 S.Ct. literally fit the factu- permit a defendant to testi- this cause does would seem [to Chavez, supra, or in the trial but not the al situations found fy at one However, (445 supra. agree. system].” Brumfield, our bifurcated letter, 741). “spirit”, if not the should be how the issue controls review, discretionary petition In resolved. repeated “ground verbatim State, supra, the defen- for Re- In number one” his “Ground error Brumfield of his (1).” fact, I find that dant testified at No. One view

Case Details

Case Name: Nelson v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 25, 1989

Citation: 765 S.W.2d 401

Docket Number: 0068-85

Court Abbreviation: Tex. Crim. App.