Brumfield v. State

• Decision Date: 19 March 1969
• Docket Number: No. 41808,41808
• Parties: Cecil J. BRUMFIELD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 732

445 S.W.2d 732

Cecil J. BRUMFIELD, Appellant, v. The STATE of Texas, Appellee.

No. 41808.

Court of Criminal Appeals of Texas.

March 19, 1969.

Rehearing Denied Oct. 22, 1969.

Charles W. Tessmer (on appeal only), Donald R. Scoggins (on appeal only), Dallas, for appellant.

Henry Wade, Dist. Atty., Michael Blend, Harold Entz, Kerry P. FitzGerald, Malcolm Dade and Camille Elliott, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is driving while intoxicated; the punishment 60 days in jail, and a fine of $50.00.

We are confronted at the outset with the constitutional right of an accused not to be required to give evidence against himself.

At the hearing on guilt or innocence appellant testified as to his innocence of the offense here charged and nothing else.

After the jury had found him guilty, a hearing was had before the same jury on the question of punishment, as provided by Art. 37.07, of the Vernon's Ann.Code of Criminal Procedure. At this time the State called appellant to the stand and he was required, over objection, to give evidence against himself as to two prior convictions for the offense of the same nature. Such offenses were not admissible as impeachment when he testified on the merits because they were not felonies nor did they involve moral turpitude.

In Stratman v. State, Tex.Cr.App., 436 S.W.2d 144, we held that it was not error for the State to examine a defendant in regard to his prior convictions by calling him at the punishment phase of his trial when he had testified at the guilt or innocence phase of his trial. But Stratman is not applicable to the instant case for the following reasons: In Stratman, trial was before the court, not before a jury as in this case. Stratman testified during the guilt or innocence phase of his trial that he had previously been convicted of felonies, whereas here appellant did not testify as to his prior convictions at the guilt or innocence phase of his trial. And Stratman's prior convictions were admissible for impeachment and were alleged in the indictment for enhancement, while here appellant's convictions were neither admissible for impeachment nor were they alleged in the information for enhancement. It should be noted that we are not here discussing any admission an accused may make as to prior convictions as a part of his plea to the court.

We reiterate that the question here is that the appellant was called to the witness stand by counsel for the State, over his protest, and then required to give evidence against himself which bore on the punishment to be assessed against him by the jury.

The Supreme Court of the United States has recognized that an accused might not constitutionally be deprived of the right to be heard on one phase of his case for fear of being called upon to incriminate himself at a later hearing. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, clearly illustrate their view.

For the error pointed out, the judgment is reversed and the cause remanded.

WOODLEY, P. J., and ONION, J., concur in the result.

DOUGLAS, J., not participating.

ON STATE'S MOTION FOR REHEARING

ONION, Judge.

At appellant's trial for driving a motor vehicle while intoxicated he voluntarily took the stand on the issue of guilt. After the jury verdict he was recalled by the State, over objection, for further cross-examination at the penalty stage of the trial before the same jury. On original submission we determined that such action constituted reversible error.

The State vigorously urges reconsideration of the result reached on original submission. In view of the vast importance of this decision to all cases tried under the bifurcated trial system provided by Article 37.07, V.A.C.C.P., we shall do so.

This is apparently a case of first impression in this state. ¹ In view of our somewhat unique procedure, the decisions from those jurisdictions where a limited two stage jury trial on the English-Connecticut style exists in any form have not been of great aid. As the United States Supreme Court noted in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606, '(t)wo part trials are rare in our jurisprudence; * * *'

The question we must decide is the following:

May an accused, who has voluntarily taken the witness stand at the guilt stage of a bifurcated trial, be recalled for further cross-examination by the State, over objection, at the hearing on punishment in order to establish and prove his 'prior criminal record?'

The Fifth Amendment, United States Constitution, provides that an accused in a criminal prosecution shall not be compelled to give evidence against himself. Such amendment has now become applicable to the states. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678; Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

The Texas Constitution, Article I, Sec. 10, contains a similar provision. See also Article 1.05, V.A.C.C.P.

And it has been said that this federal constitutional right must not be interpreted 'in a hostile or niggardly spirit,' Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 518, 100 L.Ed. 511, and should be given a liberal application and construction, Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574; Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118; Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110, 1113; De Luna v. United States, 308 F.2d 140, 149 1 A.L.R.3d 969 (5th Cir.), for the privilege against self-incrimination is as broad as the mischief against which it seeks to guard. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

The proposition that a criminal defendant cannot be compelled to take the stand and give evidence against himself is so well understood that it requires no citation of authority to support it.

No adverse inference can be drawn from a defendant's failure to testify and comment on that failure is forbidden. Griffin v. California, supra; Article 38.08, V.A.C.C.P.

And it has been held that self-incrimination is not lost until the proceedings against the accused under indictment have been terminated, 58 Am.Jur.2d, Witnesses, Sec. 43, p. 48, and that the privilege ceases only when liability to punishment no longer exists. Texas Law of Evidence, McCormick and Ray, 2nd ed., Sec. 444, p. 383.

This constitutional right may, of course, be waived if done knowingly, voluntarily and intelligently.

And it is well established that when an accused voluntarily takes the stand he waives his privilege against self-incrimination.

Under our former system of a unitary trial it was said that '(w)hen defendant takes the stand as a witness he is subject to the same rules as any other witness. He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness testifying in behalf of defendant, except where some statute forbids certain matters to be used against him, such as proof of his conviction on a former trial of the present case, his failure to testify on a former trial or hearing, and the like.' 1 Branch's Ann.P.C., 2nd. ed., Sec. 168, p. 170, and cases there cited. See also Shelton v. State, Tex.Cr.App., 397 S.W.2d 850; Texas Law of Evidence, McCormick and Ray, 2nd ed., Sec. 443, p. 381; 62 Tex.Jur.2d, Witnesses, Sec. 205, p. 130; 98 C.J.S. Witnesses § 369, p. 121, Sec. 370, p. 123. Thus, when an accused voluntarily took the stand he subjected himself to any legitimate cross-examination within the rules of evidence, any relevant inquiries about the charge against him.

And it was consistently held for many years that an accused may not take the witness stand for a limited purpose. Perez v. State, 170 Tex.Cr.R. 586, 343 S.W.2d 256; Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Tyler v. State, 163 Tex.Cr.R. 441, 293 S.W.2d 775; Holder v. State, 140 Tex.Cr.R. 55, 143 S.W.2d 613; Gonzales v. State, 160 Tex.Cr.R. 548, 272 S.W.2d 524; Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242; 62 Tex.Jur.2d, Witnesses, Sec. 210, p. 140.

In Holder v. State, supra, the defendant sought to take the stand for the limited purpose of proving up his application for a suspended sentence (See former Articles 776--781, V.A.C.C.P., 1925) but was cross examined about the crime charged and a judicial confession obtained. Such cross-examination was held proper. See also Brown v. State, 77 Tex.Cr.R. 183, 177 S.W. 1161.

In Tyler v. State, supra, the court properly refused to permit the defendant to testify for the limited purpose of showing who had possession of and resided in the apartment where the defendant was found by police in possession of heroin.

In Robinson v. State, supra, the defendant was offered for the limited purpose of testifying as to guilt or innocence of the primary offense charged. There is was held proper for the State at the one stage proceedings then in use to prove by him on cross-examination the prior convictions alleged in the indictment for enhancement.

In Gonzales v. State, supra, and Rubens v. State, supra, it was established that an accused may not be permitted to take the stand for the single and limited purpose of testifying that the confession was not a voluntary one.

It was also well established in cases tried under the former Code that when the defendant takes the stand he is on for all purposes and may be cross examined as to the whole case. Perez v. State, supra. And that the State was not confined in its cross-examination to matters elicited on the direct examination of the defendant. Shelton v. State, supra; Robinson v. State, supra.

Further, after testifying...