Coffey v. State

• Decision Date: 12 September 1990
• Docket Number: No. 231-88,231-88
• Citation: 796 S.W.2d 175
• Parties: Raymond Edward COFFEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 175

796 S.W.2d 175

Raymond Edward COFFEY, Appellant, v. The STATE of Texas, Appellee.

No. 231-88.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 12, 1990.

Ken J. McLean (court appointed on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and J. Harvey Hudson, Chuck Rosenthal & Cathleen C. Herasimchuk, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

Opinion on Appellant's Petition for Discretionary Review

CAMPBELL, Judge.

Appellant was convicted of the offense of injury to a child. V.T.C.A. Penal Code, § 22.04(a)(1). A jury sentenced appellant to 50 years confinement in the Texas Department of Corrections and a $10,000 fine. The First Court of Appeals affirmed appellant's conviction in a published opinion. Coffey v. State, 744 S.W.2d 235 (Tex.App.--Houston [1st] 1987). We granted appellant's petition for discretionary review in order to determine: (1) Whether the Court of Appeals "erred when it held that it was permissible for the State to proffer the witness Patty Ann Kalmbach, a co-defendant, before the jury knowing she intended to invoke the Fifth Amendment notwithstanding a grant of use immunity;" ¹ and (2) whether "The Court of appeals erred by holding it was not error[,] over objection[,] to allow the prosecutor to argue 'I also submit to you one of the ways we have proof of his guilt is his demeanor. As you have watched him during this trial in this room and during his confession at the hospital and during his arrest.' " ² We will affirm the judgment of the Court of Appeals.

In his first three grounds for review, appellant complains of the State calling Patty Kalmbach to testify before the jury, knowing that she would claim a Fifth Amendment privilege. ³

In regard to appellant's first three grounds for review, the Court of Appeals held that the witness, Kalmbach, did not have a right to invoke her Fifth Amendment rights because she had been granted use immunity for her testimony. ⁴ Cf. Franco v. State, 491 S.W.2d 890 (Tex.Cr.App.1973). Therefore, because the State had the right to compel Kalmbach's testimony, it was not error to call her to the stand and allow the jury to see her invoke the Fifth Amendment.

Appellant counters that the potential for unfairly prejudicing the jury is unaffected by the validity of a witness's Fifth Amendment claim. In addition, appellant argues that the circumstances of this case guarantee that the jury would construe Kalmbach's refusal to testify in a manner that would be detrimental to him.

The State essentially echoes the position taken by the Court of Appeals. First, it argues that Kalmbach had no Fifth Amendment privilege and that she could have been compelled to testify. Second, it argues that the jury could not have drawn any improper inferences from Kalmbach's invocation of the Fifth Amendment.

Appellant's argument is grounded on the premise that, regardless of whether an invocation of the Fifth Amendment is proper a jury will necessarily draw improper conclusions when the State calls a witness who refuses to testify.

The Court of Appeals' position on this issue is clear, viz, the co-defendant could not validly invoke the Fifth; therefore, no harm could possibly accrue to the appellant.

Using that rationale a vehicular homicide victim would be less dead because the accused did not intentionally run him down.

Appellant's Petition for Discretionary Review 3. The fatal flaw in appellant's reasoning is the unstated assumption that any negative inference made by a jury when a witness refuses to testify is improper. A jury may consider an invocation of a Fifth Amendment privilege under some circumstances.

The right to be free from comment about a failure to testify is not absolute. In United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), the United States Supreme Court allowed a prosecutor to argue that "[the defendant] could have taken the stand and explained it to you, anything he wanted to. The United States of America has given him, throughout, the opportunity to explain," in response to defense counsel's closing argument that the government had not allowed the defendant to tell his side of the story. Thus, under those facts, it was permissible for the prosecutor to mention and for the jury to take note of the defendant's failure to testify.

Another exception to the general prohibition against allowing the jury to see an invocation of a Fifth Amendment privilege arises in certain instances where the State calls a witness who refuses to testify. This rule allows the State to call such a witness when " 'the prosecutor's case would be seriously prejudiced by a failure to offer him as a witness.' " United States v. Vandetti, 623 F.2d 1144 (6th Cir.1980). ⁵

Our own Fifth Circuit has justified this rule in a number of different settings and on a number of rationales. In United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), the defendant, a letter carrier, was prosecuted for stealing a silver dollar from an envelope that he was to deliver. When he was arrested, a postal inspector discovered that the defendant had two credit cards in his wallet that appeared to be stolen. Defendant opted to testify and claimed to have found the coin loose in a mailbox and that he intended to turn the coin over to his supervisor. The government introduced the two credit cards, which appeared to have been stolen by the defendant along his delivery routes, to rebut defendant's claim. During the State's cross-examination of defendant, the defendant refused to respond to any questions concerning the credit cards.

Although the trial court allowed the defendant to claim a Fifth Amendment privilege, the Fifth Circuit held that the defendant had waived his Fifth Amendment privilege, as to matters relating to his testimony, when he elected to testify. Because the government could have sought to compel the defendant to testify, there was no error in allowing the jury to hear the defendant invoke the privilege. Beechum, 582 F.2d at 909.

Here the defendant took the stand, knowing full well that the Government would inquire about the cards because the court had refused to prohibit that inquiry. Any prejudice deriving from the invocation of the privilege is therefore attributable to Beechum's decision to testify. Indeed, Beechum can hardly complain; if the court had ruled correctly and not allowed him to invoke the fifth amendment, he could have refused to respond only on peril of contempt. See United States v. Brannon, 546 F.2d 1242, 1247 (5th Cir.1977). Moreover, in that instance the Government would have been entitled to comment on Beechum's refusal to answer, see Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), notwithstanding the prohibition on such comment where the privilege is properly invoked....

Id. at 909 (footnote omitted).

Here, appellant is in a very similar situation. Because Kalmbach had been granted use immunity for her testimony, she did not have a valid basis for refusing to testify. Ullman v. United States, 350 U.S. 422, 437, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956); cf. Washburn v. State, 299 S.W.2d 706, 708 (Tex.Cr.App.1957) (The Court held that it was improper for jury to hear witness's invocation of Fifth Amendment because immunity was only offered to the witness, not actually granted by the trial judge.). To the extent that State could have sought to compel Kalmbach's testimony, in lieu of allowing her to assert a non-existent privilege, appellant was not unfairly prejudiced. ⁶ Appellant's first, second, and third grounds for review are overruled.

In regard to appellant's fourth ground for review, the Court of Appeals held that appellant's trial counsel failed to preserve error related to the prosecutor's jury argument. At trial, counsel objected, as follows:

[MR. ROSENTHAL]: I submit to you that it is a fair deduction from the evidence that he did not do it [abuse complainant] in front of other people because Mrs. Annoot told him if he he [sic] did it again, she was going to report him to Harris County. That's a good reason to be secretive about it. I also submit to you one of the ways we have proof of his guilt is his demeanor. As you have watched him during this trial in this room and during his confession at the hospital and during his arrest--

MR. HILL [defense attorney]: I object to any reference to him [appellant] and his demeanor while in the courtroom. It's a violation of [his] right not to testify.

THE JUDGE: Overruled.

MR. ROSENTHAL [prosecutor]: --he apparently, is not very concerned, according to everybody that we have talked to, about this little boy's death. Yes, it's an emotional case, and I wish that we could have brought you more evidence.

The Court of Appeals disposed of this point of error as follows:

Appellant's fourth point of error asserts that the trial court erred in overruling his objection to the prosecutor's closing argument regarding appellant's demeanor.

An objection raised on appeal will not be considered if it varies from the objection made at trial. Euziere v. State, 648 S.W.2d 700, 703 (Tex.Cr.App.1983). Appellant's objection at trial was that the argument was a comment on appellant's failure to testify. His ground of error on appeal is that the argument went outside of the record. The Court of Criminal Appeals found this same mismatching of objection to be insufficient to preserve error in Bouchillon v. State, 540 S.W.2d 319, 322 (Tex.Cr.App.1976). Appellant has failed to preserve error for review.

Appellant's fourth point of error is overruled.

Coffey, 744 S.W.2d at 239.

Appellant argues that the context of events made the substance of the trial objection clear, and, once reaching the merits, the prosecutor's behavior is contrary to our decision in Good v. State, 723 S.W.2d 734 (Tex.Cr.App.19...