Ellis v. State

• Decision Date: 19 September 1984
• Docket Number: No. 0143-83,0143-83
• Parties: Donald Joseph ELLIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 379

683 S.W.2d 379

Donald Joseph ELLIS, Appellant, v. The STATE of Texas, Appellee.

No. 0143-83.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 19, 1984.

Catherine E. Greene and Janet Seymour Morrow (court appointed on appeal only), Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Ray Elvin Speece, Tom Henderson and Chuck Rosenthal, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., and Cathleen Riedel, Asst. State's Atty., Austin, for the State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This appeal involves convictions from two counts of aggravated robbery in the same indictment. Punishment, enhanced by allegation and proof of two prior felony convictions, was assessed at life imprisonment on each count following the jury verdicts.

On appeal the appellant, inter alia, urged the trial court erred in not allowing him to call his co-defendant, Ballard, before the jury to assert his (Ballard's) claim of Fifth Amendment protection against self-incrimination. Appellant argues the assertion of the privilege against self-incrimination by Ballard was not a legitimate claim of the privilege but was a part of a prior plea bargain agreement, and appellant's counsel was surprised by Ballard's refusal to testify.

The Houston Court of Appeals (1st Dist.) affirmed the convictions, holding, inter alia, the trial court did not err in refusing to allow appellant to call the co-defendant before the jury to assert to his previous claim of Fifth Amendment privilege against self-incrimination. Ellis v. State, 646 S.W.2d 554 (Tex.App.--Houston [1st Dist.] 1982). We granted appellant's petition for discretionary review to determine the correctness of that portion of the decision below.

The record revealed that the alleged robberies occurred at Jones' Apothecary Stores at different locations in Harris County. The first occurred on March 26, 1981, and the second on April 22, 1981. Cash and drugs were taken in each robbery. Appellant and Charles Ballard were identified by witnesses as the two men involved in both robberies.

Appellant testified and denied involvement in either robbery. He testified that during April, 1981, he was seriously ill with infectious hepatitis at his ex-wife's house. He stated he had loaned Ballard his car for several weeks while he was ill. His former wife corroborated appellant's testimony as to his illness and loaning the car to Ballard. Other defense witnesses testified they were in business meetings with appellant about the time of the March robbery.

Turning to appellant's contention, we observe that appellant filed a pre-trial motion "to require the prosecution to reveal any agreement with a witness that could influence his testimony." The motion was expressly directed to Ballard, and asked the prosecutor to reveal any concessions or promises made to Ballard which could occur "in the event ... Ballard ... cooperated with the prosecution by testifying against the Defendant herein."

When prior to trial the said motion was called for consideration, a somewhat disjointed colloquy at the bench occurred. It does appear the prosecutor stated Ballard had plead guilty to two counts of an indictment, and two counts had been dismissed; that part of the agreement was that Ballard was not to testify for either party at appellant's trial. He stated he had not talked to Ballard, but to his lawyer and it was understood Ballard could be "recharged" with the dismissed counts. Appellant's counsel stated this was what he wanted to bring out in the presence of the jury. After some further discussion about the dismissed counts and count three of appellant's indictment which had been abandoned by the State, the court stated to appellant's counsel, "I don't know what you expect to prove." The record then reflects:

"MR. PANDAK (Defense Counsel): Not to fully disclose our hand, but what we intend to do is put the co-defendant on voir dire and put some evidence on for this court to show that this witness is completely adverse, and that I'll be able to treat him as if the State had called him to the stand.

"MR. ROSENTHAL (Prosecutor): There's no such rule in the State of Texas.

"MR. PANDAK: Yes, I know that, but that's the intent that we have.

"MR. HENDERSON (Prosecutor): We don't have an adverse witness rule. If he calls him, he's liable for everything he says."

The court then suggested that it would carry the motion, and later allow appellant to tender the witness Ballard out of the jury's presence in order to fully develop the record when Ballard's attorney could be present. Appellant agreed.

After the State rested its case at the guilt stage of the trial without calling Ballard as a witness, and prior to the appellant offering any evidence, the court indicated Ballard would be called outside the jury's presence. It also noted Ballard apparently wanted to discharge his court-appointed counsel.

Prior to being sworn, Ballard stated he would refuse to answer "anything on this case" on the ground it might tend to incriminate him. After being sworn, Ballard refused to answer any questions until he talked to an attorney. He didn't want to be incriminated in any way. At this point, F.M. Stover, his court-appointed counsel, stated for the record he represented Ballard on his guilty plea, that when he attempted to impart some legal information the day before Ballard had refused to talk to him. Counsel then, in open court, advised Ballard he did not, under the federal and state constitutions, have to give testimony that might tend to incriminate him. Attorney Stover stated he had previously recommended Ballard not testify, and he was now urging Ballard not to testify in appellant's case.

In response to the court's inquiry, Ballard took "the 5th" and refused to answer any questions. Ballard refused to answer appellant's question that he had told a Mr. Ellis ¹ he would testify. Appellant then claimed surprise, asked the court to rule thereon so he could have Ellis impeach "this testimony." The prosecutor then informed the court that Ballard had asked to withdraw his guilty pleas entered in another court. After appellant indicated he had no further questions of Ballard, the court inquired:

"You want to put this testimony on in front of the jury, or do you not?

"MR. PANDAK: Your Honor, I don't want it unless--until after my ruling on the surprise is made. I don't think it would be appropriate at this time."

Ballard was removed from the courtroom and the court offered to hear "proof as to surprise." Attorney Stover was called by the appellant. He testified that before or at the time of Ballard's guilty pleas he told appellant's counsel he had no objection to counsel talking to Ballard; that he saw counsel conversing with Ballard, but didn't know what was said. Stover vaguely recalled a conversation with appellant's counsel and other individuals in another court in which he was asked to be present at the instant trial; that he had stated he assumed Ballard would not testify, and appellant's counsel indicated Ballard would testify. Appellant's counsel asked but later withdrew the question whether the day before Stover had told him (appellant's counsel) Ballard would testify "but maybe not to my liking." Thereafter attorney Stover was excused, and appellant's counsel stated:

"Your Honor, we will put on no more evidence at this time, but as to claiming surprise and the right for any witness claiming the 5th, we're saying that applies, if it comes unexpectedly, and we are asking at this time for a ruling on surprise based upon the evidence we have heard so far, solely on that evidence and not anything that was maybe discussed off the record."

After discussing the claim of surprise, the court stated:

"... You haven't expressed any testimony that would lead me to feel that you would be surprised. Therefore, I'll overrule whatever surprise you may have in mind. The witness didn't testify ... refused to testify under the advise of Counsel.

"MR. PANDAK: Thank you, Your Honor."

As can be seen, appellant never secured a ruling on placing Ballard on the stand in the presence of the jury. He secured an adverse ruling on the ground of surprise which is part of the predicate for impeaching one's own witness before the trier of facts, ² but not a necessary part of the predicate for the contention now urged on appeal. Appellant did not clearly articulate to the trial court his present contention that under the circumstances he had the right to call a co-defendant as a witness to testify before the jury that he (co-defendant) had claimed his privilege against self-incrimination and to explain his reason for so claiming it. Appellant has preserved nothing for review.

If it can be argued that appellant did preserve his contention for review, this court has repeatedly held that a defendant has no right to have a witness assert or invoke his Fifth Amendment privilege against self-incrimination in the presence of the jury. Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977).

In Mendoza, supra, at p. 450, this court wrote:

"In Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974), we reiterated the general rule that when a witness, other than the accused, declines to testify on the ground that his answers would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or to the accused. The rationale is that in refusing to answer a question the witness is exercising a personal constitutional right which should neither help nor harm any third person. Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972). In Rodriguez, we held it was not error for the trial court to refuse appellant's motion to have witnesses invoke the Fifth Amendment in the presence of the jury.

"The record in the instant...