In re Medina

• Decision Date: 04 November 2015
• Docket Number: NO. WR–75,835–02,WR–75,835–02
• Citation: In re Medina, 475 S.W.3d 291 (Tex. Crim. App. 2015)
• Parties: In re Hector Rolando Medina, Relator
• Court: Texas Court of Criminal Appeals

475 S.W.3d 291

In re Hector Rolando Medina, Relator

NO. WR–75,835–02

Court of Criminal Appeals of Texas.

Filed: November 4, 2015

Brad Levenson and Robert Romig, Austin, for Hector Rolando Medina.

Lisa Braxton Smith, Dallas, for State of Texas.

NEWELL, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, JOHNSON, KEASLER, HERVEY, RICHARDSON, and YEARY, JJ., joined.

"No person ... shall be compelled in any criminal case to be a witness against himself ..."U.S. Const. Amend. V.

Under the plain text of the Fifth Amendment to the United States Constitution, a defendant has a clear right to prevent the State from forcing him to testify at his trial or at sentencing.But what happens when the defendant's trial is over, his conviction is final, and his testimony would no longer subject him to criminal liability?This was the question presented to the trial court in this case.Is the State, in a post-conviction evidentiary hearing on a writ of habeas corpus, clearly prohibited from calling the writ applicant to testify—under a grant of both use and derivative-use immunity—about whether he was aware of and agreed to trial counsel's strategy at the punishment stage of his capital-murder trial?If this Court were considering the question in the first instance, the answer might very well be "no."But because this case comes before us as a writ of prohibition, we are not asked to decide the precise scope of the Fifth Amendment's protection.¹

Instead, we are asked to decide whether the trial court made a judicial decision or a ministerial one.More specifically, we must determine whether the law on this issue is so clear that the trial court had no choice but to prohibit the State from calling relator to the stand.Examining the relevant case law regarding the scope of the Fifth Amendment from the United States Supreme Court and this Court reveals arguments to support the positions of both relator and the State.Consequently, we cannot say that the trial court had a ministerial duty to prohibit the State from calling relator to testify.Therefore, we must deny the writ of prohibition.

Factual & Procedural Background

Relator was convicted of capital murder for killing his two children, Javier and Diana Medina.During the punishment phase of the trial, one juror was allowed to be absent for two days to attend his daughter's labor induction, while another broke her arm in the court parking lot.The trial court indicated that it would grant a continuance to accommodate these juror absences, but relator's lead trial counsel objected on the ground that several out-of-country witnesses would be unavailable if the trial were postponed for a week.On September 16, 2008, the trial court granted a continuance and denied lead trial counsel's motion for mistrial.The trial court released the jurors without setting a return date and denied lead trial counsel's subsequent motion to withdraw as counsel.

The trial court later set October 27, 2008 as the date to resume the punishment phase of the trial.Relator's lead trial counsel filed a motion for continuance on October 20, 2008 again alleging that several defense witnesses would be unavailable for trial.The trial court denied the motion for continuance.Lead trial counsel then filed a motion to withdraw alleging that the trial court's actions were making her render ineffective assistance of counsel.She indicated to the trial court that she did not intend to present any evidence on relator's behalf at the punishment phase of his death-penalty trial.Lead trial counsel also filed motions to recusethe trial court as well as the Dallas District Attorney's Office, and she filed a final motion for continuance.The trial court denied all these motions.

Thereafter, lead trial counsel refused to participate in relator's trial.The trial court warned relator's lead counsel that refusing to participate would result in the trial court holding her in contempt of court.The trial court subsequently held relator's lead counsel in contempt and took her into custody.The trial court released her later that day, prior to the jury-charge conference and punishment argument.The jury answered the special issues pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set punishment at death.The State subsequently filed a grievance against lead trial counsel with the State Bar of Texas based upon trial counsel's failure to inform or consult with relator regarding participation in the punishment phase of the trial.

Relator's conviction was affirmed on direct appeal.SeeMedina v. State, No. AP–76,036, 2011 WL 378785(Tex.Crim.App.Jan. 12, 2011)(not designated for publication).On direct appeal, we rejected relator's claim that he had received ineffective assistance of counsel during the punishment phase of his trial because the claim was not factually developed.Id. at *31.The case became final on March 21, 2011 when this Court issued its mandate.

Relator's first writ attorney filed an application for writ of habeas corpus that was only four pages long and merely stated factual and legal conclusions.Ex parte Medina,361 S.W.3d 633, 635(Tex Crim.App.2011).This Court determined that writ counsel had intentionally filed insufficient pleadings in order to force the Court to readdress its pleading requirements.

Id.Writ counsel acknowledged that he had frequently discussed his plan with relator, but proceeded even though relator was not happy about it.Id. at 636.According to writ counsel, the strategy was in relator's best interest and in the best interest of similarly situated death-row inmates because pleading evidence in briefing in the initial application for a writ of habeas corpus promotes disposition without evidentiary hearings.Id.This Court held that relator failed to timely file a cognizable writ application, thereby authorizing him to file an initial application for writ of habeas corpus.Id. at 643.We then appointed the Office of Capital Writs to represent relator.Id.

The Office of Capital Writs filed an initial writ of habeas corpus application in the convicting court on relator's behalf on June 5, 2012.Counsel raised several Cronic –and Strickland –based claims of ineffective assistance predicated on trial counsel's abandonment of the adversarial testing of the State's punishment case.The habeas judge issued an order designating those claims for further development and held a hearing on August 8, 2013.Following the hearing, the State noticed its intent to call relator as a witness at the evidentiary hearing scheduled for January, citing this Court's opinion in Cannon v. State,252 S.W.3d 342(Tex.Crim.App.2008).²

In documents filed with the habeas judge, relator objected to being forcibly called as a witness against his own interests.Relator argued that (1) being forced to testify violated his rights under the Fifth Amendment;(2) his testimony was not relevant to whether he received ineffective assistance of counsel; and (3)this Court's opinion in Cannon does not require him to testify at the upcoming hearing.Relator also argued that the State had no good-faith basis to question him given the State's assertion in the state-bar grievance filed against trial counsel in June 2009 that trial counsel failed to inform or consult with relator about her decision not to participate in the punishment phase of trial.The habeas judge heard argument on relator's objection on the afternoon of January 13, 2014.

The State admitted during the January hearing that calling a defendant to the stand was "a really novel area" and that "this is basically unprecedented.The only precedent we have is Cannon ... from the CCA."The State explained that, in every case in which a defendant raises an IAC claim, the State is permitted to call the defendant to the stand for questioning.³

However, the State indicated that the trial court did not have "much of anything to hold over [relator's] head" if relator chose not to testify after being called to the stand.The State sought only the ability to draw adverse inferences from relator's refusal to answer particular questions regarding whether relator knowingly acquiesced to trial counsel's strategy and whether that constituted a waiver of effective assistance of counsel.

The habeas judge seemed to believe that a defendant could not waive his right to the effective assistance of counsel.However, he indicated that the State would be permitted to examine relator if it offered him use and derivative-use immunity, which the State promptly did.The habeas court entered a written order granting relator both use and derivative-use immunity.This grant of immunity prevents the State from using both relator's testimony and any information gained from that testimony in a future prosecution or any proceeding other than this hearing on the post-conviction writ application.SeeKastigar v. United States,406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212(1972)("We hold that such immunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of the privilege.").The habeas judge also indicated that he would not allow the State to question relator about "anything and everything," as he would entertain objections to questions that fell outside the scope of relator's claims of relief.The State responded by agreeing that it had no intention of questioning relator about the facts of the offense itself.

When the State called relator to the stand, habeas counsel objected and filed the application for writ of prohibition that is currently before this Court.This Court stayed the proceedings with regard to relator's forced testimony only and invited responses from the State and the habeas judge.In re Medina, No. WR–75,835–02, 2014 WL 260176(Tex.Crim.App.Jan. 15, 2014)(not designated for publication).This Court received a...