Nicholas Crosson v. the State of Texas

• Decision Date: 21 December 2000
• Citation: 36 S.W.3d 642
• Parties: <!--36 S.W.3d 642 (Tex.App.-Houston 2000) NICHOLAS CROSSON, Appellant, v. THE STATE OF TEXAS, Appellee NO. 01-98-00297-CR In The Court of Appeals For The First District of Texas
• Court: Texas Court of Appeals

Page 642

36 S.W.3d 642 (Tex.App.-Houston [1st Dist.] 2000)

NICHOLAS CROSSON, Appellant v THE STATE OF TEXAS, Appellee

NO. 01-98-00297-CR

In The Court of Appeals For The First District of Texas

December 21, 2000

On Appeal from the 183rd District Court Harris County, Texas Trial Court Cause No. 750,574

Panel consists of Justices Cohen, Nuchia, and Smith.^*

ORDER ON CONTINUING ABATEMENT

Cohen, Justice.

A jury found appellant guilty of possession with intent to deliver at least 400 grams of cocaine. The trial judge assessed punishment at 15 years in prison. We abate the appeal and remand for a new suppression hearing.

Suppression Motion Hearing

In a sole point of error, appellant contends the trial judge erred by requiring him to incriminate himself by answering a question outside the scope of a motion to suppress hearing.

1. The Error

The State's witness, Deputy Foose, testified that (1) he stopped appellant's car for traffic offenses; (2) as the deputy approached, he saw a back-seat passenger (not appellant) shoving an open, clear bag full of cash between his feet; (3) appellant, the driver, was very nervous; (4) he consented to a search; (4) the deputy found cocaine in the trunk; and (5) he then arrested appellant.

Appellant was then called to testify "for the limited purposes of this hearing." He admitted that he was nervous and consented to the search, but only after being handcuffed. The State then cross-examined appellant:

State: Mr. Crosson, did you know there was a kilo of cocaine in your trunk?

Counsel: I object. That's outside the scope of this hearing. This is for the motion to suppress and probable cause. It's not for his knowledge on the case.

Court: Overruled.

Counsel: Well, then, Your Honor, I have to withdraw his testimony. We'll withdraw what he has to say.

Court: You can't withdraw it.

Counsel: Well, Your Honor, then I instruct him he needs to assert his privilege to--

Court: You go into details, I think she is entitled to go into the details.

Counsel: Well, Your Honor, I think that's outside the scope of the hearing for the probable cause of the stop, of the arrest. That's what I called him for, solely for the purpose of this hearing.

Court: I understand that's solely for the purpose of this hearing.

Counsel: But I have to instruct him to not answer the question.

Court: Well, you go ahead and instruct him, but I'm going to allow the question.

Counsel: Yes, sir.

State: And the question is, Mr. Crosson, did you know there was a kilo of cocaine in the trunk of your car on April 17th, 1997, when the police officer pulled you over?

Counsel: At this time, Your Honor, I would instruct my client to not answer that question.

Court: On what grounds?

Counsel: On his Fifth Amendment privilege. He's been called to testify on the motion to suppress solely as to the probable cause of the stop.

Court: Yes, but the Court believes that you're not dictating the terms of cross-examination, that you're claiming he didn't know anything.

Counsel: No, sir, I didn't claim that. I have not claimed that. But that's nothing--I have not said that he did not know.

Court: Well, you have gone into the details of what was asked.

Counsel: Yes, sir, I did.

Court: And yet you don't want the State to ask him what he said.

Counsel: She can ask him what he said: "Did you say that?" What she cannot ask him, "Did you know that there was cocaine in there? If she wants to say, "Did you tell the officer you didn't know?" that is proper cross-examination, but it's improper for the purposes of this hearing to allow her to ask him did he know there was cocaine in the car, because that's not what I asked him. I had asked him what was said. That's all I asked.

Court: Well, I am staying with my ruling.

Counsel: And I have instructed you not to answer the question, Mr. Crosson.

Court: Any other questions?

State: Your Honor--

Counsel: But I am willing to withdraw his testimony, withdraw him as a witness, if that's the Court's ruling.

Court: That's my ruling.

Counsel: Then I will withdraw him as a witness and withdraw from consideration the testimony he's given.

Court: You are going to withdraw the motion?

Counsel: No, sir, but I will withdraw Mr. Crosson as a witness or I guess his testimony not to be considered.

State: So does that mean there's no evidence presented on the motion?

Court: Right, except your officer's testimony.

State: So he's put him up there and directed testimony but he's withdrawing it?

Court: But he's striking his testimony now.

Counsel: Yes, sir.

State: Judge, I object.

Court: What do you want me to do?

State: I have never been in this position in ten years. My understanding of the rules are if a witness takes the stand and testifies to a certain situation, that he's open for cross-examination for all purposes.

Court: What do you want me to do?

State: Instruct him to answer the question.

Court: And then if he won't, if he wants to stand on the Fifth Amendment?

State: Well, I guess we're in a situation where he's contemptible.

Court: That may be satisfaction to you, but that doesn't get my trial going.

Counsel: And I will withdraw his testimony from consideration in the motion to suppress, Your Honor, given the Court's ruling. I will withdraw it. You can strike it.

Court: And I will allow him to do that. Do you want to follow your lawyer's advice?

Appellant: Yes, Your Honor.

Court: The Court grants the motion to withdraw the testimony of the defendant.

The judge's ruling violated appellant's Fifth Amendment privilege against self-incrimination. It also required appellant to waive his Fifth Amendment right against self-incrimination in order to assert his Fourth Amendment right against illegal search and seizure. That was constitutional error because a defendant cannot be made to give up one constitutional right in order to assert another. He is entitled to all of them. See Simmons v. U.S., 390 U.S. 377, 393-94; 88 S. Ct. 967, 976 (1968); Masters v. State, 545 S.W.2d 180, 181 (Tex. Crim. App. 1977) (holding trial judge erred in denying appellant opportunity to give limited testimony supporting suppression motion without subjecting himself to unlimited cross-examination by State); McCain v. State, 995 S.W.2d 229, 235-36 (Tex. App.--Houston [14th Dist.] 1999, pet. ref'd, untimely filed), disagreed with on other grounds, Webber v. State, 29 S.W.3d 226, 232-34 (Tex. App.--Houston [14th Dist.] 2000, pet. filed Nov. 1, 2000); see also Tex. R. Evid. 104(d) (accused testifying on a preliminary matter does not become subject to cross-examination on other issues in the case); Brumfield v. State, 445 S.W.2d 732, 737 (Tex. Crim. App. 1969) (op. on reh'g) (in dicta, "Thus, where the defendant has a right to an evidentiary hearing on a motion to suppress, he may take the stand and limit his waiver of his privilege against self-incrimination to that hearing."). Cf. Johnson v. State, 803 S.W.2d 272, 284-85 (Tex. Crim. App. 1990) (holding cross-examination of wife, who retained spousal privilege for trial, at suppression hearing was limited to suppression matters only), overruled on other grounds, Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991).

Thus, appellant was forced to choose between (1) waiving his right against self-incrimination; (2) asserting his right against self-incrimination, thus risking being held in contempt by the judge who, upon conviction, would assess his punishment; or (3) withdrawing his testimony in order to avoid this dilemma.

2. The Harm

The State concedes that any error was constitutional. See Tex. R. App. P. 44.2(a); McCain, 995 S.W.2d at 236. The burden under rule 44.2(a) is on the State to show beyond a reasonable doubt that the error made no contribution to the verdict. Williams v. State, 958 S.W.2d 186, 194 n.9 (Tex. Crim. App. 1997); Merritt v. State, 982 S.W.2d 634, 636 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd, untimely filed).

The State asks us to consider appellant's suppression-hearing testimony--in which it claims appellant did not contest the basis for the initial stop--to find the error harmless. We may not do so. First, appellant did not admit to the violation, but merely recited what the officer had told him the reason for the stop was. Second, appellant's testimony was incomplete. Third, appellant was forced to withdraw all of his suppression testimony because of the judge's ruling. Thus, it was no longer in evidence. See, e.g., Hochman v. State, 170 S.W.2d 756, 761 (Tex. Crim. App. 1943) (op. on reh'g) (holding jury cannot consider evidence withdrawn by trial judge); see also Elizalde v. State, 507 S.W.2d 749, 751-52 (Tex. Crim. App. 1974) (implying that exhibit withdrawn at punishment hearing before judge could not be considered as evidence for appellate review), overruled on other grounds, Bullard v. State, 533 S.W.2d 812, 816 (Tex. Crim. App. 1976). Accordingly, we may not consider it when assessing harm.

We address one further matter, although it has not been raised by the State. Immediately after appellant withdrew his testimony, he tried to call a second officer (Officer Palacios), but the trial judge refused, wanting instead to "carry it with the trial." Appellant's counsel consented:

That's fine. I understand. When [Officer Palacios] testifies, then I will approach about having to consider what his answers were. We can carry the motion to suppress with the trial. After he testifies, I can ask the Court's ruling on the motion to suppress. [The DA] can order her proof in such a way that once the other officer testifies, not to offer the cocaine until the other officer testifies, and I will ask for a ruling on my motion to suppress.

Everyone agreed to this procedure. Deputy Foose testified at trial without objection that he found cocaine and that his dog had "alerted" to it. Appellant did not request a suppression ruling until later, when the cocaine was offered during Officer Palacios's testimony....