# Vaughn v. State > Texas Court of Appeals, 1st District (Houston) · December 15, 1994 · 888 S.W.2d 62 URL: https://www.frixlaw.com/law-library/cases/9640000 ## Case - **Full name:** Brenda Cantrell VAUGHN, Appellant, v. the STATE of Texas, Appellee - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** December 15, 1994 - **Citations:** 888 S.W.2d 62; 1994 WL 468305 - **Precedential status:** Published - **Opinion:** Concurring in part by Oliver-Parrott - **Judges:** Oliver-Parrott, Hedges, Andell - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9640000 ## Opinion text OLIVER-PARROTT, Chief Justice, concurring and dissenting. I concur in the result of appellant’s eleventh point of error and dissent from the majority’s holding on appellant’s point of error eight. In point of error 11, appellant asserts that the trial court erred by allowing the State to prove that appellant and her codefendant were lesbians. The majority finds no error. I write to stress the unique reasons why the trial court in this particular case did not abuse its discretion in allowing this evidence of an appellant’s private sexual life. In a case where the defendant’s sexuality is unrelated to the offense, the judge should presume that evidence of the defendant’s sexuality is irrelevant and not admissible. Evidence of a person’s sexual orientation can never be properly used to undermine that person’s credibility as a witness. However, in this case, that evidence served another purpose: it showed a relationship between the defendant and a witness for the defense. I agree with the majority that evidence of the relationship between the defendant and a defense witness or codefendants testifying on behalf of each other is relevant to show bias. That such evidence is relevant is not to say that is always admissible. Admissibility depends on the trial judge’s balancing of the probative value and the prejudice of the evidence as provided in Rule 403 of the Rules of Criminal Evidence. Tex.R.CRIM.Evid. 403. 1 In this case, the judge’s balancing was not an abuse of discretion for several reasons. *76 First, the prosecutor chose the words to describe the relationship very carefully. The prosecutor did not question appellant’s code-fendant concerning any specific acts or conduct, but limited his questions to their relationship only. 2 Second, the discussion as to the wording of the question was conducted outside the presence of the jury. Third, the probative value of the evidence was great relative to the other evidence of bias introduced up to that point. The only evidence the jury had concerning the relationship between the codefendants was that they were friends and shared a house. The jury could reasonably infer much more bias from someone with whom the defendant is romantically involved than the defendant’s roommate. Had either counsel first questioned appellant’s codefendant in more detail to show that they were very close personal friends and cared very deeply for each other, the prosecution’s evidence that they were romantically involved would not have had nearly as much probative value. Although I do not find the judge abused his discretion by admitting the particular question and answer complained about on appeal, the prosecutor’s jury argument deserves comment. In his closing argument, the prosecutor referred to appellant and her codefendant as “sexual deviant[s].” This statement was not objected to or appealed. It was, however, inappropriate and unnecessary. A person’s private sexual choices should not be used to question credibility or enhance punishment. Because of the fear and prejudice some people have against gays and lesbians, evidence that establishes this type of relationship should be excluded unless it is somehow connected to the specific offense or, under the circumstances, is extremely probative. In her eighth point of error, appellant contends that it was error to allow the prosecutor to ask her during punishment to admit guilt and when she refused, use it against her to argue for a more severe punishment. I agree. Even though her trial counsel did not object to the questions and argument, I feel this is fundamental error requiring reversal. Appellant pleaded not guilty and testified at guilt-innocence on her behalf. After the jury verdict, she again testified during the punishment phase. The prosecutor asked her if she would now admit her crime, and she refused. The prosecutor then used her lack of confession to argue for harsher punishment. I have two serious concerns with allowing this type of activity. First, it interferes with the right against self-inerimination. 3 Second, it hinders the right to appeal a conviction. During the punishment stage, the defendant is not entitled to many of the procedural safeguards that are given at guilt-innocence. The fifth amendment, however, is still guaranteed. Brown v. State, 617 S.W.2d 234, 237 (Tex.Crim.App.1981). Simply, the fifth amendment applies just as much during punishment as during guilt-innocence. Estelle v. Smith, 461 U.S. 464 , 463-64, 101 S.Ct. 1866, 1873 , 68 L.Ed.2d 369 (1981) (referring specifically to the Texas bifurcated trial system); Stewart v. State, 666 S.W.2d 548, 549 (Tex.App.—Dallas 1984, pet. ref'd). The fifth amendment right not to testify includes as a necessary corollary the right to testify. Estelle, 451 U.S. at 467-68 , 101 S.Ct. at 1875 ; Brown, 617 S.W.2d at 236 . Surely this right allows the defendant to plead not guilty and insist on innocence until the bitter end if necessary. Fifth amendment rights must be freely exercised, unrestrained by government coercion. Estelle, 451 U.S. at *77 467-68 , 101 S.Ct. at 1875 . Although the defendant may waive fifth amendment rights, “governmental action that inhibits unfettered exercise of the privilege is prohibited.” Stewart, 666 S.W.2d at 549 (emphasis added). Conduct like the prosecutor’s in this case undermines the “unfettered exercise” of fifth amendment rights. The prosecutor is essentially forcing the defendant to either admit guilt and commit perjury or be faced with a stififer punishment. This violates the fifth amendment. United States v. Rodriguez, 498 F.2d 302, 312 (5th Cir.1974); Thomas v. United States, 368 F.2d 941, 945 (5th Cir.1966). 4 The defendant’s fifth amendment rights cannot be bargained away for the price of lesser punishment. Rodriguez, 498 F.2d at 312 . That amounts to an ultimatum that cannot be condoned because it constitutes “coercion as a matter of law.” Thomas, 368 F.2d at 945 (quoting United States v. Tateo, 214 F.Supp. 560, 567 (S.D.N.Y.1963)). Under the fifth amendment, a defendant’s refusal to confess guilt is not a legitimate factor to consider for purposes of punishment. Laca, 499 F.2d at 927. To put it another way, a defendant cannot be punished for exercising the “constitutional right to stand trial rather than plead guilty.” Baker v. United States, 412 F.2d 1069, 1073 (5th Cir.1969), cert. denied, 396 U.S. 1018 , 90 S.Ct. 583 , 24 L.Ed.2d 509 (1970). Allowing the prosecutor to place the defendant in this dilemma guarantees the risk of harsher punishment. If the defendant refuses to admit guilt, the prosecutor can use that to argue that the defendant deserves stiffer punishment — exactly what happened in the present ease. If the defendant confesses on the stand at punishment, the defendant has committed perjury and is subject to prosecution for that. Furthermore, the United States Supreme Court has ruled that the defendant’s willingness to commit perjury is a legitimate factor to consider in assessing punishment. United States v. Grayson, 438 U.S. 41, 50-52 , 98 S.Ct. 2610, 2616 , 57 L.Ed.2d 582 (1978). The defendant is in a cateh-22 5 with no way out, other than not testifying. The defendant’s choice not to testify must be made voluntarily, not induced by such pressure. Estelle, 451 U.S. at 467-68 , 101 S.Ct. at 1875 ; Stewart, 666 S.W.2d at 549 . The second major concern I have with the prosecutor’s conduct is the impact on the defendant’s right to appeal. Once a defendant is found guilty, the defendant has not been “finally and irrevocably adjudged guilty.” Thomas, 368 F.2d at 945 . The defendant still has many options, including “motion for new trial (including the opportunity to discover new evidence), appeal, ... and collateral attack.” Id. When a defendant admits guilt in the punishment phase, the defendant waives any challenge to the sufficiency of the evidence. Mata v. State, 867 S.W.2d 798, 807 (Tex.App.—El Paso 1993, no pet. history); Rodriguez v. State, 691 S.W.2d 77, 80 (Tex.App.—Houston [1st Dist.] 1985, pet. ref'd). Justice Teague stated in a concurring opinion that admitting guilt in punishment has a negative impact on “any error that may have occurred during the guilt stage of the trial.” Gordon v. State, 651 S.W.2d 793, 793 (Tex.Crim.App.1983) (Teague, J., concurring) (emphasis added). The right to appeal is “now an integral part of the trial system for finally adjudicating the guilt or innocence of a defendant.” Thomas, 368 F.2d at 945 . The defendant does not lose the right to appeal or continue to assert innocence just because the jury *78 finds the defendant guilty. Wright, 533 F.2d at 216. The trial court should not use its punishment power to persuade the defendant to either give up the right to appeal by admitting guilt during the punishment phase or punishing the defendant for choosing to exercise constitutional rights: “[Penalizing those who choose to exercise” constitutional rights ... [is] “patently unconstitutional.” ... A court is “without right to ... put a price on appeal. A defendant’s exercise of a right of appeal must be free and unfettered.... [I]t is unfair to use the great power given to the court to determine sentence to place the defendant in the dilemma of making an unfree choice.” North Carolina v. Pearce, 395 U.S. 711, 724 , 89 S.Ct. 2072, 2080 , 23 L.Ed.2d 656 (1969) (citations omitted). Contrary to the State’s position, the fact that appellant made a motion for probation is irrelevant in this case. In Overstreet v. State, 470 S.W.2d 653, 654-55 (Tex.Crim.App.1971), the court found that the prosecutor’s comment as to the defendant’s lack of remorse was not necessarily reversible error when probation had been requested. However, Overstreet specifically found that the statement complained about would not have been construed by the jury as a comment on the defendant’s failure to testify. In the present case, the prosecutor’s comment was quite direct. As the Court of Criminal Appeals stated in Overstreet : [A] defendant in a criminal case under our laws has the right to enter a plea of not guilty and to file a motion for probation, and [exercising] ... those rights should not be used against [the defendant].... [The defendant] need not plead guilty in order to be entitled to probation. 470 S.W.2d at 655 . While the State may have more leeway in language when the defendant has requested probation, the State may not force a defendant who has pleaded not guilty and testified in the both phases of trial to face the choice of either committing perjury and losing the right to appeal or facing harsher punishment. The majority finds that being asked to admit guilt when testifying at the punishment phase is “no more than the usual risk a defendant assumes” when taking the stand. The State also makes this same argument, citing McGautha v. California, 402 U.S. 183, 214-17 , 91 S.Ct. 1454, 1471-72 , 28 L.Ed.2d 711 (1971). However, that case does not apply to the case at hand. Because Texas jurisprudence is unique with its bifurcated trial system, the Court of Criminal Appeals has found that cases from other jurisdictions are instructive and informative on fifth amendment issues, but sometimes inadequate to resolve questions unique to Texas. Brown, 617 S.W.2d at 235-36 . McGautha is one of those cases. The McGautha Court was reviewing a case from a state that did not have a bifurcated trial system. McGautha, 402 U.S. at 216 , 91 S.Ct. at 1472 . In a unitary system, the defendant does not have the option of testifying at punishment or during guilt-innocence or both. The State, therefore, has no mechanism to coerce the defendant to admit guilt and commit perjury after the jury has found the defendant guilty. In conclusion, the majority’s holding allows prosecutors to use the Texas system to inhibit the defendant’s exercise of constitutional rights. It is contrary to the law and to the spirit of the law. I would sustain appellant’s eighth point of error and reverse this case for a new trial on punishment only. . "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice....” Tex. R.Crim.Evxd. 403 . The actual questions and answers admitted before the jury were as follows: Q: (by McDougal): Miss Puliafico, I believe the question was whether you enjoy a special relationship with Miss Vaughn. Let me ask it this way: On July 15, 1991, were you romantically involved with Ms. Vaughn? A: (Ms. Vaughn): Yes Q: Wouldn’t it be a fair characterization to say that when two people are in love with each other, you care deeply for someone, that you will do whatever you can to protect them and help them? A: I would say that's a fair characterization. . This right is found both in the Texas Constitution and the United States Constitution. U.S. Const, amend. V; Tex. Const, art. I, § 10 (as applied to the states through the fourteenth amendment). Unless otherwise indicated, both will be referred to collectively as the “fifth amendment.” . The majority refuses to consider the Thomas line of cases, arguing that Thomas was based on the Fifth Circuit’s exercise of its supervisory power over federal district courts instead of the fifth amendment. However, the court did not premise its holding solely on supervisory control, stating that supervisory power was “an independent basis of decision.” Thomas, 368 F.2d at 946 . Also, the court later stated that they used their supervisory powers because the conduct at issue violated the constitutional rights of the defendants. United States v. Wright, 533 F.2d 214, 216 (5th Cir.1976). Other cases refer only to the fifth amendment concerns without ever mentioning supervisory power. See United States v. Laca, 499 F.2d 922, 927-28 (5th Cir.1974); Rodriguez, 498 F.2d at 312-13 (5th Cir.1974.) It only makes sense that the fifth amendment is an independent basis of decision; a federal appeals court can use its supervisory power only if the lower court has done something objectionable. . Catch-22 is a situation where alternatives can cancel each other out, leaving no means of settling a dilemma. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9640000. Public record. Not legal advice.