# Franklin v. State > Court of Criminal Appeals of Texas · October 24, 1979 · 606 S.W.2d 818 URL: https://www.frixlaw.com/law-library/cases/9674707 ## Case - **Full name:** Donald Gene FRANKLIN, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** October 24, 1979 - **Citations:** 606 S.W.2d 818; 1979 Tex. Crim. App. LEXIS 1687 - **Precedential status:** Published - **Opinion:** On rehearing by Odom - **Judges:** Phillips, Dally, Davis, Odom, Onion, Roberts, Clinton, Douglas - **Cited by:** 71 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/9674707 ## How later opinions describe it (automated extraction) - holding jury could reasonably conclude defendant had obtained victim’s property without her effective 12 consent and with intent to deprive her of property, even though evidence showed defendant had discarded property in trash and partially burned it to destroy it ## Opinion text OPINION ON APPELLANT’S MOTION FOR REHEARING ODOM, Judge. This is an appeal from a conviction for capital murder in which the punishment, following the jury’s affirmative answers to questions submitted under Art. 37.071, V.A. C.C.P., was fixed at death. Trial was held in Nueces County on a change of venue from Bexar County. Appellant’s motion for leave to file motion for rehearing was granted in this case so that this Court could reconsider his 19th, 20th and 21st grounds of error, in which complaint is raised to the trial court’s rulings allowing the state to cross-examine him regarding his failure to testify at pre *846 trial hearings about the exculpatory matters to which he testified at trial. The grounds of error assert that this cross-examination improperly showed his failure to testify and used against him his post-arrest and pretrial silence and the exercise of his rights under the Fifth Amendment to the United States Constitution. This is the cross-examination to which the grounds of error are directed, together with the objections and rulings: “Q. Isn’t it true that you have been under oath in a Courtroom before Judge Barlow in previous proceedings and you never told us one mumbling word about that tale you just told us? “MR. PRIEST: We will object to that question. As your Honor knows we were then engaged in pretrial matters in which these matters were not relevant and we object to the question on that basis. “THE COURT: Well, I will sustain the objection to it. “MR. CONAWAY: I think I am entitled to show that he has had opportunity under oath to offer that tale before and he did not do so, Judge. “MR. PRIEST: We object, Your Hon- or. “MR. CONAWAY: At a time whenever he waived his Fifth Amendment rights and took the stand. “THE COURT: The problem is- “MR. CONAWAY: I recognize his problem. “MR. PRIEST: Object to the last statement of Counsel. “THE COURT: The problem is this, I try cases one after another. I have Court records of what occurs in Court and, the truth is, I don’t remember all the time, what the issues were or what was involved. “MR. CONAWAY: My question is does he remember it, Judge. Do you remember taking the witness stand in San Antonio, Texas? “MR. PRIEST: He is repeating the very question we objected to and we request a ruling. “THE COURT: What is the question? QUESTIONS BY MR. CONAWAY: “Q. Do you remember taking the witness stand, Donald Franklin, in San Antonio, Texas, before this same Judge, James E. Barlow; me asking you questions, Mr. Priest being present, this same Court Reporter being present in the Courtroom and me asking you questions about what happened out there at that house and did you say one word about Eugene Tealer or anybody being in that house or- “MR. PRIEST: Don’t say a word until the Judge rules. It is our position he is making undue comments on the exercise of the Fifth Amendment privilege. We ask the Court to-first, we object to the question. “THE COURT: All right. It is overruled. “MR. PRIEST: Please note our exception. QUESTIONS BY MR. CONAWAY: “Q. Did you say one mumbling word about Eugene Tealer swapped pants with you, Eugene Tealer came and set fire to that poor woman’s purse, did you say one word about never having seen that knife before, did you say one word about loaning that car to Eugene Tealer in open Court under oath before this same Judge in San Antonio, Texas? Did you say one word at all? “MR. PRIEST: If it please the Court, he was not asked any of those questions. “MR. CONAWAY: That wasn’t the question. Did you-you could have told that tale down there and you chose not to, didn’t you? “MR. TINKER: Your Honor, there was a hearing in this Court for a specific purpose that had nothing to do with what he may or may not have said. The Court, in my opinion, is committing error in allowing this kind of interrogation to go on. The first reason you have pretrial proceedings is because they are supposed to be done prior to getting into anything *847 in the presence of the jury. This witness was not asked this question. In fact, this Court specifically would not permit that kind of question of this man. “MR. CONAWAY: He wasn’t there. “MR. TINKER: I have read the record, Your Honor. It is here and I will offer it to the Court. “THE COURT: We are no longer in pretrial, Counsel. The objection is overruled. “MR. TINKER: Let me make a tender of the Court’s ruling at that time. “THE COURT: The point is, in pretrial you are bound by certain rules that do not necessarily apply before the jury. “MR. TINKER: That’s right. And at pretrial you ruled you would not permit him to answer questions. Now, he is trying to make it look like this man tried to disquise (sic) or hide something because you ruled that he could not testify about it. Now-and I offer, Your Honor, the Court Reporter’s notes from that proceedings. It was your ruling that prevented him from testifying. “THE COURT: All right. “MR. TINKER: Your Honor, also, we request a mistrial at this time because of what has already occurred and I reurge the Court to look at the Statement of Facts and see the Court’s ruling at that time, which did not permit him to testify to these facts. “THE COURT: Objection overruled. Motion for mistrial overruled. Go ahead, Counsel. QUESTIONS BY MR. CONAWAY: “Q. Now, then, my question, again, I don’t think you ever did answer it, was did you ever tell-you had the opportunity sitting on the witness stand in a different Courtroom, same Judge, same defense lawyer,-at least well, two of them, Mr. Williams and Mr. Priest were there, I was there, Judge Barlow was there and you were certainly there and we were talking about what happened out there at your house on the morning when you were arrested. Do you remember that? “A. Yes, sir. “Q. All right. And I was asking you, specifically, questions about what happened out there at the house on the morning you were arrested. Do you remember that? “A. Yes, sir. I do. “Q. Now then, do you remember telling me anything about, T loaned my pants to Eugene Tealer?’ Did you tell me anything like that? “A. I only answered the questions that you asked me. I did tell them at the time that they arrested me, the same thing I have just finished stating.” There were three occasions at which appellant gave testimony at pretrial hearings. On the first occasion appellant testified regarding his inability to appear as a witness at that time due to his temporarily impaired mental alertness resulting from medication he had been given the day before. When called to testify at that time the following occurred: “[Defense counsel]: I would like to make some proof on the question of whether he is competent. “THE COURT: All right. Are you ready? “[Defense]: I would like to put him on the stand for that purpose and I would like it clearly understood he is being put on the stand for that purpose and no other. “THE COURT: All right.” Later during that hearing the trial court sustained a defense objection to a question put to appellant by the prosecutor with the comment, “he took the stand for limited purpose and up until two or three years ago you couldn’t do that but, the Court holds you now can take the stand for a definite purpose.” The second pretrial hearing at which appellant testified was on his motion to suppress the fruits of a search and seizure *848 because he did not voluntarily and knowingly sign the consent to search form pursuant to which the search was conducted. When appellant was called at that hearing the following occurred: “[Defense counsel]: Your Honor, I want to call the defendant to the stand for the purposes of the motion only. But, before I do I would reurge to the Court the motion we have previously filed to restrict the cross examination of the dé-fendant by the State to matters brought out on direct having bearing on the motion to suppress and nothing else. “THE COURT: I think the case law holds if he takes the stand he can take the stand on the motion to suppress for limited purposes relating to the motion itself. So, I assume that is what you are relating it to. “[Defense counsel]: That is correct, Your Honor.” During the course of this hearing the trial court sustained at least fourteen defense objections that the prosecutor’s questions on cross-examination of appellant were outside the scope of the hearing or irrelevant to the proceeding. Appellant’s third pretrial appearance as a witness came during a hearing on the admissibility of identification testimony the State intended to present at trial. When appellant was called his attorney announced, “Your Honor, again, we will call the defendant for the limited purpose of this motion and his rights to counsel [at the line-up identification] and the issues surrounding that question.” Twice during this hearing objections to state questions outside the scope of the hearing were sustained. On original submission of this case the majority reviewed a number of cases that discussed various rules allowing and prohibiting impeachment of a witness with various types of evidence obtained under various circumstances. After demonstrating that none of the United States Supreme Court opinions discussed there were precisely on point, the majority tied in its conclusion on the issue with its opening proposition on the subject. Omitting the intervening discussion, which was primarily directed to dispelling the possibility that constitutional principles were violated, the court on original submission decided the issue in this fashion: “It is a general rule of evidence that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination ... “When the appellant testified for limited purposes at the pretrial hearings the State was properly restricted in its interrogation and cross-examination of the appellant, but the appellant in those hearings was free to testify to, and had the opportunity to testify to, the same exculpatory version of the facts as he later did before the jury. We hold the trial court did not err in permitting the State to cross-examine appellant before the jury as to why he had not related his exculpatory version of the facts in the pretrial hearings.” Upon reconsideration we have decided that our original opinion was incorrect, both on state evidentiary grounds and on constitutional grounds. The general rule first quoted above allows impeachment by showing the witness’s prior silence “where such silence occurred under circumstances in which he would be expected to speak out.” (Emphasis added.) Such a rule does not authorize impeachment by showing appellant’s silence, as at the hearings here, when he “was free to testify” and “had the opportunity to testify.” Merely having the opportunity to say something does not constitute circumstances in which one would be expected to speak out. At the pretrial hearings in this case appellant expressly took the stand, with the trial court’s permission, for a limited purpose. It cannot be said *849 that testifying at a hearing conducted on issues with respect to which appellant’s trial testimony would not be relevant presents a situation with circumstances in which appellant would have been expected to speak out on the subject matter of his subsequent trial testimony. Appellant’s pretrial hearing silence on the subject was not admissible under the general rule for impeachment relied on in disposing of this issue on original submission. In this case, appellant’s silence about his exculpatory story not only was under circumstances that did not give rise to the impeachment rule discussed above; it was also grounded on an exercise of his constitutional privilege against self-incrimination. In Simmons v. United States, 390 U.S. 377, 393-4 , 88 S.Ct. 967, 976 , 19 L.Ed.2d 1247 , the Supreme Court wrote: “A defendant is ‘compelled’ to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forego a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit. When this assumption is applied to a situation in which the ‘benefit’ to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another.” Although the Court there was addressing the use of evidence given at such a hearing against a defendant at his trial on the issue of guilt, avoidance of the impermissible “tension” created when forced to choose between assertion of constitutional rights is the basis for allowing a defendant to testify for a limited purpose, such as appellant did at the pretrial hearings here, without waiving his Fifth Amendment privilege. It is clear that appellant testified at his pretrial hearings in order to assert constitutional rights regarding the lawfulness of a search and seizure of evidence to be used against him, and regarding the line-up identification procedures used in his case. His choice to take the stand for those limited purposes served to avoid the impermissible “tension” between the assertion of those rights and assertion of his privilege against self-in--crimination that Simmons prohibited. Consequently, his failure to testify at those hearings beyond their proper scope, and his failure to testify regarding the facts of the case generally, necessarily constituted an assertion of and reliance on his constitutional privilege against self-incrimination. In Doyle v. Ohio, 426 U.S. 610, 619 , 96 S.Ct. 2240, 2245, n.10 , 49 L.Ed.2d 91, n. 10 , the Court said: “After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right.” If it is impermissible to allow impeachment on a post-arrest silence that may be an exercise of one’s right to remain silent, to allow impeachment for what clearly is an exercise of the constitutional privilege against self-incrimination, as was done in this case, can be no less erroneous. Although this form of impeachment is not a comment on the failure to testify at trial, it clearly is a comment on the accused’s exercise of his constitutional privilege against self-incrimination. See, Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 ; Amendments V and XIV, United States Constitution; Article 1, Section 10, Texas Constitution. *850 In addition to the state and federal grounds for reversal discussed above, there is another state ground that prohibited comment on appellant’s failure to testify at the pretrial hearings about the exculpatory matters to which he testified at trial. Article 38.08, V.A.C.C.P., provides: “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.” The predecessor to this article (Art. 790, C.C.P.1925) has been held applicable to pretrial hearings. Scroggins v. State, 97 Tex.Cr.R. 573 , 263 S.W. 303 . The purpose of the statute is to provide express protection to defendants when they invoke their constitutional rights against self-incrimination. As stated previously in this opinion, appellant’s silence about his exculpatory story was grounded on his exercise of those constitutional rights. Accordingly, we hold that Article 38.08, supra, also applies to a defendant’s silence on some matters at a pretrial hearing even when he does testify at that hearing about other matters. We hold the state’s impeachment of appellant on the basis of his failure to testify to his exculpatory story at the pretrial hearings was improper for all of the reasons set out in Part I of the dissenting opinion on original submission. Specifically, we hold that the impeachment was improper under state law because it was in violation of Art. 38.08, supra, and also because it was not authorized by the rule allowing evidence of a witness’s silence under circumstances in which he would be expected to speak out. We also hold the state’s use of that circumstance was an improper use of his pretrial silence and his exercise of his privilege against self-incrimination under the Fifth and Fourteenth Amendments to the United States Constitution, and under Article 1, Section 10 of the Texas Constitution. Accordingly, appellant’s motion for rehearing is granted, the judgment is reversed, and the cause is remanded. CLINTON, J., not participating. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674707. Public record. Not legal advice.