# 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/9674709

## 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:** Dissent by Dally
- **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/9674709

## 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

DALLY, Judge,
dissenting on appellant’s motion for rehearing.
I stoutly maintain that the majority opinion on original submission correctly decides the issue on which the court now reverses this conviction. The majority opinion on rehearing sheds no light on the problem and grossly misapplies both Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976), and Simmons v. United States, 390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968). Both of these cases have been improperly relied upon by the majority on the motion for rehearing.
The majority’s quotation from Simmons v. United States, supra, is one sentence too short. The sentence immediately following the passage quoted by the majority is:
“We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” 390 U.S. at 394 , 88 S.Ct. at 976 .
Nothing said by appellant at the pretrial hearings was admitted against him at trial. He was accorded the privilege, secured by Simmons v. United States, supra, to testify at the suppression hearings free from the “tension” between the assertion of his Fourth and Fifth Amendment rights. The question presented in this case is whether, after appellant testified to his exculpatory story, the prosecutor was entitled to impeach appellant on cross-examination by inquiring into appellant’s failure to relate the exculpatory story at the pretrial hearings. Simply stated, Simmons does not answer this question.
In Doyle v. Ohio, supra, the Supreme Court of the United States held that the use for impeachment purposes of Doyle’s silence at the time of his arrest and after he had been advised of his constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), violated the Due Process Clause of the Fourteenth Amendment. In the present case we are not concerned with the admission of evidence that appellant remained silent at the time of his arrest. Again, the question is whether, after appellant testified to an exculpatory story before the jury, it was permissible for the purpose of impeachment to cross-examine him as to why he did not relate this same story when he voluntarily testified at three pretrial hearings.
In Doyle v. Ohio, supra, the majority of the Supreme Court expressly excluded from its consideration and holding the circumstances of the instant case. Footnote six of the majority opinion reads as follows:
“Petitioners also claim constitutional error because each of them was cross-examined by the prosecutor as to why he had not told the exculpatory story at the preliminary hearing or any other time prior to the trials.... These averments of error present different considerations from those implicated by cross-examining petitioners as defendants as to their silence after receiving Miranda warnings at the time of arrest. In view of our disposition of this case we find it unnecessary to reach these additional issues.” 426 U.S. at 606 n.6, 96 S.Ct. at 2244 n.6.
Although in his dissenting opinion in Doyle v. Ohio, supra, Mr. Justice Stevens, *855 joined by two other members of the court, found troublesome the admission of testimony that Doyle failed to assert his “frame” defense at his preliminary hearing, he stated unequivocally that this evidence was admissible under the authority of Raffel v. United States, 271 U.S. 494 , 46 S.Ct. 566 , 70 L.Ed. 1054 (1926):
“[Ujnless and until this Court overrules Raffel v. United States ... I think a state court is free to regard the defendant’s decision to take the stand as a waiver of his objection to the use of his failure to testify at an earlier proceeding or his failure to offer his version of the events prior to trial.” 426 U.S. at 632, 633 , 96 S.Ct. at 2251-52 .
Raffel v. United States, supra, was a prosecution for conspiracy to violate the National Prohibition Act. At the first trial, an agent testified that Raffel had admitted ownership of a drinking place; Raffel did not testify. The first trial ended in a hung jury, and upon retrial the agent testified as before. Raffel elected to testify and denied making the statement testified to by the agent. He was then cross-examined on his failure to testify at the first trial. The United States Supreme Court held that such cross-examination was permissible because Raffel had waived the privilege against self-incrimination by electing to testify.
The majority opinion on original submission relies upon Raffel v. United States, supra. That case has not been overruled by the Supreme Court, even though it had a clear opportunity to do so in Doyle v. Ohio, supra.
In Raffel v. United States, supra, the Supreme Court of the United States cited as being in accord with its holding a case from this Court, Sanders v. State, 52 Tex.Cr.R. 156 , 105 S.W. 803 (1907). In that case, we summarized the question presented as follows:
“Appellant testified in his own behalf. On cross-examination he was asked, and required to answer in the affirmative, the following question: ‘Is it not a fact that one John Rountree, now dead, on the occasion of two former trials of cases growing out of the sale of beer from the same box and at same time, testified that he, John Rountree, did not receive any money from Joe Howard for the beer in question, and he, John Rountree, did not deliver said beer to the said Joe Howard, but that you, defendant, delivered it to him; and is it not a further fact that you, defendant, did not take the stand as a witness and deny the said statements of John Rountree?’ ”
This Court held that questioning Sanders about his failure to testify in the earlier, related cases was a legitimate way of impeaching his testimony. That opinion went on to state that such questioning did not constitute a reference to Sanders’ failure to testify because he had taken the stand and testified.
Raffel and Sanders, 1 not Doyle and Simmons , are clearly controlling. I would follow the controlling decisions and not run ahead of the Supreme Court of the United States to reverse this judgment.
The majority, apparently apprehensive and insecure in basing its decision on federal grounds, also attempts to bottom its decision on state law. In so doing, the Court introduces a new and dangerous holding: “that Article 38.08 ... applies to a defendant’s silence on some matters at a pretrial hearing even when he does testify at that hearing about other matters.”
Art. 38.08, V.A.C.C.P., offers no more support for the result reached by the major *856 ity than do Doyle and Simmons . Art. 38.08 prohibits references to the defendant’s failure to testify. Appellant did not fail to testify; he testified both at the pretrial hearings and at the trial. In Sanders v. State, supra, which the majority is apparently overruling in order to reverse this conviction, this Court stated:
“The statute [now Art. 38.08, V.A.C.C.P.] inhibiting a reference to the failure of defendants to testify refers to a case on trial in which he had not testified. That ground of objection could not apply here, because appellant took the stand and testified.”
When the accused testifies, he assumes the character of a witness and may be contradicted, discredited, and impeached like any other witness. Fitzpatrick v. United States, 178 U.S. 304 , 20 S.Ct. 944 , 44 L.Ed. 1078 (1900); Brown v. United States, 356 U.S. 148 , 78 S.Ct. 622 , 2 L.Ed.2d 589 (1958); Valerio v. State, 494 S.W.2d 892 (Tex.Cr.App.1973); Burton v. State, 67 Tex.Cr.R. 149 , 148 S.W. 805 (1912).
Even if the majority concludes that it was error to impeach appellant by his silence at the pretrial hearings, it should also conclude that such error was harmless beyond a reasonable doubt. Two of the San Antonio police officers who investigated this case testified before the jury that appellant told his exculpatory story to the police following his arrest. Thus, the jury was aware that appellant’s testimony was not a recent fabrication, but was consistent with the statements he had made to the police from the time of his arrest. The impeaching effect of appellant’s silence at the pretrial hearings must be considered in this context. So considered, the error perceived by the majority is clearly harmless. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969); Schneble v. Florida, 405 U.S. 427 , 92 S.Ct. 1056 , 31 L.Ed.2d 340 (1972); Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977).
I dissent to the majority opinion on the appellant’s motion for rehearing and would affirm this judgment.
DOUGLAS and W. C. DAVIS, JJ., join in this opinion.
. In footnote 3 of the concurring opinion on Appellant’s Motion for Rehearing, Sanders v. State, 52 Tex.Cr.R. 156 , 105 S.W. 803 (1907), is discussed and the statement is made: “Why the dissent relies on such holding is not easy to understand.” To explain and to reiterate, Sanders v. State, supra, has before today never been overruled by this Court and it was cited with approval and followed by the Supreme Court of the United States in Raffel v. United States, 271 U.S. 494 , 46 S.Ct. 566 , 70 L.Ed. 1054 (1926). The Supreme Court has never overruled Raffel; Sanders and Raffel should be followed in this case.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9674709. Public record. Not legal advice.