determining that the appellant had preserved his complaint that the State continued to question a witness who had invoked the Fifth Amendment because he objected “to this line of questioning” and the trial court ruled on the objection before determining whether the appellant was harmed
How later courts described this case
- determining that the appellant had preserved his complaint that the State continued to question a witness who had invoked the Fifth Amendment because he objected “to this line of questioning” and the trial court ruled on the objection before determining whether the appellant was harmed
- finding reversible error due to State's calling witness who asserted her Fifth Amendment privilege because State's questioning of witness's inadmissible statement secured defendant's conviction
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
concurring.
I find that the prosecuting attorney in this cause, after appellant’s trial counsel got the “horse” up to the gate, got on the “horse,” opened the gate, and thereafter rode the “horse” unmercifully. He caused much damage to appellant’s pasture. The majority is correct in holding that reversible error was committed in this cause.
In Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972), up to a point, the same thing which happened in this cause happened there. In Glasper , a co-indictee was called by the defendant to testify. The witness refused to testify by invoking his Fifth Amendment privilege against self-incrimination. This Court set out the rules:
The general rule is that when a witness, other than accused, declines to answer a question on the ground that his answer would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or favorable to the defendant...
The reason for the rule is that, in refusing to answer a question on the ground that the answer would tend to incriminate him, the witness is exercising a constitutional right personal to himself, the exercise of which would neither help nor harm a third person. If no inference of guilt can be indulged against the person who declines to testify, none could be drawn as to the guilt of a co-indictee...
After stating the rules, this Court then stated the following:
This court recognizes that “when a witness claims his privilege, a natural, indeed an almost inevitable, inference arises as to what would have been his answer if he had not refused.” ... In this regard, it is noted that it was the appellant who called the witness to testify, and that with apparent knowledge that the witness intended to invoke the Fifth Amendment privilege. At this point an inevitable inference arose that had the witness testified, he would have done so in behalf of the appellant. It is further noted, that although the court overruled appellant’s objection, the matter was abruptly dropped by the prosecutor. No reversible error is shown. [Emphasis Added]
In this instance, the prosecuting attorney did not drop the matter.
By what is stated in the majority opinion in this cause, the prosecuting attorney and the trial attorney for the appellant knew that the witness was a co-indictee of the appellant. Once the witness was called by the appellant, the prosecuting attorney should have been on his feet objecting like crazy and requesting that a hearing be held outside the presence of the jury. He did neither, but allowed appellant’s counsel to lead the “horse” to the gate. When the “horse” did not do anything, the prosecuting attorney, with permission of the trial judge, got on the “horse,” opened the gate and unmercifully rode the “horse” through appellant’s pasture, doing much inferential damage to the pasture.
The prosecuting attorney in this cause, in conjunction with the trial judge’s overruling appellant’s objection, caused too much damage to be done to appellant’s pasture for reversible error not to have occurred. I, therefore, reluctantly concur to the reversal.