the defendant’s Sixth Amendment right to compulsory process was violated when the trial court denied a motion for new trial based on newly available testimony that was "admissible and not merely cumulative, corroborative, collateral, or impeaching; and [the] materiality was such as would probably bring about a different result on another trial”
How later courts described this case
- the defendant’s Sixth Amendment right to compulsory process was violated when the trial court denied a motion for new trial based on newly available testimony that was "admissible and not merely cumulative, corroborative, collateral, or impeaching; and [the] materiality was such as would probably bring about a different result on another trial”
- “At the hearing [on the motion for a new trial] appellant offered the testimony of [co-defendant] at his own trial to show what his testimony would have been if [co-defendant] had testified at appellant’s trial.”
- “A defendant may not call as a witness a co-defendant who has indicated he will assert his privilege against self-incrimination under the Fifth Amendment of the United States Constitution.”
- “[I]n some cases where an accused’s constitutional rights are in conflict with a valid procedural rule of law the procedural rule must yield to the superior constitutional right.”
Written by the judges who cited it.
Later courts went against this
Questioned by Cheyenne Pate v. State (1998)
the Whitmore exception has been questioned by later decisions.
Distinguished
Distinguished by Earley v. State, 1985 Tex. App. LEXIS 12191 (1985)
Therefore, we hold that Whitmore is inapplicable here.
The opinion
DISSENTING OPINION ON APPELLANT’S MOTION FOR REHEARING
DOUGLAS, Judge.
The majority holds that appellant was denied his constitutional right to the testimony of co-defendant Totty and reverses.
Totty was acquitted subsequent to appellant’s conviction and prior to his motion for new trial. Appellant alleged in the motion that at the time of his trial he was deprived of Totty’s testimony because Totty would have asserted his privilege against self-incrimination and refuse to testify.
At the hearing on the motion for new trial, it was established that appellant’s attorney had requested that Totty testify at appellant’s trial. Although Totty’s attorney testified that he advised appellant’s attorney that Totty would assert his privilege at appellant’s trial, Totty himself never asserted the privilege nor indicated he would refuse to testify.
It should not have to be explained to the majority that the privilege against self-incrimination is personal to the witness and can be asserted only by him. United States v. Nobles, 422 U.S. 225 , 95 S.Ct. 2160 , 45 L.Ed.2d 141 ; Rogers v. United States, 340 U.S. 367 , 71 S.Ct. 438 , 95 L.Ed. 344 (1951), rehearing denied 341 U.S. 912 , 71 S.Ct. 619 , 95 L.Ed. 1348 ; Sharp v. United States, 410 F.2d 969 (5th Cir. 1969); United States v. Goodwin, 470 F.2d 893 (5th Cir. 1972), cert. denied 411 U.S. 969 , 93 S.Ct. 2160 , 36 L.Ed.2d 691 ; Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972); Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971). Not even the witness’ attorney may claim the privilege for him. United States v. Moore, 485 F.2d 1165 (5th Cir. 1973); Ex parte Miers, 124 Tex.Cr.R. 592 , 64 S.W.2d 778 (Tex.Cr.App.1933); 8 Wigmore, Evidence, Section 2272 at 426 (McNaughton rev. 1961). Furthermore, the privilege may not be asserted in advance of questions actually propounded to the witness. It must be asserted with respect to particular questions, and in each instance the court must determine the propriety of the refusal to testify. United States v. Malnik, 489 F.2d 682 (5th Cir. 1974), cert. denied 419 U.S. 826 , 95 S.Ct. 44 , 42 L.Ed.2d 50 ; Farmer v. State, 491 S.W.2d 133 (Tex.Cr.App.1973). Thus, “a simple blanket declaration by the witness that he cannot testify for fear of self-incrimination will not suffice to invoke the privilege . . .; the mechanism of the Fifth Amendment is not automatic or self-winding.” United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir. 1975), cert. denied 423 U.S. 826 , 96 S.Ct. 41 , 46 L.Ed.2d 42 . See also Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951).
In discussing Totty’s testimony in the instant case, the majority correctly states, “[a] defendant may not call as a witness a co-defendant who has indicated he will assert his privilege against self-incrimination under the Fifth Amendment of the United *900 States Constitution. Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972); Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), cert. denied 419 U.S. 1113 , 95 S.Ct. 791 , 42 L.Ed.2d 811 (1975); United States v. McKinney, 453 F.2d 1221 (9th Cir. 1972).” However, a review of those authorities reveals that the co-defendant witness in each case properly invoked the privilege before the court determined that the co-defendant would not be compelled to testify. Rodriguez v. State, supra; Glasper v. State, supra; Victoria v. State, supra; United States v. Roberts, supra; United States v. McKinney, supra.
In the case at bar, therefore, appellant’s constitutional right to compulsory process was not in conflict with co-defendant Totty’s constitutional right against self-incrimination. The declarations made by Totty’s attorney concerning what Totty might or would have done if he had been called to testify at appellant’s trial did not present the trial court with a problem of constitutional dimensions. Even Totty was not the exclusive judge of his right to exercise the Fifth Amendment privilege; the judge was entitled to determine whether any refusal to answer particular questions appeared to be based upon the good faith of the witness and was justifiable under all of the circumstances. United States v. Gomez-Rojas, supra; Ex parte Butler, 522 S.W.2d 196 (Tex.1975).
The court never had the opportunity to make such a determination. Since Totty never invoked his Fifth Amendment privilege, appellant’s right to compulsory process was not opposed. Accordingly, the court correctly overruled appellant’s motion for new trial because it was filed after the time provided for filing such motions. See Article 40.05, V.A.C.C.P. Appellant’s motion for rehearing should be overruled.
ONION, P. J., joins in this dissent.
En Banc.