# Whitmore v. State

> Court of Criminal Appeals of Texas · July 12, 1978 · 570 S.W.2d 889

URL: https://www.frixlaw.com/law-library/cases/9768207

## Case

- **Full name:** James E. WHITMORE, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 12, 1978
- **Citations:** 570 S.W.2d 889
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Odom, Douglas, Onion, Roberts, Phillips, Dally, Reavley, Vollers, Davis
- **Cited by:** 89 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Questioned by Cheyenne Pate v. State (1998).
- Negative treatments: 1
- Distinguished by: 1
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768207

## Opinion text

DOUGLAS, Judge,
dissenting.
On appellant’s motion for rehearing the majority held that he was denied his constitutional right to the testimony of co-defendant Totty. Totty had been acquitted *903 subsequent to appellant’s conviction but pri- or 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 refused 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.
Appellant’s motion for new trial was filed after the time provided for filing such motions. See Article 40.05, V.A.C.C.P. The majority held that appellant was denied his right to compulsory process and that, under these circumstances, the Texas Code of Criminal Procedure provision governing the time for filing of motions for new trial must yield to appellant’s superior constitutional rights. The majority further held that the motion for new trial that alleged as grounds newly available testimony should have been granted.
The majority opinion, on rehearing, relied on Washington v. Texas, 388 U.S. 14 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967), and Braswell v. Wainwright, 463 F.2d 1148 (5th Cir. 1972). In Washington , the Supreme Court of the United States was confronted with the question whether the Sixth Amendment right to have compulsory process for obtaining witnesses in his favor is applicable to the states through the Fourteenth Amendment, and whether that right was violated by a state procedural statute providing that persons charged as principals, accomplices, or accessories in the same crime cannot be introduced as witnesses for each other.
Determining that the Sixth Amendment right to compulsory process is incorporated into the Due Process Clause of the Fourteenth Amendment, the Court wrote:
“The right to offer the testimony of witnesses, and to compel their attend-anee, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” 87 S.Ct. at 1923 .
The Court held that the state statute in question violated the petitioner’s constitutional rights because it “arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” 87 S.Ct. at 1925 . But the Court stressed that the statute was invalid because it arbitrarily prevented whole categories of defense witnesses from testifying on the basis of prior categories that presumed them unworthy of belief. The Court implied that it would have had greater difficulty in striking down the state rule if the accused accomplice would have been absolutely prohibited from testifying. It pointed out that the rule permitted the accomplice to be called by the prosecution to testify against the defendant, or to testify for the defendant after he was acquitted at his own trial. Common sense suggested that an accomplice often has a greater interest in lying in favor of the prosecution rather than against it, in order to obtain leniency from the prosecution.
Justice Harlan, in his concurring opinion, stated that that case did not implicate the right to compulsory process in any manner. In his view, the ease was one in which the State of Texas had recognized as relevant and competent the testimony of an accomplice witness but had arbitrarily barred its use by the defendant and that this violated the Due Process Clause.
In Braswell , the “rule” regarding the sequestration of witnesses who intended to testify was invoked. A defense witness *904 violated the rule by remaining in the courtroom during the State’s case-in-chief. As a result the witness was not permitted to testify.
The United States District Court for the Southern District of Florida granted Bras-well relief in a habeas corpus proceeding. Upon the State’s appeal, the Court of Appeals noted that the excluded testimony was crucial to Braswell’s claim of self-defense (he had been convicted of aggravated assault). The Court stated that federal courts are reluctant to strike down valid state procedural rules, but held that application of the rule in question under these circumstances — where the excluded witness was Braswell’s sole corroborating witness— violated his constitutional right to compulsory process. In affirming the district court, the Court relied on Washington v. Texas, supra.
The instant case is readily distinguishable from the Washington and Braswell cases. In the latter two cases, the state procedural rules in question operated to exclude competent evidence to the detriment of the defendant. Those rules were thus in direct conflict with the defendants’ constitutional right to compulsory process.
In contrast, the rule governing the time for filing of motions for new trial in no manner pertains to the admission or exclusion of evidence or to the availability of witnesses. The State did not use this rule to arbitrarily prevent key defense witnesses from testifying, as occurred in Washington . Here, appellant chose not to call Totty at trial. The State did not prevent him from testifying.
Moreover, there was no conflict between the application of this procedural rule and appellant’s right to compulsory process. The only conflict possibly extant was between appellant’s Sixth and Fourteenth Amendment rights and Totty’s Fifth Amendment privilege against self-incrimination. Although such apparent conflict between the constitutional rights of the co-defendants was not resolved until after appellant’s trial, this did not implicate the Due Process Clause, particularly in light of the fact that there was no real conflict between such constitutional rights in the first place for reasons which follow.
The privilege against self-incrimination is personal to the witness and can be asserted only by him. See Rogers v. United States, 340 U.S. 367 , 71 S.Ct. 438 , 95 L.Ed. 344 (1951); Hoffman v. United States, 341 U.S. 479 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951); United States v. Gomez-Rojas, 507 F.2d 1213 (5th Cir. 1975). Not even the witness’ attorney may claim the privilege for him, as Totty’s attorney attempted to do here. United States v. Moore, 485 F.2d 1165 (5th Cir. 1973); Ex parte Miers, 124 Tex.Cr.R. 592 , 64 S.W.2d 778 (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); 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. . . . Once the Court satisfies itself that the claim is well-grounded as to the testimony desired, it may, in its discretion, decline to permit either party to place the witness on the stand for the purpose of eliciting a claim of privilege or to comment on this circumstance.” United States v. Gomez-Rojas, supra, at 1219, 1220.
In the instant ease, therefore, appellant’s constitutional right to compulsory process was not in conflict with Totty’s constitutional right against self-incrimination. The declarations made by Totty’s attorney concerning what Totty might have done or would have done if he had been called to testify presented no 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 *905 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 trial 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, supra. The rationale of the Washington and Braswell cases is not applicable under these circumstances.
Zerschausky v. Beto, 396 F.2d 356 (5th Cir. 1968), cert. denied 393 U.S. 1004 , 89 S.Ct. 493 , 21 L.Ed.2d 468 (1968), involved a proceeding on petition for writ of habeas corpus.
In April of 1963, Zerschausky had been convicted in a Texas district court for murder with malice and was sentenced to thirty years. Three potential witnesses at his trial had been charged as accessories and did not testify. Their charges were dropped shortly thereafter.
Zerschausky took no appeal from his conviction, but in 1966 he filed a petition for writ of habeas corpus in the same state district court which granted the writ returnable before this Court. We denied relief. Ex parte Zerschausky, 417 S.W.2d 279 (Tex.Cr.App.1967). Zerschausky then filed a petition for writ of habeas corpus in federal district court. The district court conducted a thorough factual investigation and thereafter handed down an extensive memorandum opinion denying relief. 274 F.Supp. 231 (Western District, Tex.1967).
On appeal, Zerschausky relied on Washington v. Texas, supra, which had held unconstitutional the Texas statutes denying defendants the right to call as witnesses anyone under indictment as accessories to the crime. The Court of Appeals determined that Washington was distinguishable and affirmed the district court.
The Court observed that no testimony by accessories was offered at Zerschausky’s trial. The testimony which would have been given by the accessories would have conflicted in several respects with Zerschausky’s theory of self-defense. The Court further observed that Zerschausky had waited to complain until charges had been dropped against the accessories and until the statute of limitations had run.
The Court reasoned from the foregoing that Zerschausky’s failure to call the accessories to the stand was the result of a voluntary and conscious decision in trial strategy, not mere obedience to the Texas statute. Thus he had waived his constitutional right to compulsory process. See also Henry v. Mississippi, 379 U.S. 443 , 85 S.Ct. 564 , 13 L.Ed.2d 408 (1965); Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 (1963).
Likewise, in the present case appellant never offered the testimony of Totty at the hearing on the motion for new trial. Hence, his constitutional right to compulsory process was waived. The facts in this case withdraw it from the reach of Washington v. Texas, supra.
Even assuming the rule governing filing of motions for new trial did conflict in some manner with appellant’s constitutional rights, it should be observed that not all state procedural rules must yield to an assertion of such rights. Otherwise, the decisions holding that failure to object to the violation of certain constitutional rights waives the error would be invalid. See, e. g., Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), which held that failure to object to Witherspoon error waives the error; this case could not stand if all procedural rules in conflict with the assertion of constitutional rights must fall. Likewise, the contemporaneous objection rule would fall in such circumstances with regard to errors of constitutional dimension.
The Court has promulgated a new rule which could result in chaos for our criminal justice system. The rule apparently can be used to invalidate any conviction where there is more than one defendant charged with the commission of an offense.
*906 In the opinion on appellant’s motion for rehearing, the majority observed that an accused may not call as a witness a co-defendant who will assert his privilege against self-incrimination. The majority then determined that the only requirement the accused must meet in regard to obtaining such testimony at the time of his trial is to ask the co-defendant’s lawyer whether he (counsel) will advise the co-defendant to invoke the protection of the Fifth Amendment. This determination was erroneous for the reasons previously stated. The majority finally concluded that this Court will review a claim of newly discovered or newly available evidence as it stood at the time that appellant filed his motion for new trial based upon such evidence, even though the time for filing the motion had passed.
Under the majority’s reasoning, an accused tried and convicted of murder may file a motion for new trial (even after his appeal apparently) claiming newly available evidence if the co-defendant has been convicted and if such conviction has become final. At that point, if the co-defendant is willing to give favorable testimony for the accused, then he is entitled to a new trial. If the accused was then inclined to reciprocate and give favorable testimony for the convicted co-defendant, the co-defendant would probably also be entitled to a new trial. Both defendants would have to be reprosecuted and, thus, the State would be back where it started since neither co-defendant could be compelled to testify for the other. Such a situation would clearly hinder the administration of justice.
For the reasons stated above, the State’s motion for rehearing should be granted and the judgment affirmed.
ONION, P. J., and TOM G. DAVIS and W. C. DAVIS, JJ., join in this dissent.
VOLLERS, J., not participating.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768207. Public record. Not legal advice.