noting that "the application of Article 38.23 ... is not before us in this case.... Thus we do not decide whether the outcome would be the same under a statutory analysis”
How later courts described this case
- noting that "the application of Article 38.23 ... is not before us in this case.... Thus we do not decide whether the outcome would be the same under a statutory analysis”
- cruel trilemma of incrimination, contempt, and perjury does not excuse defendant from the consequences of perjury
Written by the judges who cited it.
The opinion
MEYERS, J.,
delivered this dissenting opinion.
This case should be improvidently granted. The State misreads the Court of Appeals’ opinion and directs its grounds for review and argument at a holding the Court of Appeals did not make.
The Court of Appeals’ opinion has two parts. In Part I of its opinion, labeled “Discussion,” the court first determines there was a Fifth Amendment violation. Butterfield v. State, No. 03-97-00085-CR slip op. at 4, 1998 WL 104717 (Tex.App.—Austin March 12, 1998)(not designated for publication) 1 (“Butterfield’s testimony was compelled in violation of his Fifth Amendment right”). In Part II, labeled “Conclusion,” the court then concludes the testimony, obtained pursuant to such violation, was suppressible, citing as the sole authority for this, our state exclusionary rule: 2
*456 The statements the State seeks to use were obtained in violation of' Butter-field’s Fifth Amendment right, and the trial court could conclude they may not be used as evidence against Butterfield in the subsequent criminal prosecution for aggravated perjury. See Tex.Code Crim. Proc. art. 38.23 (West Supp.1998).
Id. at 6. Nowhere, in either Part of its opinion, does the Court of Appeals hold, state, or even suggest the testimony was properly suppressed under some sort of Fifth Amendment exclusionary rule. 3 If indeed this was the Court of Appeals’ holding, it surely would have expended at least a sentence of explanation or cited one analogous authority in support of such unprecedented holding. 4 The majority devotes pages of discussion to support its holding on this issue of first impression. From the Court of Appeals, not a single word. 5
Despite this, the State Prosecutory Attorney’s petition for discretionary review and supporting legal brief argue the Court of Appeals erred in holding the statements were suppressed under a Fifth Amendment exclusionary rule theory. The Court of Appeals held nothing of the sort. Because the State complains about something the Court of Appeals did not hold, this case should be improvidently granted. Expounding on an issue the Court of Appeals’ opinion did not address, the majority is acting outside of its jurisdiction as a *457 court of discretionary review. 6
For these reasons, I dissent.
APPENDIX
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
No. 03-97-00085-CR
The State of Texas, Appellant
v.
Tommy Wayne Butterfield, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 0961962, HONORABLE BOB PERKINS, JUDGE PRESIDING
The State brings this interlocutory appeal, challenging the trial court’s granting of a motion to suppress evidence in an aggravated perjury case. See Tex.Code Grim. Proc. Ann. art. 44.01 (West Supp. 1998). We will affirm the trial court’s order.
STATEMENT OF FACTS
Allegations were made that Butterfield’s stepdaughter had been sexually assaulted. 1 Butterfield was a suspect in the assault. Butterfield’s wife, Louisa agreed to place Butterfield’s stepdaughter with another family for protection and further agreed not to contact her while unsupervised. Despite this agreement, on the day Butter-field’s stepdaughter was scheduled for a medical examination, Louisa removed her from daycare, whereafter they both disappeared.
On February 23, 1996, another trial court held a civil hearing to determine whether the Department of Protective and Regulatory Services should be named temporary managing conservator of Butter-field’s stepdaughter. Butterfield was subpoenaed to testify at the civil proceeding for the purpose of determining the location of his wife and stepdaughter. Butterfield attempted to exercise his Fifth Amendment right against self-incrimination in response to specific questions concerning the whereabouts of his wife and stepdaughter and any communications he had had with his wife. The judge ordered Butterfield to answer the questions, threatening to find him in contempt if he refused and to place him in jail until he answered. Faced with that choice, Butterfield answered the questions.
On May 7,1996, Butterfield was indicted for one count of aggravated perjury and two counts of tampering with a witness. See Tex. Penal Code Ann. § 36.05 (West 1994 & Supp.1998) & § 37.03 (West 1994). Allegedly untrue testimony Butterfield gave during the course of the February 23rd civil hearing formed the basis of the aggravated perjury charge. Butterfield filed a motion to suppress the statements, and the trial court held hearings on the motion on July 2, 1996 and September 6, 1996. In its order granting Butterfield’s motion, the trial court indicated the suppressed statements were those “particularly described in the oral ruling by the Court on 9/6/96.” At the September 6, 1996 pretrial hearing, with regard to the perjury prosecution, the trial court suppressed all of Butterfield’s testimony from the February 23rd hearing given after Butterfield tried to invoke the Fifth Amendment and the judge threatened to put him in jail. 2 *458 In one point of error, the State appeals the trial court’s granting of the motion to suppress, contending that the trial court erred in suppressing the statements because Butterfield had no constitutional protection permitting him to commit perjury.
DISCUSSION
A trial court has broad discretion in determining the admissibility of evidence. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991). At a hearing on a motion to suppress, the trial court is the sole and exclusive trier of fact. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). In reviewing a trial court’s ruling on a motion to suppress evidence, an appellate court must view the evidence in the light most favorable to the trial court’s ruling at the suppression hearing. Carroll v. State, 911 S.W.2d 210, 222 (Tex.App.-Austin 1995, no pet.). “Where, as here, the record contains the ruling but no findings of fact or conclusions of law, the appellate court must presume that the trial court found whatever facts were needed to support its ruling. Id. An appellate court will not reverse that ruling without a showing of a clear abuse of discretion. See Allridge, 850 S.W.2d at 492 ; Combest v. State, 953 S.W.2d 453, 456 (Tex.App.-Austin 1997, no pet.).
The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. Accordingly, a witness can refuse to answer any question that will subject him to criminal liability. Tuffiash v. State, 948 S.W.2d 873, 879 (Tex.App.-San Antonio 1997, pet. refd). If an inquiry calls for an answer that might reasonably present a hazard of self-incrimination, a witness may refuse to answer on the ground of privilege, and the fact that an inquiry is made in the course of a civil proceeding does not interdict the witness’s privilege. See Ex parte Butler, 522 S.W.2d 196,198 (Tex.1975).
Here, Butterfield was subpoenaed to testify, under oath, in a court proceeding. As a suspect in his stepdaughter’s sexual assault, Butterfield faced a legitimate hazard of self-incrimination in answering questions that might lead to the location of his wife and stepdaughter and evidence which could link Butterfield to the sexual assault. Despite this, the judge refused to allow him to exercise his Fifth Amendment right against self-incrimination and ordered him to testify under the threat of contempt. By presenting Butterfield with the three choices of testifying against himself, possibly committing perjury, or going to jail, the judge subjected Butterfield to the exact situation which the Fifth Amendment aims to prevent. See Pennsylvania v. Muniz, 496 U.S. 582, 596 , 110 S.Ct. 2638 , 110 L.Ed.2d 528 (1990) (citing Doe v. United States, 487 U.S. 201, 212 , 108 S.Ct. 2341 , 101 L.Ed.2d 184 (1988)) (policy un-dergirding Fifth Amendment is unwillingness of Supreme Court “to subject those suspected of crime to the cruel trilemma of self-accusation., perjury, or contempt”); South Dakota v. Neville, 459 U.S. 553, 563 , 103 S.Ct. 916 , 74 L.Ed.2d 748 (1983) (Supreme Court has long recognized that Fifth Amendment prevents State from forcing choice of “cruel trilemma” on defendant). Thus, Butterfield’s testimony was compelled in violation of his Fifth Amendment right. See Neville, 459 U.S. at 562 , 103 S.Ct. 916 (Fifth Amendment prohibits exertion of physical or moral compulsion on person, asserting the privilege); Thomas v. State, 723 S.W.2d 696, 704 (Tex.Crim.App.1986) (interpreting and defining moral compulsion to include offering defendant choices, one of which results in penalty, punishment or detriment from which defendant is entitled to be free).
Despite the State’s urgings, our inquiry ends there. The State argues that the *459 Fifth Amendment does not permit Butter-field to commit perjury. The State’s position, however, requires this Court to assume that Butterfield testified untruthfully after the judge refused to allow him to invoke his Fifth Amendment rights. In footnote three of the State’s brief, the State asks “for the purposes of understanding the issue presented in this appeal ... that this Court assume evidence exists which would establish the falsity of the specific statements made by [Butterfield] which are detailed herein.” Essentially, the State asks this Court to assume that Butterfield is guilty of the alleged perjury before he has even been tried. This is counter to the well-established legal presumptions that sworn testimony is presumed to be true and that an accused is innocent until proven guilty.
Additionally, the cases the State cites to support its position are distinguishable. In the bulk of cited cases, the witnesses never invoked their Fifth Amendment rights; rather, they chose to testify falsely in grand jury proceedings or file false affidavits or tax forms. See United States v. Wong, 431 U.S. 174 , 97 S.Ct. 1823 , 52 L.Ed.2d 231 (1977) (false statements given in grand jury testimony could be basis for perjury); United States v. Mandujano, 425 U.S. 564 , 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976) (witness who chooses to commit perjury instead of invoking Fifth Amendment can be prosecuted for perjury); Bryson v. United States, 396 U.S. 64 , 90 S.Ct. 355 , 24 L.Ed.2d 264 (1969) (defendant should have availed himself of legal method for challenging affidavit requirement instead of choosing to include falsehoods in affidavit); United States v. Knox, 396 U.S. 77 , 90 S.Ct. 363 , 24 L.Ed.2d 275 (1969) (defendant should have invoked Fifth Amendment right instead of filing false tax form). Thus, these cases are not controlling. In another case, the court actually suppressed statements given by a witness under eom-pulsion. See United States v. Friedrich, 842 F.2d 382 (D.C.Cir.1988).
CONCLUSION
By refusing to permit Butterfield to exercise his Fifth Amendment right, the judge stripped Butterfield of his constitutional right to decline to answer the questions; consequently, the substance of But-terfield’s compelled testimony thereafter is irrelevant. The statements the State seeks to use were obtained in violation of Butterfield’s Fifth Amendment right, and the trial court could conclude they may not be used as evidence against Butterfield in the subsequent criminal prosecution for aggravated perjury. See Tex.Code Grim. Proc. Ann. art. 38.23 (West Supp.1998). As the State has not demonstrated that the trial court abused its discretion in granting Butterfield’s motion to suppress, we overrule the State’s sole point of error and affirm the order of the trial court,
/s/ Marilyn Aboussie Marilyn Aboussie, Justice
Before Justices Powers, Aboussie and Davis *
Filed: March 12,1998
Do Not Publish
COURT OF APPEALS
ThiRd District of Texas Austin, Texas
No. 03-97-00085-CR
The State of Texas v. Tommy Wayne Butterfield
(NO. 0961962 IN THE 331ST DISTRICT COURT OF Travis COUNTY)
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I, DIANE O’NEAL, CLERK OF THE THIRD COURT OF APPEALS OF THE STATE OF TEXAS, do hereby certify *460 that the foregoing 6 (Six) pages contain a true and correct copy of the:
Opinion
filed in said Court on the 12th day of March, 1998, in the above numbered and styled cause.
WITNESS MY HAND and the seal of the COURT OF APPEALS for the Third District of Texas, this the 4th day of June A.D. 1998. DIANE O’NEAL, CLERK
By: /s/ Mark Adams Mark Adams, Deputy
. See Appendix for a copy of the Court of Appeals’ opinion.
. Code of Criminal Procedure article 38.23 provides:
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In response to questioning in oral argument about the applicability of article 38.23, the State Prosecuting Attorney stated the testimony should not be suppressed under article 38.23, per this Court’s opinion in State v. Mayorga, 901 S.W.2d 943 (Tex.Crim.App. 1995). Mayorga suggested that evidence is not "obtained” in violation of the law under article 38.23 if it was not already in existence before the state’s illegal conduct. Mayorga is a plurality opinion, and is distinguishable as well. Regardless, the State does not complain about the Court of Appeals’ holding under article 38.23.
Ironically, the majority notes "the application of Article 38.23 ... is not before us in this case.” Majority opinion at 452. I could not agree more. The State fails to complain *456 about the only basis on which the Court of Appeals held the evidence was suppressible.
. Because the Court of Appeals' opinion is unpublished, we attach it as an Appendix to this opinion.
. For instance, the United States Supreme Court recognized in a similar situation:
Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial, [footnote] While the general common-law practice is to admit evidence despite its illegal origins, this Court in a number of areas has recognized or developed exclusionary rules where evidence has been gained in violation of the accused’s rights under the Constitution, federal statutes, or federal rules of procedure. Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 ; Rogers v. Richmond, 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 ; Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 ; Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266 , 84 L.Ed. 307 ; Malloty v. United States, 354 U.S. 449 , 77 S.Ct. 1356 , 1 L.Ed.2d 1479 .
United States v. Blue, 384 U.S. 251, 255 , 86 S.Ct. 1416 , 16 L.Ed.2d 510 (1966) (emphasis added).
. The majority’s position that the Court of Appeals’ "held” the evidence was suppressi- ■ ble under a Fifth Amendment exclusionary theory is based on the Court of Appeals’ discussion of the Fifth Amendment violation:
The dissent argues that we have misread the Court of Appeals' holding. We respectfully disagree. In the "Discussion” portion of the court’s opinion, the court analyzes solely Fifth Amendment law. The court reasons that a Fifth Amendment violation occurred and that the "inquiry ends there." The court also distinguishes Supreme Court precedent on the Fifth Amendment.
Majority opinion at 452. The majority cannot point to any holding or language in the Court of Appeals’ opinion even suggesting the evidence was suppressible under a Fifth Amendment theory. The most it is able to come up with is the Court of Appeals’ statement that "the inquiry ends there.” That is, the inquiry ends upon its conclusion that there was a Fifth Amendment violation. Article 38.23 provides that evidence obtained "in violation of any provisions of ... the Constitution of the United States of America ...” is not admissible. Once the Court determined there had been a Fifth Amendment violation, no more needed to be said, since evidence obtained in violation of the law is excluded under article 38.23. The majority says if the Court of Appeals were relying on article 38.23 the court "would have made some mention of that statute in the 'Discussion' portion of its opinion.” By this reasoning, then, if the Court of Appeals is relying on a Fifth Amendment exclusionary theory, wouldn’t the court "have made some mention of that [theory] in the ’Discussion’ portion of its opinion”?
No doubt the Court of Appeals will be astounded to learn what it has held in this case, and with so little effort. At the least, that Court will now surely question its decision to designate the opinion as unpublished, in light of the fact that the opinion embodies such a significant holding on an issue of first impression.
. There are other problems with the majority’s opinion. For instance, it makes a critical assumption of fact that the Court of Appeals did not make. The Court of Appeals expressly declined the State’s invitation to "assume evidence exists which would establish the falsity of the specific statements made[.]” Butter-field, slip op. at 5. I am unaware of any authority under which, in a petition for discretionary review context, this Court has ever assumed a fact to be otherwise than as viewed by the Court of Appeals, particularly a fact of consequence.
. To protect the victim’s identity, we will refer to the victim as "Butterfield’s stepdaughter.”
. In particular, the trial court suppressed all statements starting from page twenty-seven of the civil hearing statement of facts. The *458 State, however, stipulates on appeal that the trial court suppressed all of Butterfield’s statements after page sixteen of the civil hearing statement of facts. We will decide the case based on the trial court’s order and not on the State's stipulation.
Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1988).