adopting this rule following 1965 enactment of Article 37.07, which adopted bifurcated trial system applicable to trials of all felonies and misdemeanors punishable by imprisonment
How later courts described this case
- adopting this rule following 1965 enactment of Article 37.07, which adopted bifurcated trial system applicable to trials of all felonies and misdemeanors punishable by imprisonment
- in dicta, “Thus, where the defendant has a right to an evidentiary hearing on a motion to suppress, he may take the stand and limit his waiver of his privilege against self-incrimination to that hearing.”
- defendant's constitutional right against self-incrimination violated where State called defendant to testify at punishment phase regarding prior convictions; defendant's waiver of right at guilt-innocence by giving testimony on merits did not constitute waiver of right at punishment phase
- noting that defendant who testifies at punishment takes stand “for all purposes”
Written by the judges who cited it.
Distinguished
Distinguished by Cantu v. State, 1987 Tex. Crim. App. LEXIS 507 (1987)
Brumfield, supra, is inapplicable to the instant case.
The opinion
WOODLEY, Presiding Judge
(concurring).
A defendant who testifies as a witness in his own behalf at his jury trial on the issue of guilt may be cross-examined and recalled for further cross-examination like any other witness.
The question before the court in Stratman v. State, Tex.Cr.App., 436 S.W.2d 144 , and in the case at bar is whether the right to recall the defendant for further cross-examination extends to the hearing on the proper punishment to be assessed.
Our holding in Stratman was to the effect that it does where the testimony to be elicited was evidence which was admissible and could have been elicited at the first hearing and was also admissible evidence at the hearing on punishment.
In the case at bar, the defendant was recalled for further cross-examination at the hearing on punishment and testimony was elicited from him which was not admissible and could not have been legally elicited from him or any other witness at the hearing on guilt or innocence, though it was admissible evidence at the punishment hearing.
We properly held on original submission that it was error to permit the state to recall the defendant and require him to give such testimony.
For the reasons stated I concur in the overruling of the state’s motion for rehearing.
BELCHER, J., joins in this concurrence.
DOUGLAS, J., not participating.