Stephens v. State , 59 S.W.3d 377 ( 2001 )

OPINION

MURRY B. COHEN, Justice.

A jury convicted appellant of possession of cocaine weighing less than one gram, and the trial judge assessed punishment at one year in state jail. We reverse and remand.

Facts

On October 29, 1999, Officer Latin was conducting undercover surveillance in a parking lot while officers executed a search warrant inside a nearby apartment. A vehicle with Shari Marling, the driver, and appellant, the passenger, approached Officer Latin. Officer Latin determined that Marling wanted cocaine when Marling said, “I’m trying to get a 20,” which means $20 worth of drugs. Officer Latin also asked appellant what she wanted, and she said that she “was with Ms. Marling.”

Officer Latin told appellant and Marling to wait while he obtained the drugs. Officer Latin notified other officers, and Officer King approached the passenger’s side of the vehicle and ordered appellant to raise her hands and get out. As appellant did, her purse and a crack pipe fell to the ground. The crack pipe contained 3.9 milligrams of cocaine residue.

At trial, appellant called Marling as a defense witness. Marling at first testified, but then, still on direct examination, Mar-ling refused to testify, claiming the Fifth Amendment privilege against self-incrimination. Despite Marling’s prior testimony about the drug transaction, the trial judge allowed Marling to claim the privilege and ordered the jury to disregard all of Mar-ling’s prior testimony, including that (1) Marling had a drug problem and smoked cocaine regularly; (2) appellant did not use drugs, did not condone Marling’s drug use, and was going to help Marling enter a program for drug abusers while appellant allowed Marling to live in appellant’s home; (3) appellant was disappointed in Marling because of Marling’s drug use; (4) Marling pled guilty and was sentenced to 120 days for possessing cocaine; and (5) appellant never told Officer Latin she wanted drugs. Marling had testified to all of this before claiming the Fifth Amendment privilege.¹ Overruling appellant’s objection and request that Marling be compelled to testify, the judge instructed the jury to disregard all of her testimony.

Analysis

In issues one through three, appellant contends the trial judge erred by strildrig Marhng’s testimony because, by testifying, she waived her Fifth Amendment privilege.

The State agrees that Marling waived her privilege. It states, “Marling waived her Fifth Amendment privilege when she began her testimony and could not then be permitted to assert it to prevent the disclosure of additional relevant facts.”² The State contends there was no error, however, because “once the trial court determined that Marling would persist in her refusal to testify further, the judge had no choice but to strike her earlier testimony.” We disagree.

The judge should have compelled Marling to testify, instead of allowing Mar-ling to claim the privilege she had already waived.³ Because Marling waived the privilege, appellant was entitled to present Marhng’s testimony. See Draper v. State, 596 S.W.2d 855, 857 (Tex.Crim.App.1980)

(“If [a witness] voluntarily states a part of the testimony, he waives his right, and cannot afterwards stand on his [Fifth Amendment] privilege.”).⁴ The trial judge erred by not compelling Marling to continue testifying and also by striking her previous testimony, and both errors were constitutional. See Draper, 596 S.W.2d at 857 (denial of compulsory process of witnesses in violation of Sixth and Fourteenth Amendments to United States Constitution and Art. I, sec. 10, of the Texas Constitution); see also Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988) (right to compulsory process is not only the right to subpoena witnesses, but also to present them).

We are not holding that by testifying on one subject, a witness waives her privilege on all subjects. Each additional question may raise new potential for self-incrimination, and therefore, once the witness invokes the privilege, the court must determine “... whether the question pres-entís] a reasonable danger of further eri-mination in light of all the circumstances, including any previous disclosures.” Rogers v. United States, 340 U.S. 367, 374, 71 S.Ct. 438, 442, 95 L.Ed. 344 (1951). We believe that rule does not apply here, however, because the State, after considering “all the circumstances, including [Mar-ling’s] ... previous disclosures,” states that Marling waived the privilege and thus “could not be permitted to assert her Fifth Amendment rights as to particular facts.” See notes 1 and 2. Given that posture, no further inquiry is needed.

When there is constitutional error, we must reverse unless we determine beyond a reasonable doubt that the error made no contribution to the conviction. Tex.R.App. P. 44.2(a). We cannot say that these errors were harmless because they (1) eliminated existing testimony important to appellant’s defense, including testimony that appellant was not a drug user; (2) stopped Marling from giving additional, relevant testimony that could have changed the trial’s outcome; and (3) left the jury with a potentially distorted view of the facts, i.e., the arresting officers’ view. Moreover, the record shows that appellant’s conviction was not inevitable: (1) jury deliberations lasted over four hours, longer than the testimony and arguments combined; (2) the jury sent out three written questions, one asking to see Marling’s judgment of conviction from this transaction and two asking about whether and where Officer King saw the pipe fall to the ground; and (3) the jury sent out a note stating that two jurors had voted to acquit appellant. We conclude that the guilty verdict was not easily reached, even without Marling’s testimony. With it, the result may have been different.

We sustain issues one through three.

In issues four through six, appellant contends the trial judge erred by limiting Robin Rhodes’s testimony. We agree and will reach this issue because it is likely to arise again after remand. We follow the usual standard of review, abuse of discretion, for the trial judge’s decision to limit testimony. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App.1990) (op. on reh’g).

Rhodes testified that Marling told him at least three times the pipe was hers and that appellant did not know of it. Rhodes, however, was vulnerable to impeachment because he was appellant’s fl-aneé and had felony and misdemeanor theft and credit card abuse convictions, which the State brought out on cross-examination. Because of the State’s impeachment, appellant contends she needed to prove Rhodes credible by showing that the State had relied on Rhodes’s testimony repeatedly and had paid him richly for those services.

Rhodes testified before the jury that he was currently employed by the Harris County Organized Crime Narcotics Task Force, which included the Harris County District Attorney’s Office, as a confidential informant in over 50 cases, more than 80 percent of which resulted in convictions; that he had twice testified for the State, including once in a capital murder prosecution; and that the State had not doubted him.

Rhodes was not allowed to testify that (1) the Harris County District Attorney’s Office paid him $30,000 for his participation in the capital murder case; (2) he received $300 from the Harris County District Attorney’s Office about four weeks before this trial; (3) more than $1000 was pending for his help with a large narcotics transaction; (4) he had helped secure over 50 search warrants; and (5) the search warrants obtained solely on the basis of Rhodes’s statements were “too numerous to count.” The State contends Rhodes’s excluded testimony was cumulative and thus harmless because he testified he had assisted the State often and the State never doubted him. The State further contends that any error was harmless because Rhodes’s excluded testimony would have implied that Rhodes “might say anything for money.” We disagree.

The jury never learned that the Harris County District Attorney’s Office, whose representative was standing in front of it attacking Rhodes’s credibility, had paid Rhodes $30,000 for his testimony in a capital murder case. That was a crucial piece of evidence in this trial. The amount far exceeds any this panel has seen paid to a state court witness. If the jury had known that, it could have concluded that Rhodes was credible because the very agency prosecuting this case was willing to believe him, richly reward him, and vouch for him to a judge and jury when life and death were at stake. If Rhodes was worth $30,000 when he testified for the Harris County District Attorney’s Office, the jury needed to know that to assess his worth when he testified against it. In addition, the excluded testimony showed how much money Rhodes was risking by offending his employer with his testimony in this trial. We hold the trial judge abused her discretion by excluding item (1).

The same is true, for similar reasons, as to Rhodes’s pending and recently received payments, items (2) and (3) above. The same is also true of items (4) and (5), that Rhodes had helped secure over 50 search warrants and that many were obtained based solely on his statements. This shows that the police did not just receive and use information from Rhodes, but repeatedly represented that information as the truth to judges, who also accepted it as the truth and acted on it by issuing search warrants. This was not merely cumulative of Rhodes’s testimony to the jury. It was uniquely powerful and vastly superior evidence.

Finally, the prosecutor here never would have argued at trial that Rhodes “might say anything for money” because that would have destroyed the credibility of his own (and Rhodes’s) employer, the Harris County District Attorney’s Office, and the police for having used Rhodes as a witness and informant, as well as possibly exposing them to civil and criminal liability and professional discipline, not to mention the possibility that it might have led to setting aside convictions obtained with Rhodes’s help.

Given the importance of Rhodes’s testimony, the degree to which Rhodes was impeached, and the defensible nature of the case, we conclude that appellant was harmed. Tex.R.App. P. 44.2(b).

We sustain issues four through six.

We reverse the judgment and remand the cause.

Justice BRISTER, dissenting.

En Banc consideration was requested.

A majority of the justices of the Court voted to deny en banc consideration. Tex. R. App. P. 41.2(c).

Justice TAFT, dissenting from denial of en banc consideration. Chief Justice SCHNEIDER, dissenting from the denial of en banc consideration for the reasons stated in Justice TAFT’s dissenting opinion. Justice JENNINGS, dissenting from the denial of en banc consideration for the reasons stated in Justice BRISTER’s dissenting opinion.

1 . The dissenting opinion contends the record shows that Marling had a good privilege claim because Marling pleaded "nolo conten-dere to possession of ... cocaine on a push rod.... Marling was never prosecuted for possession of [a crack pipe], and thus was entitled to assert her Fifth Amendment rights with respect thereto.” We disagree that the record showed that the cocaine Marling pled guilty to possessing was on a push rod. The record on that point consists of two questions answered "I don’t know” by Officer King and a vague mention of "this device” in another question. The State has never claimed Mar-ling was prosecuted for cocaine on the push rod, rather than for cocaine in the crack pipe. Nor has the State claimed that Marling had a privilege. Nor has the State claimed that Marling did not waive any privilege she may have had. Those factual contentions and legal arguments are asserted only in the dissenting opinion.

2 . In addition, the State’s brief continued:

Once having related part of a transaction, a witness should not be permitted to assert the Fifth Amendment in order to prevent disclosure of additional, relevant facts. Ike-da, 846 S.W.2d at 521; Draper v. State, 596 S.W.2d 855, 857 (Tex.Crim.App.1980). "If [a witness] voluntarily states a part of the testimony, he waives his right, and cannot afterwards stand on his [Fifth Amendment] privilege.” Id., citing Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951).... Marling testified to some of the facts that occurred on the night of her arrest, but refused to testify regarding ownership of the crack pipe. Marling gave a partial account of the facts. However, once she waived her Fifth Amendment privilege and began her testimony, Marling could not be permitted to assert her Fifth Amendment rights as to particular facts.

(Emphasis added.)

3 . Striking the testimony would have been an option if Marling had had a meritorious privilege claim that she had not waived. Striking the witness’s testimony is not an option if the witness has no valid privilege, i.e., if the witness has waived the privilege, as Marling did. No testimony is presumed to be privileged. Tex.R. Evid. 501. On the contrary, all relevant testimony is admissible, Tex.R. Evid. 402, and the burden is on the one asserting a privilege — Marling—to prove her entitlement to it. Carmona v. State, 941 S.W.2d 949, 954 n. 6 (Tex.Crim.App.1997). The State does not contend Marling did so.

4 .This is not a case like Keller v. State, where the trial court properly struck a defense witness’s direct testimony because he refused to be cross-examined by the State. 662 S.W.2d 362, 365 (Tex.Crim.App.1984). Marling never refused to be cross-examined. The State never cross-examined her or tried to. This case is about the defendant’s right to present evidence, not about the State's right to cross-examine witnesses.