Nash, Ernest Earl v. The State of Texas--Appeal from 263rd District Court of Harris County

Affirmed and Memorandum Opinion filed May 17, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01157-CR

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 ERNEST EARL NASH, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 904,038

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M E M O R A N D U M O P I N I O N

Appellant, Ernest Earl Nash, challenges his conviction for possession of cocaine. On appeal, appellant asserts the trial court erred by (1) requiring him to testify after he asserted his Fifth Amendment right not to incriminate himself, and (2) excusing a witness who asserted her Fifth Amendment right not to incriminate herself. We affirm.

I. Factual and Procedural Background

On February 28, 2002, Houston police Sergeant J.R. Chase and Officer Steven Murdock responded to a call at a Motel 6 in northwest Houston. After they completed the call, Sergeant Chase saw un unoccupied car with its motor running. There was a female crouched down in the passenger seat. The driver of the car, Yvonne Goodnight, was in the motel office paying for a room. Sergeant Chase went to the motel office and asked Goodnight to step outside and speak with him. He asked Goodnight if she and her companion were prostitutes, and she said, Ayes.@ Sergeant Chase obtained Goodnight=s written consent to search her room.

Goodnight unlocked the door to the motel room for Sergeant Chase and Officer Murdock. Appellant was lying on the bed naked. The officers told appellant to stand up and put on some pants. Appellant stood up, kicked the pair of pants at his feet into a pile of clothes, and put on another pair of pants from beneath the pile. The officers found cocaine in the pair of pants appellant kicked into the pile.

Appellant was charged by indictment with possession of cocaine. Appellant pleaded Anot guilty,@ and the jury found appellant guilty as charged in the indictment. The trial court assessed punishment at four years in the Texas Department of Criminal Justice, Institutional Division.

II. Issues and Analysis

Did the trial court err by requiring appellant to testify after he asserted his Fifth Amendment right not to incriminate himself?

In his first issue, appellant asserts the trial court erred by requiring him to testify after he asserted his Fifth Amendment right not to incriminate himself. Appellant argues that the trial court should not have ordered him to testify on cross-examination about his prior state-jail felony convictions for possession of cocaine.

On direct examination, appellant=s trial counsel asked appellant if he had been convicted of a felony. Appellant stated that he had, but when asked for what, he said that he was not convicted, but pled Ano contest,@ and served 27 days in jail. On cross-examination, the State asked appellant about his criminal record, and appellant said, AI take the Fifth. I don=t talk about my criminal record.@ The trial court ordered appellant to answer the question. Appellant denied having been convicted of a felony because, he reasoned, he pled Ano contest.@ The State then offered certified copies of judgments for three prior state-jail felony convictions for possession of cocaine. Appellant=s trial counsel affirmatively stated that he had no objection to the admission of that evidence. Appellant then testified that he pled Ano contest@ to those charges and served 27 days in jail.

Appellant did not object when the trial court required him to testify about his prior felony convictions on cross-examination. Presuming without deciding that appellant preserved this issue for appellate review, we conclude that appellant waived his Fifth Amendment privilege with respect to his prior convictions. Because appellant voluntarily took the stand and testified on direct examination about his prior felony convictions, he was precluded from asserting his Fifth Amendment privilege to avoid answering questions about those convictions during cross-examination. See Hernandez v. State, 506 S.W.2d 884, 886 (Tex. Crim. App. 1974). Accordingly, we overrule appellant=s first issue.

Did the trial court err by excusing a witness who invoked her Fifth Amendment right not to incriminate herself without inquiring into the basis for her assertion of that right?

In his second issue, appellant asserts the trial court erred by excusing Goodnight from testifying when she invoked her Fifth Amendment right not to incriminate herself without first determining whether any testimony she might have given would have incriminated her. Appellant complains this procedure denied him his Sixth Amendment right to the compulsory process of a witness and his due process right to a fair trial. Appellant argues that the trial court should have inquired into the basis for Goodnight=s assertion of her Fifth Amendment privilege, asked whether there were any charges pending against her, and, if so, whether those cases were final.

Appellant=s trial counsel attempted to call Goodnight as a defense witness. Her lawyer informed the trial court on the record that Goodnight wanted to assert her Fifth Amendment privilege and not testify. Goodnight was called to the witness stand outside the presence of the jury. The trial court asked Goodnight if she intended to assert her Fifth Amendment privilege and if she would refuse to answer any questions by either the defense or the State in this case. Goodnight answered affirmatively to both questions. At that point, the jury was brought into the courtroom, and appellant took the stand to testify.

The record reveals that appellant did not object to the trial court=s failure to inquire into the basis of Goodnight=s assertion of her Fifth Amendment privilege to determine whether she would be incriminated. Presuming without deciding that appellant preserved this issue for appellate review, we conclude that the trial court was not required to inquire into the basis of Goodnight=s assertion of her Fifth Amendment privilege. When a witness=s refusal to testify on the grounds that to do so might incriminate her is based on the advice of the witness=s attorney, the trial court is not required to make any further determination. Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972). Although Goodnight did not expressly state that she was acting on the advice of her attorney, we conclude that she asserted her Fifth Amendment privilege based on his advice because he was present and participated in the proceedings. Accordingly, we overrule appellant=s second issue.

Having overruled both of appellant=s issues on appeal, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 17, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).