Toni D. Kale v. The State of Texas--Appeal from County Court at Law No 2 of Smith County

NO. 12-05-00051-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TONI D. KALE, APPEAL FROM THE

APPELLANT

V. COUNTY COURT AT LAW NO. 2 OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

  Toni Kale appeals her conviction for the misdemeanor offense of failure to report a felony. In one issue, she complains that the trial court erred when it overruled her motion to suppress her testimony to a grand jury. We affirm.

Background

A man was badly beaten in Appellant s front yard and eventually died. Appellant s tire iron was used to beat the man, and her garden hose was used to clean the blood from the driveway. Appellant told the investigating officer that she did not witness the assault and that the police were already on the way by the time she learned what had happened. A grand jury was convened, and Appellant testified to the same version of events before the grand jury.

The State charged Appellant with the misdemeanor offense of failure to report a felony. See Tex. Pen. Code Ann. 38.171 (Vernon 2005). Prior to trial, Appellant filed a motion to suppress her testimony before the grand jury. The trial court denied her motion, and Appellant pleaded guilty as charged. The trial court assessed punishment at three hundred days of confinement and a fine of $412.00. This appeal followed.

Grand Jury Testimony

Appellant asserts that her grand jury testimony should have been excluded because she did not formally waive her Fifth Amendment rights before testifying to the grand jury. Appellant concedes that the prosecutor read her the recitation of rights contained in article 20.17, Texas Code of Criminal Procedure, and obtained her signature on a document listing those rights. Calling it not clearly established, Appellant essentially concedes that no rule, statute, or case requires that the prosecutor obtain a waiver before a person testifies to the grand jury. Rather, Appellant notes that Texas has been at the forefront of innovations in criminal law and suggests that prosecutors are already giving such warnings. On this basis, Appellant argues that the trial court erred in not suppressing her statements to the grand jury.

It has long been the law in Texas that a person who appears before a grand jury must be warned of her right to refuse to answer questions if the answers would be self incriminating. See e.g., Allen v. State, 80 Tex. Crim. 70, 188 S.W. 979, 979 (Tex. Crim. App. 1916). Current Texas law provides that an accused or suspected person who appears before a grand jury must be given several warnings orally, including that her testimony is under oath, that she has the right to refuse to answer questions if the answer would incriminate her, and that she has a right to a lawyer. Tex. Code Crim. Proc. Ann. art. 20.17 (c)(1 6) (Vernon 2005).

There is no requirement that a waiver be obtained before a witness gives testimony before a grand jury. Indeed, on several occasions the Supreme Court has declined to hold that the Constitution requires that a person must even be advised of her right to decline to make incriminating statements when summoned before a grand jury. See United States v. Wong, 431 U.S. 174, 179 80, 97 S. Ct. 1823, 1826 27, 52 L. Ed. 2d 231 (1977); United States v. Washington, 431 U.S. 181, 186, 97 S. Ct. 1814, 1818, 52 L. Ed. 2d 238 (1977); United States v. Mandujano, 425 U.S. 564, 582 n.7, 96 S. Ct. 1768, 1779 n.7, 48 L. Ed. 2d 212 (1976).1

A waiver must be obtained before a custodial interrogation. See Miranda v. Arizona, 384 U.S. 436, 444 45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966); Tex. Code Crim. Proc. Ann. art. 38.22 2(b), 3(a)(2) (Vernon 2005). But individuals in custody have broader rights than do witnesses before a grand jury. For example, a person in custody may refuse to answer any question while a witness before a grand jury may only refuse to answer a question if the answer might incriminate her. See Mandujano, 425 U.S. at 572, 96 S. Ct. at 1774.

There is anecdotal evidence, as Appellant points out, that some prosecutors have obtained a waiver before a person gave grand jury testimony. See generally Cerda v. State, 10 S.W.3d 748 (Tex. App. Corpus Christi 2000, no writ); Andino v. State, 645 S.W.2d 615 (Tex. App. Austin 1983, no writ). But these decisions did not create a waiver requirement or establish an exclusionary rule when a waiver is not obtained. Appellant does not claim that she was in custody, and the requirement of a formal waiver present in article 38.22 for custodial interrogations is conspicuously absent from article 20.17. The law simply does not require a witness to waive any rights before giving grand jury testimony.2 We decline to create such a requirement. We overrule Appellant s sole issue.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1 The court in Mandujano acknowledged that federal prosecutors warn targets of their rights pursuant to the Fifth Amendment as a matter of policy. See id.; see also U.S. Dept. of Justice, United States Attorneys Manual 9 11.151 (2002) (Current version). The failure to offer these warnings has, at least once, caused the suppression of grand jury testimony. United States v. Jacobs, 547 F.2d 772, 774 76 (2d Cir. 1976) (Pursuant to the court s supervisory powers, the court suppressed grand jury testimony because the federal prosecutor did not follow Second Circuit practice of providing a warning to a target before grand jury testimony. The court noted that its decision was to have no prospective application as precedent for the District Courts on the constitutional issue. ); but see United States v. Williams, 504 U.S. 36, 47, 112 S. Ct. 1735, 1742, 118 L. Ed. 2d 352 (1992) ( Because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such supervisory judicial authority exists. ).

2 It is not clear that Appellant waived any right at all. Her testimony, which the State apparently did not believe, was basically exculpatory. Appellant has not identified, and we could not see, any place in the record where she was forced to answer a question that incriminated her.