Opinion
NO. 03-14-00409-CR
02-25-2016
Xavier Jevon Reese, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 71766 , HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted appellant Xavier Jevon Reese of the offense of aggravated robbery and assessed punishment at 35 years' imprisonment. The district court rendered judgment on the verdict. In a single point of error on appeal, Reese asserts that he was denied his right to compulsory process when the district court allowed a defense witness to invoke his Fifth Amendment privilege against testifying. We will affirm the judgment of conviction.
BACKGROUND
The jury heard evidence that on August 15, 2013, Daniel Ortiz was robbed outside his home in Killeen by three individuals, later identified as Reese, Michael Robinson, and 16-year-old T.B. Ortiz testified that on the day in question, he was driving his mother's Cadillac and returning home when he noticed three people "walking down the street" near his house. Ortiz explained that when he pulled into his driveway, one of the men approached the car and asked for a cigarette. Ortiz recounted that as he got out of the car, the man "pulled a gun on [him]" and told Ortiz to give him Ortiz's wallet, his keys, and his phone. Ortiz complied. According to Ortiz, the man then got into the Cadillac and drove away. Ortiz then ran inside the house, grabbed his mother's phone and the keys to his own car, and proceeded to get into his car and chase after the Cadillac. During the pursuit, Ortiz testified, he noticed three men inside the vehicle, whom he assumed were the robber and his two companions, and he called 911 and related these events. Eventually, Ortiz explained, the vehicle stopped at an apartment complex, where one of the men—the same man who had robbed him at gunpoint—got out of the vehicle and "started shooting" at Ortiz, firing a total of four shots at him. Ortiz then drove away in the opposite direction. As he did so, Ortiz recounted, he observed a police vehicle drive toward the apartment complex, and Ortiz decided to return to the scene of the shooting in order to provide a statement to the police if needed. Shortly thereafter, the three individuals were apprehended, and Ortiz identified Reese as the man who had robbed him at gunpoint and shot at him.
T.B. pleaded true in juvenile court to engaging in delinquent conduct and received a five-year determinate sentence, but Reese and Robinson were tried together as co-defendants in a consolidated trial. A contested issue during the trial of Reese and Robinson was the identity of the shooter. Although Ortiz had earlier identified Reese as the man who had robbed him at gunpoint and shot at him, during trial he identified Robinson as the shooter instead. In an effort to resolve this conflict in his client's favor, counsel for Reese attempted to call T.B. as a witness and elicit testimony from T.B. that Robinson had been the man with the gun. However, T.B. indicated that he feared incriminating himself during his testimony and invoked his Fifth Amendment privilege not to testify, which the district court allowed him to do following a hearing.
Based on the above and other evidence, the jury found Reese guilty of the offense of aggravated robbery and assessed punishment as indicated above. The district court rendered judgment on the verdict, and this appeal followed.
ANALYSIS
In a single point of error, Reese asserts that the district court denied him his right to compulsory process when he allowed T.B. to exercise his Fifth Amendment privilege not to testify. According to Reese, T.B.'s juvenile proceeding had already been completed prior to the trial of Reese and Robinson and that because T.B. had pleaded true in that proceeding to the State's allegations of delinquent conduct, all additional charges against him had been dismissed. Therefore, in Reese's view, T.B.'s "apprehension of danger of additional charges was not well founded," and the district court abused its discretion in concluding otherwise.
See U.S. Const. amend. V; Ohio v. Reiner, 532 U.S. 17, 20-21 (2001); Hoffman v. United States, 341 U.S. 479, 486-87 (1951).
The Sixth Amendment right to compulsory process is the right of the defendant to offer the testimony of witnesses, and to compel their attendance, if necessary, so that the defendant may present his version of the facts to the jury. A defendant's right to compulsory process is denied when the State "arbitrarily denie[s] him the right to put on the stand a witness who was physically and mentally capable of testifying to events he had personally observed, and whose testimony would have been relevant and material to the defense." However, "an individual's constitutional privilege against self-incrimination overrides a defendant's constitutional right to compulsory process of witnesses." Therefore, a trial court "cannot compel a witness to answer unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken in asserting the privilege, and that the answer cannot possibly tend to incriminate the witness."
See U.S. Const. amend. VI; Washington v. Texas, 388 U.S. 14, 19 (1967).
Washington, 388 U.S. at 23; Ex parte Scarbrough, 604 S.W.2d 170, 173-74 (Tex. Crim. App. 1980); Boler v. State, 177 S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).
Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986); Boler, 177 S.W.3d at 371.
Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim. App. 1984); Boler, 177 S.W.3d at 371.
On appeal, we review a trial court's decision allowing a witness to invoke his Fifth Amendment privilege for an abuse of discretion. A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and principles. We are to uphold the trial court's ruling unless it is "outside the zone of reasonable disagreement." In making its decision, the trial court "'must be governed as much by his personal perceptions of the peculiarities of the case as by the facts actually in evidence.'"
See Walters v. State, 359 S.W.3d 212, 216-17 & n.17 (Tex. Crim. App. 2011); Clark v. State, 947 S.W.2d 650, 654 (Tex. App.—Fort Worth 1997, pet. ref'd); see also Keller v. State, No. 03-13-00501-CR, 2014 Tex. App. LEXIS 12506, at *35 (Tex. App.—Austin Nov. 20, 2014, no pet.) (mem. op., not designated for publication).
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
See Montgomery, 810 S.W.2d at 378-79; Clark, 947 S.W.2d at 654.
Walters, 359 S.W.3d at 215 (quoting Hoffman, 341 U.S. at 486-87).
In this case, Reese asserts that T.B. was mistaken in exercising his Fifth Amendment privilege because he had already been sentenced in his juvenile proceeding and there was no danger of additional charges being filed against him. However, the district court would not have abused its discretion in concluding that T.B.'s invocation of the privilege was justified. In a hearing outside the presence of the jury, a copy of the record of the juvenile proceeding was admitted into evidence. In that proceeding, T.B. was sentenced to a five-year determinate sentence and admonished that at some point prior to his eighteenth birthday, he could be transferred to the state penitentiary to serve the remainder of his sentence. During questioning by Reese, T.B. testified that he had reviewed the record of the juvenile proceeding prior to the hearing and had discussed what had occurred at the proceeding with Reese's counsel. Thus, it would not be outside the zone of reasonable disagreement for the district court to infer that T.B. was aware that he had received a determinate sentence and that there was a possibility that he could be subsequently transferred to the penitentiary upon the State's request. It is well settled that when a juvenile is given a determinate sentence, upon the request of the Texas Juvenile Justice Department (TJJD) to transfer the juvenile to the penitentiary, the trial court is required to hold a hearing and that at that hearing, the trial court has wide latitude and discretion to consider, among other factors, "the experiences and character of the person before and after commitment to [TJJD], the nature of the penal offense that the person was found to have committed, and the manner in which the offense was committed." It would not be outside the zone of reasonable disagreement for the district court to infer that T.B. believed that any answers he provided in his testimony could further implicate him in the robbery, more so than he had already implicated himself by pleading true to the State's allegations, and that such answers might be used against him at a subsequent transfer hearing. As the State observes in its brief, if T.B. had testified, he would have been subject to an extensive cross-examination not only by the State but also by counsel for Robinson, both of whom, the district court could have reasonably inferred, would have had an incentive to undermine T.B.'s credibility by further implicating him in a serious offense—an armed robbery outside an individual's home in which a car had been stolen and the victim had been shot at by one of the perpetrators. Based on T.B.'s admitted involvement in the robbery, it would not be outside the zone of reasonable disagreement for the district court to conclude that T.B. was justified in his apprehension of being further implicated in such a serious crime. On this record, given the "peculiarities of the case" as well as "the facts actually in evidence," we cannot conclude that the district court abused its discretion in allowing T.B. to invoke his Fifth Amendment privilege not to testify.
See Tex. Fam. Code § 54.11(k); In re J. J., 276 S.W.3d 171, 178 (Tex. App.—Austin 2008, pet. denied).
See Walter, 359 S.W.3d at 216-17; see also Barcenes v. State, 940 S.W.2d 739, 747-48 (Tex. App.—San Antonio 1997, pet. ref'd) (concluding that trial court did not abuse its discretion in allowing witness to invoke Fifth Amendment privilege in part because "appellant could not have limited the cross-examination questions that would have been posed by the State had [the witness] testified").
We overrule Reese's sole point of error.
CONCLUSION
We affirm the judgment of the district court.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Field Affirmed Filed: February 25, 2016 Do Not Publish