I'm trying an aggravated sexual assault of a child case where the defendant testified during guilt/innocense that he did not commit the crime. Before the defendant testified at punishment, the defense attorney filed a motion asking the court to prohibit the State from questioning the defendant about his guilt. The defense claimed that such questions would force the defendant to chose between his right to appeal (because an admission of guilt waives most issues on appeal) and his 5th amendment right (because if he didn't testify the State could argue he's not remorseful) ... and the judge agreed! The defendant testified on direct that he "respected the jury's verdict." I was not allowed to ask him anything about his guilt or about his denials to the jury during guilt/innocence. Am I missing some new law or something? I effectively had no cross at all. Has anyone else encountered this?

Sounds outrageous. Your defendant's claim has been rejected many times. Vaughn v. State
931 S.W.2d 564, 567 (Tex. Crim. App. 1996).
Felder v. State, 848 S.W.2d 85, 99 (Tex. Crim. App. 1992); Cagle v. State, 23 S.W.3d 590, 592 (Tex.App.-Fort Worth 2000, pet. ref'd).

Hard to think of anything that can be done about it. A cross-appeal has little hope. See 43A Tex. Practice � 43.244 (State Must Be Able to Implement a Decision in Its Favor). Maybe if you show your judge the Felder/Vaugn opinions this won't happen again.

BTW, not altogeather clear what a defendant who confesses his guilt at punishment waives. See 43A TEX PRAC � 42.293 (discussing Leday v. State
983 S.W.2d 713 (Tex. Crim. App. 1998)).

I gave the judge the Vaughn v. State opinion but he said it didn't apply in my case because the defendant did object, whereas in Vaughn the issue was whether counsel was ineffective for failing to object.

I have never heard of this evidence being excluded during punishment. This is a critical part of a cross exam of a defendant. If he doesn't admit the crime, how can he be rehabilitated? And the liklihood of rehabilitation is always an issue at punishment.

I echo the sentiment of "outrageous." One of the things I enjoy about this board and, for that matter, TDCAA conferences in general is that just when you think your jurisdiction has the most anti-State or eccentric judge, you hear a story like this about a judge in another county. I agree with my colleague's advice: show your judge the case law and diplomatically suggest that he re-think his position. Now that one defense attorney has pulled this stunt, the flood gates are open, and it will become commonplace among defense motions. Good luck. And by the way, keep your judge away from my judges at any upcoming judicial conferences.

In Crampton v. Ohio, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971) vacated on other grounds, 408 U.S. 941, 92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972), the United States Supreme Court addressed a defendant's claim that his right against self-incrimination was unconstitutionally burdened by the unitary trial procedure utilized by the State of Ohio. The defendant wished to testify on the issue of punishment, but could not do so without also surrendering his right against self-incrimination as to guilt-innocence. The Court noted that the criminal legal process is "replete with situations requiring 'the making of difficult judgments' as to which course to follow." Crampton, 402 U.S. at 213. The Court then stated:

The narrow question left open is whether it is consistent with the privilege [Fifth Amendment right against self-incrimination] for the State to provide no means whereby a defendant wishing to present evidence or testimony on the issue of punishment may limit the force of his evidence (and the State's rebuttal) to that issue. We see nothing in the history, policies, or precedents relating to the privilege which requires such means to be available.

* * *

It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination.

* * *

We conclude that the policies of the privilege against compelled self-incrimination are not offended when a defendant in a capital case yields to the pressure to testify on the issue of punishment at the risk of damaging his case on guilt.


Crampton, 402 U.S. at 213-217.

See Also Cantu v. State, 738 S.W.2d 249 (Tex.Crim.App. 1987).

It seems that your judge has attempted to overrule precedent from both the Supreme Court and the Court of Criminal Appeals.

I hope this helps if he tries it again.

Great stuff, Sammy! I'm going to print out your post and place it in my trial notebook.