Anybody else see Lucero v. State, (TA7 October 16, 2002)
It holds that when a defendant is called by defense counsel to testify in the punishment phase of an open plea, the defendant must be warned by the trial court that he doesn't have to testify.
Very strange. Wouldn't the fact that defense counsel has called the defendant negate any concern that the defendant was being *forced* to testify?
I guess this will keep us busy, I'll already got my first of these gems.
OK, that case may be in line for worst opinion of the year. Defendant, as the opinion acknowleges, voluntarily took the witness stand and testified!
The Court refers to Carroll and Mitchell for support, but, as we all well know, in those cases the defendant was forced to testify over the defense attorney's objection.
Hurray for Justice Quinn, who ably explains the whole thing in a concurring opinion (waiver by voluntary testimony). How can two licensed attorney/experienced judges get this sooooooo wrong?
That being said, our plea forms (and the forms in The Perfect Plea) include an express waiver of the privilege against self-incrimination (as to guilt and punishment).
Williamson County, Texas
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