Brumfield v. State

The offense is driving while intoxicated; the punishment 60 days in jail, and a fine of $50.00.

We are confronted at the outset with the constitutional right of an accused not to be required to give evidence against himself.

At the hearing on guilt or innocence appellant testified as to his innocence of the offense here charged and nothing else.

After the jury had found him guilty, a hearing was had before the same jury on the question of punishment, as provided by Art. 37.07, of the Vernon’s Ann.Code of Criminal Procedure. At this time the State called appellant to the stand and he was required, over objection, to give evidence against himself as to two prior convictions for the offense of the same nature. Such offenses were not admissible as impeachment when he testified on the merits because they were not felonies nor did they involve moral turpitude.

In Stratman v. State, Tex.Cr.App., 436 S.W.2d 144, we held that it was not error for the State to examine a defendant in regard to his prior convictions by calling him at the punishment phase of his trial when he had testified at the guilt or innocence phase of his trial. But Strat-man is not applicable to the instant case for the following reasons: In Stratman, trial was before the court, not before a jury as in this case. Stratman testified during the guilt or innocence phase of his trial that he had previously been convicted of felonies, whereas here appellant did not testify as to his prior convictions at the guilt or innocence phase of his trial. And Stratman’s prior convictions were admissible for impeachment and were alleged in the indictment for enhancement, while here appellant’s convictions were neither admissible for impeachment nor were they alleged in the information for enhancement. It should be noted that we are not here discussing any admission an accused may make as to prior convictions as a part of his plea to the court.

We reiterate that the question here is that the appellant was called to the witness stand by counsel for the State, over his protest, and then required to give evidence against himself which bore on the punishment to be assessed against him by the jury.

The Supreme Court of the United States has recognized that an accused might not constitutionally be deprived of the right to be heard on one phase of his case for fear of being called upon to incriminate himself at a later hearing. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 2d 1247, and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, clearly illustrate their view.

For the error pointed out, the judgment is reversed and the cause remanded.

WOODLEY, P. J., and ONION, J., concur in the result.

DOUGLAS, J., not participating.