Court of Appeals of Texas, Fifth District, DallasJan 11, 2011
No. 05-09-00792-CR (Tex. App. Jan. 11, 2011)

No. 05-09-00792-CR

Opinion Filed January 11, 2011. DO NOT PUBLISH Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F91-23236-UVRY.

Before Justices BRIDGES, O'NEILL, and RICHTER.


Opinion By Justice O'NEILL.

Appellant Charles Michael Johnson appeals his jury conviction for unlawful possession with intent to deliver cocaine. After the jury found appellant guilty of the offense, the trial court assessed punishment at ten years' confinement. In two points of error, appellant contends (1) his trial was unfair because the jury was not given an option on the verdict form to find him not guilty, and (2) the trial court coerced him to testify at the punishment phase in violation of his Fifth Amendment right to remain silent. For the following reasons, we remand for a new hearing on punishment only. At trial, the State presented evidence that in 1991, Dallas police were serving an arrest warrant on a suspect at a house in a high crime area in South Dallas. As police were looking for the suspect, appellant entered, saw police, and tried to hide something behind his back. When appellant started to walk out of the house, police grabbed him and pulled him back into the house. He had been holding a baggie containing seventy-five individual rocks of cocaine. According to the State's expert witness, the amount found and its packaging indicated the cocaine was for resale. Appellant was arrested for possession with intent to deliver cocaine in an amount less than twenty-eight grams. After his arrest, appellant was released on bond. When he did not show up for three court dates, his bond was forfeited, and a warrant was issued for his arrest. Eighteen years later, he was finally arrested in Florida. The jury was charged on both possession with intent to deliver the cocaine and the lesser-included offense of possession. The charge instructed the jury it could only find appellant guilty of either offense if it unanimously found beyond a reasonable doubt that appellant committed that offense. The jury was specifically charged that it was required to find appellant not guilty if it had reasonable doubt as to appellant's guilt. However, the verdict form contained spaces to (1) find appellant guilty of possession with intent to deliver, (2) find appellant guilty of possession, or (3) find appellant guilty. Thus, there was no "not guilty" form. According to appellant, this error caused him egregious harm. We disagree. Verdict forms are part of the trial court's charge and therefore errors that were not raised in the trial court may be raised for the first time on appeal. Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010). However, as with all charge error, if a defendant fails to object, to obtain a reversal, the error must be so egregious and create such harm that the defendant did not have a fair and impartial trial. Id. A defendant must suffer actual, rather than merely theoretical, harm from jury charge error. Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Errors that result in egregious harm are those that affect "the very basis of the case," "deprive the defendant a valuable right," or "vitally affect a defensive theory." Id. Here, the jury instructions specifically and clearly informed the jury that it was required to find appellant not guilty if the State failed to meet its burden of proof. However, the verdict form contained spaces for the jury to find appellant guilty of two specific offenses, the greater offense of possession with intent to deliver and the lesser offense of possession, and also a place to find appellant generically "guilty." We believe this final option was a clear typographical error, omitting the word "not" before the word "guilty." We also are confident the jury would have understood the error to be typographical. Further, the jury found appellant guilty of the greater offense of possession with intent to deliver, suggesting they were not considering a not guilty verdict. We conclude appellant did not suffer egregious harm as a result of the error. See Render v. State, 316 S.W.3d 846, 854 (Tex. App.-Dallas 2010, pet. ref'd) (defendant not egregiously harmed by omission of "not guilty" verdict form). We resolve the first issue against appellant. In his second issue, appellant contends the trial court infringed on his Fifth Amendment right to remain silent at sentencing. After the jury found appellant guilty, appellant elected for the trial court to assess punishment and a punishment hearing followed. After the State rested on punishment, appellant requested the trial court to take judicial notice of the pre-sentence report. The trial court asked, "anything else from the defense." The following then occurred:

[COUNSEL]: No your honor. Defense rests.
[TRIAL COURT]: Your client doesn't want to testify?
[COUNSEL]: No, Your Honor.
[TRIAL COURT]: Is that right, sir?
[COUNSEL]: If you want to testify, I will put you up there.
[TRIAL COURT]: In all candor, I would kind of like to know what he's been doing for the last eighteen years.
[COUNSEL]: Okay.
[TRIAL COURT]: Come to the front of the courtroom.
Appellant was then sworn in as a witness and testified regarding his actions for the previous eighteen years, establishing he had essentially stayed out of trouble. On cross-examination, the State asked appellant about the offense. Appellant claimed the substance he possessed was not actually cocaine. When the trial judge thought appellant was being untruthful about the offense, he personally began questioning appellant and accused him of trying to "lay a fly trap" on him. After the defense rested (for the second time), the trial court stated that, although appellant had stayed out of trouble after he fled, he was assessing punishment at ten years' confinement because he could not reward someone for running and because he had lied under oath. Appellant asserts the trial court's actions, after he rested and informed the trial court he did not wish testify, improperly influenced him to testify in violation of his right to remain silent. We agree. The Fifth Amendment prevents a person from being compelled to be a witness against himself in any criminal matter. Chapman v. State, 115 S.W.3d 1, 5 (2003). This right extends to the punishment phase. Mitchell v. United States, 526 U.S. 314, 327 (1999). A defendant's right to remain silent and not testify at trial must be expressly waived. Birdsong v. State, 82 S.W.3d 538, 542-48 (Tex. App.-Austin 2002, no pet.). Therefore, failing to object is not alone sufficient to waive this complaint for appellate review. Birdsong, 82 S.W.3d at 544; see also Carroll v. State, 42 S.W.3d 129, 131 (Tex. Crim. App. 2001) (reversing because appellant did not voluntarily waive right to remain silent at punishment phase). The question then is whether the record, when viewed in its entirety, shows appellant knowingly, voluntarily, and intelligently waived his right to remain silent. See Carroll, 42 S.W.3d at 132; Bryan v. State, 837 S.W.2d 637, 643 (Tex. Crim. App. 1992), abrogated on other grounds by Trevino v. State, 991 S.W.2d 849 (Tex. Crim. App. 1999); Birdsong, 83 S.W.2d at 544. A defendant's voluntarily going to the witness stand and answering questions may, in some circumstances, be sufficient to establish a knowing and voluntary waiver of the right to remain silent. See, e.g., Chavez v. State, 508 S.W.2d 384, 386 (Tex. Crim. App. 1974). However, under the circumstances presented here, we conclude appellant's act of going to the witness stand and answering questions does not establish waiver. Trial counsel and appellant had presumably already discussed whether appellant should testify and decided appellant should not. Counsel informed the trial court two times that appellant was not going to testify, the first time by resting, the second time expressly. The trial court nevertheless proceeded — informing appellant that he wanted to hear his testimony. When trial counsel acquiesced by saying "okay," it was the trial court that called appellant to the stand. Appellant complied. Viewing this record, we cannot conclude appellant knowingly and voluntarily waived his right to remain silent. Because the error implicated a federal constitutional right, we must reverse unless we can conclude the error was harmless beyond a reasonable doubt. Here, one of the trial court's stated reasons for assessing a ten-year sentence was that the trial court believed appellant had lied when he testified at punishment. While the trial court may have had other reasons for assessing the sentence, we cannot conclude the error was harmless beyond a reasonable doubt. See Carroll v. State, 68 S.W.3d 250, 253 (Tex. App.-Fort Worth 2002, no pet.) (reversing conviction when trial court coerced defendant to testify at punishment and then relied on testimonial lies in assessing punishment). We resolve the second issue in appellant's favor and remand for a new punishment hearing. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West 2006)