Can a Person Be Compelled to Be a Witness Against Himself In Texas ?

The Fifth Amendment to the United States Constitution prevents a person from being "compelled in any criminal case to be a witness against himself." U.S.CONST., Amdt. 5; Mitchell, 526 U.S. at 327, 119 S. Ct. at 1314. In Mitchell, the Supreme Court held that the sentencing proceeding in a federal criminal prosecution is considered to be part of the "criminal case" so that the Fifth Amendment's guarantee of the right to remain silent applies equally to that phase of a criminal case. See Mitchell, 526 U.S. at 327, 119 S. Ct. at 1314. The Supreme Court generally rejected the idea that entry of a guilty plea completes the incrimination of the defendant, thereby extinguishing the privilege. Mitchell, 526 U.S. at 327, 119 S. Ct. at 1313-14. So long as sentence has not yet been imposed, the defendant may have a legitimate fear of adverse consequences from further testimony. Id., 526 U.S. at 327, 119 S. Ct. at 1314. Any effort by the government to compel the defendant to testify against his will at the sentencing hearing would contravene the Fifth Amendment. Id.; Estelle, 451 U.S. at 462, 101 S. Ct. at 1872. Although the Supreme Court only recently clarified this issue in Mitchell, it has long been the law in Texas that an adult defendant has a separate and distinct Fifth Amendment privilege against self-incrimination at the punishment phase of his bifurcated trial, and therefore, the mere finding of guilt does not terminate the privilege against self-incrimination. See Wilkens v. State, 847 S.W.2d 547, 553 (Tex.Crim.App. 1992)(stating this rule); Brumfield v. State, 445 S.W.2d 732, 737-41 (Tex.Crim.App. 1969)(adopting this rule following 1965 enactment of Article 37.07, which adopted bifurcated trial system applicable to trials of all felonies and misdemeanors punishable by imprisonment). Thus, the Fifth Amendment applies with equal force to the sentencing phase of a case even if the defendant waived his right to remain silent and testified during guilt-innocence. See: Beathard v. State, 767 S.W.2d 423, 431-32 (Tex.Crim.App. 1989)(trial court erred in refusing to give the jury a "no adverse inference" instruction during punishment phase; even though defendant testified during guilt-innocence, he retained right to remain silent during punishment phase); Brumfield, 445 S.W.2d at 741 (defendant's constitutional right against self-incrimination violated where State called defendant to testify at punishment phase regarding prior convictions; defendant's waiver of right at guilt-innocence by giving testimony on merits did not constitute waiver of right at punishment phase). A different rule, however, applies when the adult defendant enters a guilty plea in a non-capital felony case because the trial becomes a unitary proceeding, and thus, a separate punishment phase does not exist. In such a case, a written waiver of the Fifth Amendment right against self-incrimination made in conjunction with the guilty plea applies to the entire criminal adjudication proceeding, including the assessment of punishment. Carroll v. State, 975 S.W.2d 630, 632 (Tex.Crim.App. 1998).