Green v. State
Green v. State
Opinion of the Court
This is an appeal from a conviction by a jury of murder. The jury assessed punishment at 25 years confinement in the Texas
On December 14, 1981, witnesses saw a man stagger and fall , onto a sidewalk in Dallas, thereafter dying from a gunshot wound to the neck. Appellant went through the decedent’s pockets, removed his wallet, and gave a boy ten dollars. On January 4, 1982, in response to calls from police requesting that she come in to take a polygraph test, appellant came to police headquarters. When she arrived and was asked if she was there to take the polygraph test, she answered, “No, I am here to confess.” She stated in her confession that she shot Mozell Harris, took his wallet after he fell, and gave a boy ten dollars.
During the guilt/innocence phase of trial, appellant testified for the limited purpose of the Jackson v. Denno
Appellant urges two grounds of error, with no challenge to the sufficiency of the evidence. In her first ground, appellant contends that the court erred in overruling her objection to the State’s improper comment during jury argument on her failure to testify. Appellant argues that she did not testify at trial, but that she took the witness stand for the express, limited purpose of the Jackson v. Denno hearing to determine the voluntariness of the statement she gave police. We disagree.
The protections provided by Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and codified in TEX.CODE CRIM.PRO.ANN. art. 38.22, sec. 6 (Vernon 1979), against forcing an accused to choose between asserting one constitutional right and surrendering another constitutional right against self-incrimination, do not apply where appellant chooses to conduct the Jackson v. Denno hearing in the jury’s presence. Thus, if the hearing is conducted outside the jury’s presence, cross-examination of the accused is limited to the voluntariness of the statement and the accused cannot be compelled to testify at trial. However, if the accused foregoes the constitutional and statutory protections by testifying in front of the jury at the guilt/innocence stage of trial, he has waived his right against self-incrimination and is subject to unlimited cross-examination on all relevant issues. Myre v. State, 545 S.W.2d 820, 825 (Tex.Cr.App. 1977) states:
[A]n accused may not take the stand before the jury for the limited purpose of contesting the voluntariness of his confession. If he testifies before the jury he is subject to cross-examination the same as all other witnesses.
In the instant case appellant was not faced with the “intolerable choice” as in Simmons v. United States, supra, of giving up her constitutional right against self-incrimination in order to assert her constitutional right to challenge the volun-tariness of her confession. She could have maintained the constitutional and statutory protections afforded by conducting the hearing outside the jury’s presence. By choosing to testify in front of the jury, appellant waived her right against self-incrimination and her testimony was not for a limited purpose. Therefore, the prosecutor’s argument was not a comment on appellant’s failure to testify because she did testify, and her silence as to other matters could be used against her.
The first ground of error is overruled.
The record reflects that she voluntarily came to police headquarters, that she was given a Miranda
The judge at the Jackson v. Den-no Hearing is the sole judge of - the weight and credibility of the witnesses. He may believe or disbelieve all or any part of any witness’ testimony. Harville v. State, 591 S.W.2d 864 (Tex.Cr.App. 1979). We hold that under the totality of circumstances the evidence supports the trial court’s finding that appellant’s confession was freely and voluntarily given after being apprised of her rights.
The second ground of error is overruled.
The trial court’s judgment is affirmed.
. This appeal was abated in order to permit the trial court to make findings of fact in compliance with TEX. CODE CRIM.PRO.ANN. art. 38.-22, sec. 6 (Vernon 1981). The findings have now been made.
. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.