COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JASON LAMON WOMACK, '
No. 08-01-00134-CR
Appellant, '
Appeal from
v. '
291st District Court
THE STATE OF TEXAS, '
of Dallas County, Texas
Appellee. ' (TC# F00-50402-IMU)
O P I N I O N
After a bench trial, Jason Lamon Womack was convicted of unlawful delivery of cocaine in an amount of less than one gram. Appellant pled true to an enhancement allegation alleging a previous felony offense. The court sentenced Appellant to two years in State Jail. In a single issue, Appellant attacks the trial court=s refusal to allow his defense counsel to make a bill of exception consisting of the testimony of Travis Johnson. Because we find the trial court properly refused interrogation of Johnson after he invoked his Fifth Amendment right to refuse self incrimination, we will affirm.
Background
On the day of his arrest, Appellant was visiting his sister at her house. A confidential informant, Synonda Chambers,[1] approached Johnson, who sat on the front porch of the home. Chambers asked to buy a $50 rock of crack cocaine from Johnson. According to Chambers, Appellant exited the screen porch door and told Johnson it was alright to sell Chambers the cocaine. Johnson completed the drug sale. Appellant denied participating in the transaction.
After the State rested, Appellant=s trial counsel sought to introduce the testimony of co-defendant Johnson. Johnson refused, claiming his Fifth Amendment privilege. Appellant=s counsel stated Johnson had entered into a plea bargain agreement to be heard by the court later that day. Because Johnson could not claim the privilege after his plea was accepted, Appellant sought a continuance so that Johnson would have no protection left and could then testify. The request for continuance was denied. Counsel then asked to make Aa bill of the questions@ he would ask of, and the testimony he would seek to elicit from, Johnson. The trial court responded: AIf you mean to call the witness (Johnson), no.@ Counsel explained that Johnson had been to his office, told him certain facts, and later decided not to Acooperate@ with those facts. Appellant=s counsel acknowledged that Johnson=s attorney was not been present during the alleged conversation. The court refused to allow Counsel to call Johnson to the witness stand and instructed him to call his next witness.
Analysis
Appellant argues that he was prevented from showing that the statements Johnson made to Appellant=s attorney were statements against interest under Texas Rule of Evidence 803(24). Appellant states he was prevented from making this predicate because the trial court would not allow examination of Johnson in order to perfect his bill of exception.
Appellant cites Kipp v. State, 876 S.W.2d 330, 333 (Tex. Crim. App. 1994) for the proposition that the right to make a bill of exception is absolute. Appellant is correct, that not only is he ordinarily allowed to make an offer of proof, but he also has a right to do so in question and answer form. Id. (citing Tex R. Evid. 103(b)). See also Spence v. State, 758 S.W.2d 597, 599 (Tex. Crim. App. 1988), cert. denied, 499 U.S. 932 (1991) (citing former Tex. R. App. P. 52(b)).
The State responds first, that Appellant was afforded the right to make a bill of exception by offer of proof. Although Appellant was not allowed to question Johnson, the trial court did not prevent Appellant from making an offer of proof via trial defense counsel. Defense counsel told the court of his pre-trial encounter with Johnson and that Johnson Adecided not to cooperate with those facts.@ In other words, Johnson told Defense counsel one thing and was now refusing to tell the same story. The State cites Love v. State, 861 S.W.2d 899, 901 (Tex. Crim. App. 1993). Love holds an offer of proof may be accomplished either by counsel's concise statement or question and answer. Id. This argument, however, does not address Appellant=s challenge that he has an absolute right to utilize the question and answer form.
Next the State argues the trial court properly refused questioning of Johnson because he invoked his constitutional privilege against self-incrimination citing Scott v. State, 940 S.W.2d 353, 358 (Tex. App.---Dallas 1997, pet. ref=d). The Dallas court held Athe trial court did not err in disallowing such questioning by way of bill of exception@ under circumstance very similar to ours. Id. Our trial court was similarly faced with Appellant=s right to make his bill by question and answer and Johnson=s right against self incrimination.
Conclusion
We agree with the State and the Dallas court=s opinion that Appellant did not have an absolute[2] right to question Johnson after he properly invoked his Fifth Amendment privilege. See Scott, 940 S.W.2d at 358. The trial court properly protected Johnson=s claimed privilege. At the same time the court did not prevent Appellant from making an offer of proof. An offer of proof can be accomplished in the form of a concise statement by counsel. Tex. R. Evid. 103(b)[3]; Kipp, 876 S.W.2d at 334. See also Warner v. State 969 S.W.2d 1, 2 (Tex. Crim. App. 1998) (offer of proof may be made by question and answer or concise statement of counsel). Appellant=s trial counsel partially completed an offer of proof by his own statements to the court. We see nothing in the trial court=s handling of the Johnson privilege or the bill of exception that prevented Appellant from completing the only viable alternative, an offer of proof by counsel=s concise statement. We hold that under the circumstances presented, the opportunity to make a bill of exception through counsel=s statement in lieu of question and answer is sufficient. The judgment is affirmed.
August 15, 2002
DON WITTIG, Justice
Before Panel No. 5
Larsen, Chew, and Wittig, JJ.
(Wittig, J., sitting by assignment)
(Do Not Publish)
[1] Chambers had worked out her own problems with the police by assisting in over 150 arrests. She was paid more money per transaction when she helped arrest more people. (And because she assisted in the arrest of two suspects, she was paid more.) Usually she earned $50 per arrest and had been paid some $10,000 cash by police.
[2] We would observe that an Aabsolute@ right can only be viewed in context. When two fundamental rights collide and are at odds, the law must carve a careful, narrow course, judiciously preserving the utmost of each principle.
[3] Appellate review of bills of exception and offers of proof were formerly governed by rule Texas Rule of Appellate Procedure 52(b), which is now Rule 33.2. Under the former rule, a transcription of the reporter=s notes showing the offer, whether by concise statement or question and answer, the objections made, and the ruling, when included in the record certified by the reporter, established the nature of the evidence, the objections and the ruling. Under the new rule, no particular form of words is required, though the objection and ruling must still be stated with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 52(a).