No. 04-06-00354-CR
Delivered and Filed: March 26, 2008. DO NOT PUBLISH.
Appeal from the 218th Judicial District Court, Atascosa County, Texas, Trial Court No. 05-01-0046-CRA, Honorable Donna S. Rayes, Judge Presiding. Affirmed.
Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.
REBECCA SIMMONS, Justice.
Appellant Raul Guerra was convicted by a jury of the felony offense of Engaging in Organized Criminal Activity. Punishment was assessed by the trial court at forty years confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Raul complains that the trial court erred in requiring his brother, Ernest Guerra, to testify in violation of the Fifth Amendment. We affirm the judgment of the trial court.
FACTUAL BACKGROUND
During Raul Guerra's trial on the merits, and outside the presence of the jury, the State informed the trial court that it intended to call Raul's brother Ernest, regarding his and Raul's affiliation with the Mexican Mafia. The trial court noted that Ernest was awaiting sentencing on his conviction for the same alleged offense, and that there was another case "pending that is not dismissed." When Ernest was brought before the bench, he immediately stated, "I want to plead the Fifth." He informed the trial court that he had already talked to his lawyer and had been instructed to assert his Fifth Amendment right to remain silent. The State assured the trial court that its questions to Ernest: "are not involved with him and his opinion and his case or the appeal or the one's (sic) that's not been tried yet. They are dealing with his brother, not him." Based on this representation, the trial court explained to Ernest that the State had the right to ask questions and that he had the right to assert his privilege. The trial court, however, reiterated "[t]hat does not prevent the State from calling you as a witness however." The State called Ernest to the stand and proceeded to question him about a number of topics. Ernest did not assert his Fifth Amendment privilege before the jury, and the defense lodged no objection to his testimony. The State propounded questions to Ernest implicating Raul in the burglaries. FIFTH AMENDMENT RIGHTS
Raul complains that the trial court erred because it allegedly compelled Ernest to testify after he informed the trial court that he wanted to invoke his Fifth Amendment privilege. The Fifth Amendment privilege against self-incrimination is binding upon the states through the Fourteenth Amendment. U.S. CONST. amend. XIV. The Fifth Amendment of the United States Constitution provides in part: "No person . . . shall be compelled in any criminal case to be a witness against himself. . . ." U.S. CONST. amend. V. It is axiomatic that the right against self-incrimination is to prohibit compulsion of testimony which may expose a person to criminal prosecution. This right is not confined to an accused only, but extends to witnesses, in general, in any type of case, civil or criminal, or in proceedings before a grand jury. See Reese v. State, 877 S.W.2d 328, 335 (Tex.Crim.App. 1994). There is little question that Ernest, outside the presence of the jury, asserted his Fifth Amendment right not to testify, but did not before the jury. Defense counsel, however, did not raise any objections to Ernest's testimony, based on either federal or state constitutional violations, either at the hearing outside the presence of the jury or when Ernest testified in front of the jury. Because Raul did not assert, in the trial court, the constitutional objections set forth in his appellate brief, his arguments are not preserved for appellate review. TEX. R. APP. P. 33.1. Thus, we find no error based on the lack of objection made before the trial court. White v. State, 934 S.W.2d 891, 895 (Tex.App.-Fort Worth 1996, no pet.). Accordingly, we affirm the judgment of the trial court.