Opinion
No. 11-05-00198-CR
Opinion filed June 7, 2007. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 161st District Court, Ector County, Texas, Trial Court Cause No. B-31,380.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
OPINION
A jury convicted appellant, a juvenile who had been certified for trial as an adult, of the offense of capital murder and set his punishment at confinement for life. We affirm. After drinking and smoking marihuana, appellant along with Edward Vega and Amanda Manes (both juveniles) and Michael James Freeman (an adult) were asked to give Joseph Sizemore a ride to his home. Vega agreed to give Sizemore a ride, and appellant, Manes, and Freeman went with them. They made two stops on the way to Sizemore's house. At each stop, Sizemore got out of the vehicle. One stop was to purchase drugs, and the other was to purchase alcohol. When Sizemore got out of the vehicle each time, appellant, Vega, and Freeman talked about jumping Sizemore and robbing him. Freeman's statement shows that they later did just that. Vega stopped the vehicle a short distance from Sizemore's house and told him to walk home from there. As Sizemore was leaving, appellant got a bat from the trunk and told the others that he was going to "get" Sizemore with it. Freeman had his back to them, but he heard the bat hit Sizemore. He saw Sizemore lying on the ground, and "he was bleeding all over the place." Manes did not get out of the vehicle; but, from inside the vehicle, she yelled at them to "stop it, stop it." Fearing that someone might have seen them, they drove away. They rented a hotel room and resumed their drinking. Sizemore later died. A part of appellant's trial strategy was to show that Manes was an accomplice witness and that, as an accomplice witness, corroboration of her testimony would be required. Appellant points out that Manes had testified that she had seen appellant hit Sizemore with the bat and that she was the only one who was at the scene of the crime who was not charged with any offense in connection with the killing. The State had made appellant aware of a letter the State had received from Larry Lynn Cockerham. Cockerham claimed that he had a conversation in the Ector County Jail with Freeman and that Freeman had said that he was angry with Sizemore because Sizemore had shown an interest in Manes who was appellant's girlfriend. Cockerham said that Freeman had told him that he could not take that and that he was going to "f — k him up and take his money." In his brief, appellant states that it was his intent to call Freeman as a witness and ask him if he had told Cockerham that Manes knew of his intent to hurt Sizemore. Appellant argues in his brief that, if Freeman denied it, he was going to call Cockerham as a witness (or use a video of his statement) to impeach Freeman. Appellant presents two points of error. First, he argues that the trial court erred when it refused to order the Ector County District Attorney's Office to offer use immunity to Freeman. In his second point, he maintains that the Ector County District Attorney's Office was guilty of prosecutorial misconduct in timing Freeman's guilty plea so that it would not occur until after appellant's trial. Further, appellant takes the position that Freeman should not have been allowed to assert his Fifth Amendment privilege during appellant's trial. Appellant argues that, if Freeman can assert the privilege, then he is denied his Sixth Amendment right of confrontation. "Use immunity" is within the discretion of the prosecutor. Graham v. State, 994 S.W.2d 651, 656 (Tex.Crim.App. 1999); Alonzo v. State, 67 S.W.3d 346, 360 (Tex.App.(Waco 2001), pet. dism'd, 158 S.W.3d 515 (Tex.Crim.App. 2005). We know of no authority, nor have we been cited to any, that would require the trial court to order the offer of "use immunity" to one who asserts, or who might assert, a Fifth Amendment privilege. We decline to fashion such a rule. Appellant's first point of error is overruled. Even if the second point is preserved for review, the district attorney was not guilty of prosecutorial misconduct in the timing of the plea. Freeman could have asserted his privilege against self-incrimination either before or after his plea was entered. It made no difference as far as Freeman's assertion of his privilege against self-incrimination was concerned when the plea took place. Palomo v. State, 925 S.W.2d 329, 334 (Tex.App.(Corpus Christi 1996, no pet.). Furthermore, one's privilege against self-incrimination trumps an accused's rights under the Sixth Amendment. Bridge v. State, 726 S.W.2d 558, 567 (Tex.Crim.App. 1986); Delrio v. State, 866 S.W.2d 304, 306 (Tex.App.-Houston [14th Dist.] 1993, pet. ref'd). Appellant's second point of error is overruled. The judgment of the trial court is affirmed.
Appellant has based his statement of the case on facts as taken from Freeman(s voluntary statement. For purposes of this appeal, we will accept those facts as true.
See U.S. CONST. amend. V.