                                   NO. 07-01-0177-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                     APRIL 12, 2002

                          ______________________________


                              ERIC RAMIREZ, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 242nd DISTRICT COURT OF SWISHER COUNTY;

                   NO. B3606-0008; HONORABLE ED SELF, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


       Appellant Eric Ramirez was convicted by a jury of burglary of a habitation and the

commission of the felony offense of sexual assault, and the jury assessed punishment at

37 ½ years confinement and a $5,000 fine. By two issues, appellant challenges his

conviction contending the trial court erred (1) in admitting a portion of his testimony given

during a previous revocation proceeding in violation of his right against self-incrimination,
and (2) in failing to include the lesser included offense of sexual assault in the court’s

charge. Based upon the rationale expressed herein, we affirm.


       Appellant does not challenge the legal or factual sufficiency of the evidence.

Therefore, only the evidence necessary for the disposition of appellant’s issues will be

discussed. On the evening of June 24, 2000, appellant burglarized the victim’s1 home.

After appellant entered the victim’s home and discovered that she was alone, he engaged

in sexual intercourse with her. The victim’s mother, who was away from the home at that

time, did not discover the burglary until the following morning.            During the police

investigation, appellant parked his vehicle adjacent to the victim’s home, which resulted in

his identification and apprehension. After he was arrested, appellant made a voluntary

written statement admitting that he broke into the home; however, he claimed that sex with

the victim was consensual. At the time of arrest, appellant was on probation for a prior

offense whereupon the State filed a motion to revoke his probation. Appellant was

represented by counsel and testified in his own defense at the probation revocation

hearing.


       Testimony from the revocation hearing was admitted at trial. After his prior

testimony was admitted over the objections of defense counsel, appellant again took the

stand in his own defense. The written statements given to police, the testimony from the

revocation hearing, and the testimony appellant gave at trial were consistent. Appellant


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           The victim suffers from mental retardation and at the time of trial was 21 years old.

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stated that he broke into the home with the intent to steal, but denied any intent to commit

sexual assault. He claimed he engaged in consensual sex with the victim, but confirmed

a prior awareness of the victim’s mental retardation.


       By his first issue, appellant contends the trial court erred in admitting a portion of his

testimony given during the prior revocation proceeding in violation of his right against self-

incrimination, irrespective of his taking the stand during the revocation proceeding.

Appellant contends his prior testimony at the revocation hearing was inadmissible at trial

for any purpose. We disagree.


       A timely and reasonably specific objection is required to preserve error for appellate

review. Tex. R. App. P. 33.1(a); Butler v. State, 872 S.W.2d 227, 236 (Tex.Cr.App. 1994),

cert. denied, 513 U.S. 1157, 115 S.Ct. 1115, 130 L.Ed.2d 1079 (1995). Where the alleged

error relates to the admission of evidence, a timely objection must be made stating the

specific ground of objection. Tex. R. Evid. 103(a)(1); Higgins v. State, 924 S.W.2d 739,

745 (Tex.App.–Texarkana 1996, pet. ref’d ). In addition, the objection at trial must comport

with the error complained of on appeal. Goff v. State, 931 S.W.2d 537, 551 (Tex.Cr.App.

1996), cert. denied, 520 U.S. 1171, 117 S.Ct. 1438, 137 L.Ed.2d 545 (1997). Appellant

objected to the admission of his testimony at the probation revocation hearing on the

grounds that it was hearsay and violated his right against self-incrimination, but his

objections were overruled. Here, he contends the trial court erred by admitting the

testimony from the probation revocation proceeding as an exception to the hearsay rule


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under Rule 801(e)(2)(A) of the Texas Rules of Evidence without considering the

implications of admitting such testimony upon his right against self-incrimination contained

in the United States and Texas Constitutions. It is uncertain from his argument whether

appellant contests admissibility as an exception to the hearsay rule applying a balancing-

test weighed against Fifth Amendment implications, or simply presents two separate

objections from the trial court by one hybrid issue. In the interest of justice, we will

consider each possibility.


       Hearsay is defined as an oral or written "statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted." TEX . R. EVID . 801(d); Garcia v. State, 868 S.W.2d 337, 339 (Tex.Cr.App.

1993). Rule 802 provides that "hearsay is not admissible except as provided by statute or

these rules."   However, Rule 801(e)(2)(A) provides that a criminal defendant's own

statements, when being offered against him, are not hearsay. TEX . R. EVID . 801(e)(2)(A);

Trevino v. State, 991 S.W.2d 849, 853 (Tex.Cr.App. 1999). A party's own statements are

not hearsay and they are admissible on the theory that a party is estopped from

challenging the fundamental reliability or trustworthiness of his own statements. Trevino,

991 S.W.2d at 853. The rule recognizes that the out-of-court statements of a party differ

from the out-of-court statements of non-parties and raise different evidentiary concerns.

Id. Here, the statements offered at trial against appellant were taken from his own sworn

testimony given at a prior proceeding and were therefore a hearsay exclusion; thus, the

trial court did not err in overruling appellant’s hearsay objection.

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       However, not all statements of a criminal defendant are admissible. For example,

a statement may not be used as evidence against a defendant unless it was voluntarily

made and free from coercion. See Smith v. State, 547 S.W.2d 6, 8 (Tex.Cr.App. 1977).

Also, a statement may be admissible for a limited purpose. See Braggs v. State, 951

S.W.2d 877, 883 (Tex.App.--Texarkana 1997, pet. ref’d). A defendant’s own statement

may be admissible at one phase of a proceeding, but not be admissible during the

guilt/innocence phase. See Nelson v. State, 765 S.W.2d 401, 403 (Tex.Cr.App. 1989).

In addition, when testimony is given for a limited purpose such as a suppression hearing,

it may not thereafter be admitted against the defendant at trial on the issue of guilt.

Brumfield v. State, 445 S.W.2d 732, 737 (Tex.Cr.App. 1969). However, none of these

instances of non-admissibility apply here.


       The Fifth Amendment privilege against self-incrimination, which is binding upon the

states through the Fourteenth Amendment, provides in part: "[n]o person . . . shall be

compelled in any criminal case to be a witness against himself. . . ." U.S. CONST . amend.

V; Reese v. State, 877 S.W.2d 328, 335 (Tex.Cr.App. 1994). A concurrent right exists

under the Texas Constitution. TEX . CONST . art. I, §10. It is axiomatic that the right against

self-incrimination is to prohibit compulsion of testimony which may expose a person to

criminal prosecution. Reese, 877 S.W.2d at 335.


       However, a criminal defendant's right to not give evidence against himself is subject

to waiver if done knowingly, voluntarily, and intelligently, and might be done by conscious


                                              5
decisions of trial strategy. See Brown v. State, 617 S.W.2d 234, 236 (Tex.Cr.App. 1981);

Taylor v. State 474 S.W.2d 207, 211 (Tex.Cr.App. 1971). When a criminal defendant

voluntarily takes the stand to testify in his own defense, he waives his privilege against self-

incrimination. See Nelson, 765 S.W.2d at 403.


       Appellant cites Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d

424 (1999), Carroll v. State, 42 S.W.3d 129 (Tex.Cr.App. 2001), and Crosson v. State, 36

S.W.3d 642 (Tex.App.–Houston [1st Dist.] 2000, no pet.) in support of his argument that

the trial court’s decision to admit his prior testimony over counsel’s objection violated his

right against self-incrimination; however, as the State correctly points out, the cases upon

which appellant relies are distinguishable from the instant case. Appellant does not cite

any cases that involve the admission of testimony from a prior revocation hearing where

a defendant voluntarily testified on his own behalf and we have found none.


       Appellant does not contend that his testimony at the probation revocation hearing

was offered for a limited purpose or was either involuntary or coerced. To the contrary, the

reporter’s record of the underlying proceeding demonstrates that the testimony was given

by appellant while under direct examination by his own counsel. Accordingly, appellant

waived his privilege against self-incrimination when he took the stand to testify in his own

defense at the probation revocation hearing. Appellant’s first issue is overruled.


       By his second issue, appellant contends the trial court erred in refusing to submit

to the jury a charge on the lesser included offense of sexual assault. To determine if a

                                               6
defendant is entitled to a lesser included offense instruction, a two prong test applies: (1)

the lesser included offense must be included within the proof necessary to establish the

offense charged, and (2) some evidence must exist in the record that would permit a jury

rationally to find that if the defendant is guilty, he is guilty only of the lesser included

offense. Lofton v. State, 45 S.W.3d 649, 651 (Tex.Cr.App. 2001). A defendant's own

testimony that he committed no offense, or testimony which otherwise shows that no

offense occurred at all, is not adequate to raise the issue of a lesser included offense. Id.

at 652. However, if a defendant either presents evidence that he committed no offense

or presents no evidence, and there is no evidence otherwise showing that he is guilty only

of a lesser included offense, then a charge on a lesser included offense is not required.

Bignall v. State, 887 S.W.2d 21, 24 (Tex.Cr.App. 1994). The evidence must establish that

if a defendant is guilty, he is guilty only of the lesser included offense. Lofton, 45 S.W.3d

at 652.


       Appellant was charged with burglary of a habitation with the commission of a sexual

assault. During trial, appellant testified that when he broke into the habitation, he “went in

to steal something . . . .” He also testified that the victim consented to sexual relations.

By his testimony that the sexual relations were consensual, appellant effectively denied the

commission of the lesser included offense, thereby precluding any possibility of a finding

of the lesser included offense. Therefore he was not entitled to an instruction on the lesser

included offense of sexual assault. Appellant’s second issue is overruled.



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      Accordingly, the judgment of the trial court is affirmed.


                                         Don H. Reavis
                                           Justice


Publish.




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