                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-14-00179-CV

              IN THE MATTER OF THE MARRIAGE OF
         MELISSA MARIE CONE AND JOSHUA JOSEPH CONE
             AND IN THE INTEREST OF A.J.C., A CHILD



                          From the 335th District Court
                             Burleson County, Texas
                              Trial Court No. 27,125


                          MEMORANDUM OPINION

      Joshua Cone filed for divorce from Melissa Cone in Harris County in September

2012, and a week later Melissa filed for divorce in Burleson County. On Melissa’s motion,

the Harris County court declined “jurisdiction” and transferred Joshua’s case to Burleson

County. Joshua then filed a counter-petition for divorce. The parties had married in

December 2010 in Washington State, and they separated in July 2012. Each petition

alleged insupportability of the marriage as the sole ground for divorce.

      At a hearing on temporary orders in December 2012, the parties agreed to

temporary orders providing for a psychological evaluation of each party, Joshua’s one-

hour weekly supervised visitation of their child A.J.C., and Joshua’s payment of child
support at the minimum-wage rate because he was unemployed at the time.

        The final hearing began on May 6, 2013. Melissa testified on direct about Joshua’s

alleged emotional abuse and his alleged infidelity during her pregnancy; she admitted

to engaging in sexual improprieties but said it was to make Joshua happy and to save

their marriage. Melissa made other allegations of wrongdoing by Joshua regarding his

military service, and she also testified that he was controlling, that he had “pushed her,”

and that he was inattentive in caring for A.J.C. Melissa admitted to assaulting Joshua but

said that the charges had been dismissed.

        Before Joshua’s attorney could begin cross-examination of Melissa, Joshua was

arrested on a charge of “stalking” Melissa by his allegedly placing a tracking device on

her car. He had already been arrested for the aggravated assault of Melissa in which she

claimed that he had tried to run her car off of the road with a motorcycle.

        The final hearing resumed on July 2, 2013. Melissa concluded her testimony on

direct, repeating that Joshua had limited interest in helping in the care of their child as

far as spending time with him, timely feeding him, and changing and bathing him. She

also alleged neglect by Joshua in changing diapers, and she testified about an infected

boil on the child’s lower buttocks that allegedly occurred while the child was in Joshua’s

care. Melissa further alleged that Joshua once left A.J.C. alone in the bath.

        Melissa testified that they met at a restaurant so that Joshua could see A.J.C., and

after arguing, Joshua allegedly took A.J.C. and fled on foot into the nearby woods. The

police were called and got Joshua to bring the child back after an hour. Joshua was

charged with child endangerment. Additionally, Melissa alleged that Joshua used illegal

In the Matter of the Marriage of Cone                                                 Page 2
drugs, but she admitted to smoking marijuana with him one time after they had

separated. She also admitted to other prior drug use with Joshua.

        With regard to personal property, other than some unspecified tools, Melissa did

not identify any separate or community property in Joshua’s possession that she wanted.

Her testimony did not place values on any personal property; she merely requested half

of the value of the community personal property that was in Joshua’s possession.

Without identifying debts by financial institution, account, or amount, Melissa requested

that the trial court order Joshua to pay all community debts.

        On cross-examination, Melissa identified a photograph of her and another woman

showering together while A.J.C. was asleep and Joshua was gone; Melissa admitted to

sending a text that she and the woman were “getting drunk.” Melissa also admitted to

dropping off A.J.C. at the child-visitation location with a possible wet diaper at times, but

she disagreed with the records showing that it occurred on multiple occasions. She

explained that the wet diaper would have occurred during the forty-five minute drive to

the location.

        Melissa then presented testimony from her parents, from a family friend, and from

the fiancé of Joshua’s half-sister. Her father’s criticism of Joshua was that he had seen

Joshua “snap at her” one time in the process of moving. The family friend had visited

the couple when they lived in Washington. He described Melissa as “isolated” at home

and, although Joshua was “trying very hard,” he thought it was to make a good

impression. He did not have any safety concerns about the home.



In the Matter of the Marriage of Cone                                                  Page 3
        Jacob Salinas, Joshua’s first witness and his close friend, was presented out of

order because he had travelled from out of state. Salinas had helped the couple move to

Texas and spent a couple of weeks around Melissa during that time. He described

Melissa as “insane” and suicidal. He observed Melissa scream at A.J.C. when he cried.

After he and Joshua had returned from a shooting range, he witnessed Melissa grab a

gun and make statements that she intended to shoot herself.

        Joshua next presented, again out of order, the testimony of Dr. Roy Lupnitz, a

psychologist who had evaluated Joshua and Melissa. Dr. Lupnitz said that Melissa’s

mental state showed a form of psychosis under stress and that she would not be thinking

clearly. He refuted her claim of being controlled and isolated by Joshua, stating that she

could be in more control if she wanted. Dr. Lupnitz also identified issues with Joshua as

being impulsive and having grandiose opinions, but he did not make a recommendation

that Joshua’s possession be limited to supervised visitation.

        Joshua then began his testimony. After providing some background information

about himself, his military service, and the history of his relationship with Melissa, he

sought to offer a recording on his cell phone of her making suicidal statements. While

addressing the format of the exhibit that would be admitted, the trial court took yet

another witness out of order to accommodate that witness’s schedule. When Joshua’s

testimony resumed, he acknowledged the pending criminal charges and that, based on

his criminal-defense attorney’s advice, his intent not to testify about the facts on which

those charges are based. Before any questions were asked about those charges, the trial

court stated:

In the Matter of the Marriage of Cone                                               Page 4
                Now, … we are going to have a problem, because it’s like the IRS
        lady; if you start talking, you don’t get to pick and choose what you waive
        The Fifth on. So either he testifies or he doesn’t.

               And whether he wants to put himself out there to -- for the criminal
        part of this, that’s a call y’all have to make. But it’s not a pick-and-choose
        situation. You’ve asked her about the situation, and in all fairness, if
        you’re going to call him, then he can’t sit there and take The Fifth because
        I’m not going to allow it.

        Even after Joshua made clear that he would not offer testimony on direct

examination about the events leading to the criminal charges, Melissa’s counsel

expressed an intent to question Joshua about those very issues, and the trial court stated:

        [E]ither you’re testifying or you’re not; make a decision.

        ….

                But that is my viewing of the Fifth. We don’t just pick and choose.
        It’s an all-or-nothing thing.

        Regarding Joshua’s prospective decision to present no further testimony in light

of the trial court’s position that, if he did continue testifying, he could not invoke the Fifth

Amendment, the trial court commented:

        I don’t know how you’re going to tell me about your client if he doesn’t
        testify. I don’t know where he’s living, I don’t know what he’s doing, I
        don’t know where he’s working.

        Rather than electing to waive his Fifth Amendment right concerning the pending

charges, Joshua rested without providing any further testimony, including the proffer of

the recording where he was the only witness who could authenticate it. Regarding the

recording, the trial court stated:

               [T]he recordings aren’t going to come in either because I didn’t ask
        you if he was waiving - - if he was going to take the Fifth, because when he

In the Matter of the Marriage of Cone                                                    Page 5
        came up here and testified, I assumed he would. But absent him as a
        sponsoring witness, they are not coming in.

        The trial court subsequently issued a letter ruling that named Melissa as sole

managing conservator of A.J.C. and made a division of the community property and debt.

Joshua filed a Motion to Reconsider and Reopen Testimony, citing authority holding that

the Fifth Amendment privilege must be asserted, and ruled upon, in response to specific

questions. The trial court held a hearing on that motion December 9, 2013. It denied the

motion but permitted an offer of proof.

        In the offer of proof, Joshua testified about prior visitation arrangements, his

current residence, and his request for at least standard visitation. The offer further

authenticated the audio recording reflecting Melissa’s alleged suicidal statements and

included testimony about the separate property character of guns awarded to Melissa.

When Joshua asserted his privilege to a specific question during cross-examination, the

trial court sustained the privilege, contrary to the trial court’s position at the final hearing.

        The trial court then signed a final decree in conformity with the prior letter ruling.

Joshua filed a motion for new trial and requested findings of fact and conclusions of law.

The trial court denied the motion for new trial and made findings and conclusions.

        In his appeal, Joshua’s first issue asserts that the trial court erred in ruling that he

would have to waive his Fifth Amendment privilege and testify about the pending

criminal charges if he wanted to continue testifying about other issues in the case. We

review a trial court’s evidentiary ruling for an abuse of discretion. Whirlpool Corp. v.

Camacho, 298 S.W.3d 631, 638 (Tex. 2009). A trial court abuses its discretion when it


In the Matter of the Marriage of Cone                                                     Page 6
misapplies the law to the established facts of the case. Beaumont Bank, N.A. v. Buller, 806

S.W.2d 223, 226 (Tex. 1991). “A trial court has no discretion to determine what the law is

or in applying the law to the facts and, consequently, the trial court’s failure to analyze

or apply the law correctly is an abuse of discretion.” In re American Homestar of Lancaster,

Inc., 50 S.W.3d 480, 483 (Tex. 2001).

        The Fifth Amendment applies to testimony in civil suits. McCarthy v. Arndstein,

266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924); see also Maness v. Meyers, 419 U.S. 449,

464, 95 S.Ct. 584, 594, 42 L.Ed.2d 574, 587 (1975) (Fifth Amendment may be asserted in

any proceeding, civil or criminal, administrative or judicial, investigatory or

adjudicatory); Burton v. West, 749 S.W.2d 505, 507 (Tex. App.—Houston [1st Dist.] 1988,

orig. proceeding) (defendant in drug proceeds forfeiture case permitted to assert Fifth

Amendment to discovery); Smith v. White, 695 S.W.2d 295, 297 (Tex. App.—Houston [1st

Dist.] 1985, orig. proceeding) (defendants under indictment entitled to assert Fifth

Amendment rights in civil-custody dispute). The Fifth Amendment can be asserted in

civil cases “‘wherever the answer might tend to subject to criminal responsibility [he]

who gives it.’” Texas Dept. of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 760

(Tex. 1995) (quoting McCarthy, 266 U.S. at 40, 45 S.Ct. at 17).

        In a criminal proceeding, any testimony at trial by the defendant waives the Fifth

Amendment privilege. Draper v. State, 596 S.W.2d 855, 857 (Tex. Crim. App. 1980). But

in a civil proceeding, the witness must assert the privilege in response to specific

questions and the trial court must rule on each question individually. Ex parte Butler, 522



In the Matter of the Marriage of Cone                                                    Page 7
S.W.2d 196, 198 (Tex. 1975); Gebhardt v. Gallardo, 891 S.W.2d 327, 330 (Tex. App.—San

Antonio 1995, no writ).

        The United States Constitution limits “the imposition of any sanction which makes

assertion of the Fifth Amendment privilege ‘costly.’“ Spevack v. Klein, 385 U.S. 511, 515,

87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967)); see also Davis–Lynch, Inc. v. Moreno, 667 F.3d 539,

547 (5th Cir. 2012); Alief ISD v. Perry, 440 S.W.3d 228, 243 (Tex. App.—Houston [14th Dist.]

2013, pet. denied). This requires a trial court to seek out ways to permit “as much

testimony as possible to be presented in the civil litigation, despite the assertion of the

privilege.” Davis-Lynch, Inc., 667 F.3d at 547. A party may not be forced to elect between

assertion of the privilege and the loss of a civil suit. United States v. White, 589 F.2d 1283,

1286-87 (5th Cir. 1979).

        We disagree with all of Melissa’s arguments in support of the trial court’s ruling.

First, Melissa asserts that Joshua offered a blanket assertion of the Fifth Amendment

privilege, which is not allowed in civil proceedings. Gebhardt, 891 S.W.2d at 330 (citing

White, 589 F.2d at 1286-87 and Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex. 1962)). The record

plainly shows that Joshua never actually asserted his Fifth Amendment privilege in

response to a question but that Joshua’s criminal-defense attorney had advised him “not

to testify about any of the things that [he] was under indictment for at this time.” This

was undoubtedly and merely an attempt by Joshua to inform the trial court and opposing

counsel that he would be asserting his Fifth Amendment privilege about the things he

was under indictment for, on both direct and cross-examination, and it was the trial court

who ruled—erroneously—that Joshua would have to either make a blanket assertion of

In the Matter of the Marriage of Cone                                                   Page 8
the privilege or waive it if he wished to continue testifying at all. Plainly, the trial court

was erroneously applying the Fifth Amendment invocation-rule for a defendant in a

criminal case to Joshua’s attempt to “not to testify about any of the things that [he] was

under indictment for at this time.”

        Melissa next asserts that the trial court did not force Joshua to elect between

waiving his Fifth Amendment privilege or not testifying any further. The above excerpts

belie this assertion. The trial court’s ruling could not have been clearer: “[I]f you start

talking, you don’t get to pick and choose what you waive The Fifth on. So either he

testifies or he doesn’t. … It’s an all-or-nothing thing.” In other words, if Joshua were to

invoke the Fifth Amendment privilege on the two matters that he was under indictment

for, the trial court was not going to allow him to testify any further, and if he chose to

continue testifying, he would have to waive the Fifth Amendment privilege on the two

matters that he was under indictment for. The trial court’s ruling expressly forced Joshua

to elect between waiving his right under the Fifth Amendment and not testifying further

at trial, and this forced election impermissibly burdened Joshua’s Fifth Amendment

privilege. See White, 589 F.2d at 1286–87.

        Melissa’s third argument is that, apart from the trial court’s refusal to allow

Joshua’s further testimony, Joshua could have but elected not to offer certain testimony.

Melissa first points to Joshua’s initial attempt to offer his cell-phone recording of

Melissa’s alleged suicidal statements. While addressing the format of the recording that

would be admitted, the trial court took another witness out of order, and when Joshua’s

testimony resumed, the issue of his pending charges and the Fifth Amendment arose.

In the Matter of the Marriage of Cone                                                   Page 9
Then, after Joshua rested after electing not to testify further, his attorney raised the issue

of offering the recording, but the trial court stated that “the recordings aren’t going to

come in either because I didn’t ask you if he was waiving - - if he was going to take the

Fifth, because when he came up here and testified, I assumed he would. But absent him

as a sponsoring witness, they are not coming in.”

        Regarding Joshua’s complaint about the property characterization of two guns

that he asserts are his separate property because he got them from his father’s estate,

Melissa points out that Joshua could have testified to that issue during his initial

testimony when he briefly testified about his background and his father’s death and

before the Fifth Amendment issue arose. But he also could have testified about the guns

later had the trial court not forced him to elect between waiving his Fifth Amendment

privilege and testifying at trial. Melissa further contends that Joshua did not list the guns

on his inventory that was submitted post-trial. Regardless, each side’s inventories were

not admitted into evidence,1 and there was no trial testimony about the property

characterization of the two guns.

        Melissa’s final argument on this issue asserts that, had Joshua testified about the

matters surrounding his pending charges, the trial court would have been justified in

finding an offensive use of the Fifth Amendment privilege. This argument is speculative

and, in any event, Joshua explicitly did not want to testify about those matters.

        In conclusion, the trial court erred and abused its discretion in forcing Joshua to



1
 A filed inventory that is not admitted into evidence is not evidence. Barnard v. Barnard, 133 S.W.3d 782,
789 (Tex. App.—Fort Worth 2004, pet. denied).
In the Matter of the Marriage of Cone                                                             Page 10
elect between waiving his right under the Fifth Amendment and not testifying further at

trial; this forced election impermissibly burdened Joshua’s Fifth Amendment privilege.

        If the trial court abuses its discretion in an evidentiary ruling, the complaining

party must still show harm on appeal to obtain a reversal. See Ford Motor Co. v. Castillo,

279 S.W.3d 656, 667 (Tex. 2009); TEX. R. APP. P. 44.2(a). Harmful error is error that

“probably caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1(a).

        Joshua’s testimony before the erroneous ruling was limited to his background and

military service. Regarding Joshua’s prospective decision to present no further testimony

in light of the trial court’s position that, if he did continue testifying, he could not invoke

the Fifth Amendment, the trial court commented:

        I don’t know how you’re going to tell me about your client if he doesn’t
        testify. I don’t know where he’s living, I don’t know what he’s doing, I
        don’t know where he’s working.

        And in discussions after Joshua had rested without completing his testimony, the

trial court further stated: “And since he doesn’t testify, I don’t know anything about his

financials.”

        Joshua’s limited testimony showed that he had objective evidence to support his

testimony about Melissa’s emotional condition and that she had threatened suicide.

Although Joshua testified about Melissa’s suicide threats, he elected to discontinue

testifying before he was able to offer a recording of Melissa’s statements, and the

recording could not be authenticated by Joshua as a sponsoring witness.                Joshua

presented the recording in his post-trial offer of proof, and it arguably supports his

testimony.

In the Matter of the Marriage of Cone                                                   Page 11
        Furthermore, the erroneous ruling prevented Joshua from addressing the majority

of Melissa’s allegations that she made in her case-in-chief. The trial court’s ruling also

prevented Joshua from giving testimony on the characterization of property and debts.

During trial the only testimony on the characterization of property came from Melissa,

and the only specific property that she identified as in the possession of Joshua were tools

from her car. She gave no testimony about guns, but the decree awarded two guns (a

Ruger handgun and a 40 mm handgun) to Melissa. Joshua’s offer of proof was the only

evidence on the character of the firearms; he testified that both guns had belonged to his

father and that his mother was letting him use one and that he bought the other from his

father’s estate with funds he was given from his father’s estate. See TEX. FAM. CODE ANN.

§ 3.001(2) (West 2006) (providing that property acquired by spouse during marriage by

gift, devise, or descent is separate property). A court has no authority to award the

separate personal property of one spouse to the other, and it is reversible error to do so

because it unconstitutionally divests a party of separate property. Cameron v. Cameron,

641 S.W.2d 210, 220 (Tex. 1982) (citing TEX. CONST. art. 16, § 15); Eggemeyer v. Eggemeyer,

554 S.W.2d 137, 140 (Tex. 1977) (same). The trial court’s erroneous ruling thus caused

reversible error in the character and division of property.

        In conclusion, the trial court’s erroneous ruling probably caused the rendition of

an improper judgment. Accordingly, we sustain Joshua’s first issue. We affirm that part

of the trial court’s final decree that grants a divorce, but we reverse the decree in part on

all other issues: conservatorship, possession and access, and child support; and division



In the Matter of the Marriage of Cone                                                 Page 12
of the marital estate. Because of this disposition, we need not address issues two and

three. This case is remanded for further proceedings consistent with this opinion.




                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed in part, reversed in part, and remanded
Opinion delivered and filed April 28, 2016
[CV06]




In the Matter of the Marriage of Cone                                                Page 13
