          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. PD-0527-11



                     CHARLES MICHAEL JOHNSON, Appellant

                                              v.

                                 THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE FIFTH COURT OF APPEALS
                            DALLAS COUNTY

              H ERVEY, J. delivered the opinion for a unanimous Court.

                                       OPINION

       The State asks this Court to reverse the judgment of the court of appeals, which

held that the trial court improperly influenced Appellant to testify in violation of his Fifth

Amendment privilege to remain silent. We hold that Appellant’s choice to testify was

voluntary and that his Fifth Amendment right to remain silent was not violated. We

reverse the judgment of the court of appeals and affirm the judgment of the trial court.

                             I. Facts and Procedural History
                                                                                          Johnson–2
       In 1991, Appellant, Charles Michael Johnson, was arrested by Dallas police and

indicted for possession of less than twenty-eight grams of cocaine with intent to deliver.

After his arrest, Appellant was released on bond. When he failed, on three occasions, to

appear in court to answer the charges against him, his bond was forfeited, and a warrant

was issued for his arrest. Eighteen years later, Appellant was arrested in Florida and

returned to Texas. Subsequently, a jury convicted him, and Appellant elected for the trial

court to assess punishment. After the State rested, Appellant requested that the trial court

take judicial notice of the pre-sentence investigative report (PSI).1 He then rested his

case. At that point, the following exchange took place:

       [TRIAL COURT]: Your client doesn’t want to testify?

       [DEFENSE COUNSEL]: No, Your Honor.

       [TRIAL COURT]: Is that right, sir?

       [DEFENSE COUNSEL]: If you want to testify, I will put you up there.

       [TRIAL COURT]: In all candor, I would kind of like to know what he’s
       been doing for the last 18 years.




       1
          In the punishment phase, a trial court may accept any evidence deemed relevant to
sentencing, including a PSI. TEX . CODE CRIM . PROC. ANN . art. 37.07 § 3(a)(1). If there is a PSI,
the trial court shall announce his decision as to punishment “after considering the report.” TEX .
CODE CRIM . PROC. ANN . art. 37.07 § 3(d). In addition, the trial court has a duty to allow the
defendant to comment on inaccuracies in the report and has the discretion to hear testimony or
other information concerning the report. TEX . CODE CRIM . PROC. ANN . art. 42.12 § 9(e).
Because a trial court considers a PSI before assessing punishment, and the contents of the report
could bear on the trial court’s final decision, it seems only logical the trial court is permitted to
ask questions concerning the contents of the report, if they are relevant to sentencing. Further,
Appellant specifically asked the court to take judicial notice of the contents of the PSI.
                                                                                    Johnson–3
       [DEFENSE COUNSEL]: Okay.

       [TRIAL COURT]: Come to the front of the courtroom.

       Appellant was sworn in and testified. On direct examination, he testified that,

prior to his arrest in Florida, he had straightened out his life. He also stated that he was in

a committed relationship and that he lived with his girlfriend and daughter. He also

testified that he had remodeled houses in Florida as a subcontractor for more than

seventeen years. On cross-examination by the State, Appellant claimed that he did not

know warrants had been issued for his arrest. He also denied threatening the police

officer with his gun, but he did admit to living under a false identity and using a false

social-security number to obtain a job in Florida. He also testified that the substance he

was arrested with in Dallas was not cocaine. Upon hearing this statement, the trial court

interrupted to ask Appellant whether he was aware that the substance he possessed at the

time of arrest had tested positive for cocaine. Appellant maintained that it was not

cocaine. The trial court continued to question him about the drugs and other

circumstances surrounding the incident, and in an attempt to explain how the substance

tested positive for cocaine, Appellant alleged that the arresting officer is “a dirty cop.”

Then, the trial court excused Appellant, and the defense rested for a second time.

       After closing arguments, but before the judge announced Appellant’s sentence, the

trial court stated,

       Okay. Well, this is obviously a very difficult case in that it’s apparent to me
       that he has stayed out of trouble, essentially at least, in any realistic way. I
                                                                                          Johnson–4
       mean, driving with a license suspended is no big deal in the context of
       things, but on the other hand, I don’t want to reward somebody for running,
       and I do believe that the defendant lied under oath, sir. I’m sorry. That’s
       what I think.

The trial court then assessed punishment at ten years’ confinement.

       On appeal, Appellant argued, inter alia, that his trial was unfair because the trial

court compelled him to testify at the punishment phase in violation of his Fifth

Amendment right to silence. Johnson v. State, No. 05-09-00792-CR, 2011 WL 72197, at

*1 (Tex. App.—Dallas Jan. 11, 2011) (mem. op.) (not designated for publication). The

court of appeals held that Appellant did not knowingly, voluntarily, and intelligently

waive his right to remain silent. Id. at *3. Because it also concluded that Appellant’s

failure to object did not waive his complaint for appellate review, it sustained Appellant’s

Sixth Amendment claim and remanded the case to the trial court for a new punishment

hearing. Id.

       We granted review to determine if the court of appeals correctly concluded that

Appellant was improperly influenced to testify in violation of his Fifth Amendment right

to remain silent.2

                                 II. Arguments of the Parties

A. The State

       The State first argues that regardless of whether Appellant actually invoked his


       2
         The precise ground for review granted is, “Did the Court of Appeals err in determining
that the trial court improperly influenced Appellant to testify in violation of his right to remain
silent?”
                                                                                     Johnson–5
right to silence, he waived that right when he knowingly, intelligently, and voluntarily

took the stand in his own defense. The State cites Chavez v. State, 508 S.W.2d 384, 386

(Tex. Crim. App. 1974), for the proposition that a defendant may waive the privilege

against self-incrimination by voluntarily taking the stand and becoming a witness.

       The State also avers that it was not improper for the trial court to directly address

Appellant after he rested his case; rather, the trial court “merely expressed his interest in

hearing what Appellant had been doing” for the eighteen years since his arrest. The State

argues that the real reason Appellant took the stand was to seek leniency in sentencing by

presenting mitigating evidence showing that he had turned his life around but that, on

cross-examination, Appellant voluntarily began to perjure himself by making false

statements about his offense.

       Moreover, the State avers that Carroll v. State, 68 S.W.3d 250, 253 (Tex.

App.—Fort Worth 2002, no pet.), is distinguishable from Appellant’s case. In Carroll,

the State called the defendant to testify during the punishment phase, and her counsel

asked the trial court if she “had to” testify. Id. at 252. The court replied, “Well, I think if

you don’t, it’s going to reflect very seriously on the Court’s decision here.” Id. The

defendant was then sworn, and she testified. The court of appeals held that the trial court

“improperly coerced” her into testifying because it was unconstitutional to imply that an

assertion of a defendant’s right to not incriminate herself would be used against her. Id.

at 253. The State argues that the comments at issue in Carroll are distinguishable from
                                                                                   Johnson–6
the comments in Appellant’s case. Specifically, in Carroll, the defendant was told that

she would receive harsher punishment for exercising her constitutional right, whereas, in

Appellant’s case, the trial court wanted to hear mitigating evidence, had obvious reason to

be concerned about what Appellant had been doing since fleeing Dallas eighteen years

earlier, and never stated or implied that Appellant’s failure to testify would be used

against him.

       The State contends that Appellant’s case is more analogous to Birdsong v. State,

82 S.W.3d 538, 544 (Tex. App.—Austin 2002, no pet.). In that case, the defendant was

called to the stand by the prosecution during the punishment phase. Id. at 541. The

defendant’s attorney cross-examined him and elicited mitigating evidence that the

defendant had paid restitution, was willing to write apology letters to the victims, and

would live with his father if released. Id. at 544. On appeal, the defendant argued that,

by calling him to testify, the State violated his Fifth Amendment right against self-

incrimination. Id. at 541. The court of appeals determined that the salient issue was

whether the record showed that his punishment phase testimony was given knowingly,

voluntarily, and intelligently. Id. at 544. The court also noted that the defendant was

represented by counsel at the proceeding, there was no objection to calling the defendant

as a witness or to any question the State asked, and defense counsel cross-examined the

defendant and elicited mitigating evidence. Id. Consequently, the appellate court

concluded that his waiver was knowing, intelligent, and voluntary. Id.
                                                                                     Johnson–7
B. Appellant

       Appellant argues that he affirmatively invoked his right to remain silent; that he

did not knowingly, intelligently, or voluntarily waive his right; and that, as a result, his

testimony was compelled in contravention of the Fifth Amendment. Appellant also

claims that Chavez, 508 S.W.2d at 385, is distinguishable because Chavez dealt with a

defendant who voluntarily testified at his first trial, but complained that the State could

not use those statements against him in his second trial. Thus, according to Appellant,

Chavez is not instructive here because the issue at hand is whether Appellant was

compelled to testify, not whether his testimony could be used against him at a subsequent

proceeding.

       Appellant also avers that his case is similar to Carroll and, thus, warrants the same

outcome because he never waived his privilege against self-incrimination. Appellant

contends that he, like the appellant in Carroll, was compelled to testify in contravention

of his Fifth Amendment privilege to remain silent. See Carroll, 68 S.W.3d at 253. Thus,

Appellant claims that his testimony cannot be viewed as a waiver of his privilege against

self-incrimination because any waiver was given under penalty of punishment.

       Appellant also argues that the result in Birdsong goes against the weight of the

evidence. In that case, although the State admitted it was error to call the defendant to the

stand, and the court held that a defendant need not affirmatively invoke his right to

silence, it nonetheless concluded that the defendant knowingly, intelligently, and
                                                                                    Johnson–8
voluntarily waived his right to remain silent. Id. at 544. Appellant also contends that key

facts distinguish Birdsong from his case. For example, in Birdsong the defendant pled

guilty, but here Appellant pled not guilty. Additionally, the defendant in Birdsong never

stated that he did not want to testify, but Appellant affirmatively invoked his right to

silence twice. Finally, Appellant notes that the court put great emphasis on the fact that

the defendant failed to object to being called as a witness by the State, and he concludes

that, had the defendant in Birdsong affirmatively invoked his privilege, the court of

appeals would have reached a different conclusion.

        Appellant also contends that Thomas v. United States, 368 F.2d 941 (5th Cir.

1966), is most analogous to his case. In Thomas, before imposing a sentence, the judge

asked the defendant if he wanted to make a statement. Id. at 944. The defendant then

professed his innocence. Id. After the defendant made his statement, the judge told him

that if he “came clean” he would take that into account in assessing his sentence. Id. The

judge also told the defendant that if he failed to confess, that fact would also be taken into

account. Id. The defendant chose not to testify and subsequently received the maximum

sentence. Id. at 945. The Fifth Circuit vacated the defendant’s conviction as an abuse of

discretion because it held that the defendant was compelled to suffer an unconstitutional,

judicially- imposed penalty. Id. at 947. Appellant argues that the facts of his case are

more egregious than those in Thomas, and as such, a similar outcome is required in his

case.
                                                                                    Johnson–9
       Appellant also contends that the exchange between himself and the trial court was

so oppressive that it was more akin to the pressures of a police interrogation and that

police questioning immediately following the invocation of a suspect’s right to silence

violates the Fifth Amendment. See, e.g., Charles v. Smith, 894 F.2d 718 (5th Cir. 1990);

Watson v. State, 762 S.W.2d 591 (Tex. Crim. App. 1998); United States v. Rambo, 365

F.3d 906 (10th Cir. 2003).

       Finally, Appellant argues that it is improper to consider the substance of his

statements as a factor when determining whether he voluntarily testified because looking

to the substance of the testimony (and its incriminating nature) is of no help in

determining whether Appellant voluntarily took the stand before making the

incriminating statements.

                   III. The Fifth Amendment Right to Remain Silent

       The Fifth Amendment in relevant part states that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.” U.S. C ONST. amend. V;

see also Estelle v. Smith, 451 U.S. 454, 463 (1981). To seek the protection of the Fifth

Amendment, a defendant in a criminal case normally must affirmatively assert the

privilege. Minnesota v. Murphy, 465 U.S. 420, 427 (1984); United States v. Monia, 317

U.S. 424, 427 (1943). But, because the Fifth Amendment speaks of “compulsion,” if a

defendant fails to affirmatively assert the privilege, but nonetheless provides

incriminating statements, it cannot be said that the person has been “compelled” to
                                                                                     Johnson–10
provide evidence against himself. Murphy, 465 U.S. at 427. Thus, the general rule is that

the privilege to avoid self-incrimination is ordinarily not self-executing.3 Id. (quoting

Monia, 317 U.S. at 427); Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003).

       Just as a defendant can fail to invoke his Fifth Amendment privilege, a defendant

can also voluntarily forfeit his Fifth Amendment privilege if he freely chooses to take the

stand and make incriminating statements. Murphy, 465 U.S. at 427; see Monia, 317 U.S.

at 427. This is true even if not done knowingly and intelligently. Murphy, 465 U.S. at

427-28; Garner v. United States, 424 U.S. 648, 654 n.9 (1976).

       In addition, there are exceptions when a defendant need not affirmatively invoke

his right to remain silent. See Murphy, 465 U.S. at 429-41. In these situations, the right

is self-executing. Id. at 429. The exception at issue here is the “classic penalty situation”

described by the Supreme Court in Garner, 424 U.S. at 661-63, and Murphy, 465 U.S. at

434. In a penalty case, a defendant is foreclosed from making a free decision to invoke

his privilege to silence because he is faced with a new or additional penalty for exercising

his constitutional right. Murphy, 465 U.S. at 434. In that situation, a defendant who fails

to invoke his right to avoid self-incrimination may succumb to the pressure of the penalty

rather than freely choosing to remain silent. See Garner, 424 U.S. at 661. Consequently,



       3
         The Fifth Amendment privilege against self-incrimination under a Marin analysis is a
forfeitable privilege. See Marin v. State, 851 S.W.2d 275, 278-79 (Tex. Crim. App. 1993). This
is true because any relinquishment of the privilege need not be expressly made, and a trial judge
has no independent duty to implement a defendant’s Fifth Amendment privilege. Murphy, 465
U.S. at 427; see Marin, 851 S.W.2d at 279.
                                                                                   Johnson–11
the failure on the part of the defendant to affirmatively invoke his right to avoid self-

incrimination is excused. Murphy, 465 U.S. at 434-35.

       The issue here is not whether Appellant made a knowing, intelligent, and voluntary

waiver of his privilege to remain silent. See Murphy, 465 U.S. at 427. The critical

inquiry is whether Appellant voluntarily testified or whether Appellant was “coerced” to

testify against his will. Chapman, 115 S.W.3d at 6; see Murphy, 465 U.S. at 435.

             IV. When is an accused’s right to incriminate self-executing?

       To determine if Appellant’s Fifth Amendment privilege was self-executing, we

look to Murphy, the leading authority on penalty cases. Chapman, 115 S.W.3d at 6. In

Murphy, the appellant pled guilty to a charge of false imprisonment, and he was

sentenced to sixteen months’ confinement and three years of probation. Murphy, 465

U.S. at 422. The appellant was told that he must satisfy each condition of his probation

and that if he failed to do so, revocation proceedings would be initiated against him. Id.

One of those conditions required him to be truthful at meetings with his probation officer.

Id. At a meeting with his probation officer, the appellant admitted that he had raped and

murdered another person. Id. at 423-24. The Supreme Court held that the condition of

probation requiring the appellant to be truthful did not present a penalty situation.

Murphy, 465 U.S. at 439. In arriving at its conclusion, the Supreme Court relied upon

two important facts: first, there was no evidence, direct or otherwise, that the

incriminating statements were made because the appellant was threatened with revocation
                                                                                  Johnson–12
of his probation; and second, the appellant’s belief that his probation would be revoked if

he did not make the incriminating statements was not reasonable because the State cannot

carry out a threat to revoke probation in retaliation for invoking the privilege to remain

silent. Id. at 437-38.

               V. Was Appellant’s right to remain silent self-executing?

       Here, as in Murphy, there is no direct record evidence that Appellant took the stand

because he feared that the trial court would penalize him for remaining silent. The trial

court never told Appellant he would receive a greater sentence if he chose not to testify.

Rather, after Appellant rested during the penalty phase, the trial court asked defense

counsel, “Your client doesn’t want to testify?” The court later added, “In all candor, I

would kind of like to know what he’s been doing for the last 18 years.” Furthermore,

neither Appellant nor his counsel made any comment indicating that they believed if

Appellant remained silent a greater punishment would be assessed. In fact, when the

court asked Appellant whether he would be testifying, Appellant’s counsel told him, “If

you want to testify, I will put you up there.” Thus, the record reveals no direct evidence

to support Appellant’s claim that he was placed in a penalty situation because there is no

direct evidence that Appellant was confronted with a penalty. Black’s Law Dictionary

defines “penalty,” in relevant part, as “[p]unishment imposed on a wrongdoer . . . .”

B LACK’S L AW D ICTIONARY 1153 (7th ed. 1999). Thus, unlike in this case, to be

confronted with a penalty situation, there must be at least some record evidence that the
                                                                                   Johnson–13
defendant in question was in fact confronted with a choice—be compelled to take the

stand and testify or face “punishment” for invoking his right to remain silent.

       The question then becomes whether Appellant was confronted with a penalty

situation by implication. The first statement made by the trial cannot be reasonably

interpreted as a threat to penalize Appellant if he did not testify. Black’s Law Dictionary

defines the word “threat” as “[a] communicated intent to inflict harm or loss on

another . . . ,” especially “one that might diminish a person’s freedom to act

voluntarily . . . .” B LACK’S L AW D ICTIONARY 1489 (7th ed. 1999). After reviewing the

record, it cannot be said that the first statement amounted to an implied “communicated

intent to inflict harm” on Appellant if he chose to not testify. That statement is better

characterized as an interrogatory typical of a trial court charged with exercising

“reasonable control over the mode and order of interrogating witnesses and presenting

evidence[,]”4 and a court performing its duty under Article 37.07 of the Texas Code of

Criminal Procedure to accept evidence offered “as to any matter the court deems relevant

to sentencing . . . .”5 T EX. C ODE C RIM. P ROC. A NN. art. 37.07 § 3(a)(1).

       Turning to the court’s second statement, when the trial court asked about what

Appellant had been doing in the eighteen years between his arrests, two competing views


       4
           Tex. R. Evid. 611(a).
       5
        Under Article 37.07 of the Texas Code of Criminal Procedure, a judge is allowed to
accept evidence on any matter the court deems relevant to sentencing, including the
circumstances of the offense and his character. TEX . CODE CRIM . PROC. ANN . art. 37.07
§ 3(a)(1), (d); see Ellison v. State, 201 S.W.3d 714, 722 (Tex. Crim. App. 2006).
                                                                                     Johnson–14
have been advanced as to its implications. Appellant argues that the statement caused

him to feel compelled to testify (to avoid being punished for remaining silent). In

contrast, the State argues that the statement allowed Appellant an opportunity to help

himself and that, like Birdsong, Appellant took that opportunity to attempt to show the

court that he had reformed his ways and deserved a lesser sentence. We agree with the

State that, based on the record, a reasonable person would perceive the second statement

as a request to offer mitigating evidence rather than an implied threat of punishment.

       This conclusion is supported by the procedural posture and record in this case. An

inordinate amount of time passed between Appellant’s 1991 arrest in Dallas and his arrest

eighteen years later in Florida.6 In addition, because this was the penalty phase, the court

was accepting all evidence relevant to sentencing, and one type of relevant evidence in

the penalty phase is mitigating evidence. See Ellison, 201 S.W.3d at 722; see also

Willingham v. State, 897 S.W.2d 351, 358-59 (Tex. Crim. App. 1995). Further,

Appellant’s counsel emphasized the mitigating circumstances of Appellant’s life since

being arrested in Dallas. He pointed out that, although Appellant had been arrested for

driving with a suspended license, “that’s the worst that the State has been able to bring.”

He also stated that “whatever happened back in 1991, [Appellant] was able to straighten

himself out, and he’s had 17 years plus of working, raising a family . . . .”



       6
         Appellant’s counsel pointed this out when he said that “this case is a bit different”
because “in most cases we are trying the case after - - you know, maybe eight months to a year
after the events happen . . . .”
                                                                                  Johnson–15
       Moreover, the trial court’s statement before announcing Appellant’s sentence also

supports the conclusion that the trial court was inquiring about mitigating evidence, not

implying that Appellant would be punished for not testifying. The trial court stated,

       Okay. Well, this is obviously a very difficult case in that it’s apparent to me
       that he has stayed out of trouble, essentially at least, in any realistic way. I
       mean, driving with a license suspended is no big deal in the context of
       things, but on the other hand, I don’t want to reward somebody for running,
       and I do believe that the defendant lied under oath, sir. I’m sorry. That’s
       what I think.

This statement shows that the court was sympathetic to Appellant’s case and was

interested in imposing a lesser sentence based on mitigating circumstances following

Appellant’s arrest. However, it also appears that the court felt unable to impose a lesser

sentence, even in light of the mitigating evidence, because it found Appellant’s testimony,

in at least some respects, to be false.

       And, we do agree with Appellant’s argument that whether he did or did not perjure

himself is irrelevant to our analysis and cannot be properly considered in a penalty-

situation inquiry. We think the substance of his testimony may be examined to determine

whether Appellant had a basis for believing that, if he had invoked his right to silence, he

would have been punished for asserting that right. Murphy, 465 U.S. at 438. For

example, Appellant’s testimony on cross-examination is some evidence that he was trying

to offer mitigating evidence. Also, the excerpts from the record show that Appellant

spent the majority of his time on direct examination offering mitigating evidence.

Moreover, Appellant’s continued denials of wrongdoing, even when vigorously cross-
                                                                                 Johnson–16
examined by the State, strongly suggests that Appellant’s will was not overborne when he

took the stand. Murphy, 465 U.S. at 438. This conclusion is strengthened by the fact that

Appellant continued to deny culpability even when the judge grew impatient with his

answers and excused him from the stand. In short, Appellant’s testimony does not

support his contention that he was coerced into testifying.

       The record in this case reveals that neither statement by the trial court amounted to

a threat that Appellant would be penalized for exercising his constitutional right to

silence. To the contrary, we believe that Appellant could not have reasonably believed

that he was confronted with the choice either to be silent and be punished or to capitulate

and give incriminating statements against his will. Instead, the record in this case shows

that, like Birdsong, Appellant and his counsel perceived an opportunity to offer mitigating

evidence in the hope of leniency at sentencing. See Birdsong, 82 S.W.3d at 544. We also

note that Appellant invoked his right to remain silent in the guilt phase, and was thus

aware of his right, and that Appellant lodged no objection to being called to the stand or

to the questions asked. See Murphy, 465 U.S. at 437.

       We hold that Appellant was not confronted with a penalty situation and that, as a

result, he cannot now claim a violation of his Fifth Amendment privilege to remain silent.

                                      VI. Conclusion

       Because Appellant was not confronted with the “classic penalty situation,” he

forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in
                                                                              Johnson–17
his own defense. We reverse the judgment of the court of appeals and affirm the trial

court’s judgment.

                                                                               Hervey, J.


Delivered: January 25, 2012

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