AFFIRMED and Opinion Filed November 28, 2018




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-17-01300-CR

                              OBED ISAU ZAVALA, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the 291st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F-1535052-U

                              MEMORANDUM OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                                   Opinion by Justice Bridges
       Obed Isau Zavala appeals his aggravated robbery conviction. A jury found appellant

guilty, and the trial court sentenced him to fifteen years’ confinement. In a single issue, appellant

argues the trial court erred in allowing the complainant, Joshua Karamvellil, to invoke his Fifth

Amendment privilege against self-incrimination during his testimony. We affirm the trial court’s

judgment.

       At trial, Karamvellil testified that, in December 2015, he was selling marijuana for a living.

Karamvellil testified appellant and two armed, masked men entered Karamvellil’s house, held

Karamvellil at gunpoint and tied him up with duct tape, and took Karamvellil’s electronics, money,

and jewelry. Appellant was arrested hiding under a neighbor’s porch while attempting to evade

arrest. Appellant had “Texas crook” tattooed across his chest. On direct examination by the
prosecutor, Karamvellil testified he had a pending assault charge against him, he was on probation

for possession of marijuana, and he had two driving while intoxicated charges against him. On

cross-examination, appellant’s counsel asked Karamvellil about the identity of the victim in the

pending assault case. The prosecutor objected that the assault case was not yet adjudicated, and it

was “not a legal way to impeach a witness.” The trial court sustained the objection.

       At a later hearing outside the presence of the jury, the trial court overruled its initial ruling

and ruled that appellant’s counsel could question Karamvellil about the underlying facts of the

pending assault case and a separate deadly conduct case. The trial court noted that it had appointed

an attorney from the public defender’s office to represent Karamvellil. Karamvellil’s appointed

counsel stated she had discussed with Karamvellil “the nature of his testimony going forward” in

the trial, and Karamvellil decided to “invoke his Fifth Amendment right.” Still outside the

presence of the jury, appellant’s counsel questioned Karamvellil about his decision not to testify,

and Karamvellil stated, “I plead the Fifth.” Appellant’s counsel then asked the trial court to strike

Karamvellil’s entire testimony and asserted Karamvellil could not, “halfway through a proceeding,

selectively choose to invoke [his] Fifth Amendment right.” The trial court ruled that it would not

“grant [Karamvellil] Fifth Amendment privilege with regards to anything outside of those pending

cases that he has that are not subject to this trial at hand.” The trial court stated the law allowed

Karamvellil to invoke his Fifth Amendment privilege against self-incrimination with respect to

“the assault case and the deadly conduct that he currently has pending.” The jury subsequently

convicted appellant of aggravated robbery, and this appeal followed.

       In a single issue, appellant argues the trial court erred when it allowed Karamvellil to “take

the Fifth” in the middle of his testimony. Specifically, appellant complains Karamvellil waived

his Fifth Amendment privilege by testifying he had a pending assault charge. Therefore, appellant

argues, the trial court should have compelled Karamvellil to testify.

                                                 –2–
       The Fifth Amendment to the Constitution of the United States provides that no person shall

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

witness may invoke the Fifth Amendment privilege at the “threshold” of “any particular

transaction or area of testimony” that is unrelated to the testimony provided on direct examination.

Scott v. State, 940 S.W.2d 353, 357 (Tex. App.—Dallas 1997, pet. ref’d) (quoting Blackmon v.

State, 642 S.W.2d 499, 501-02 (Tex. Crim. App. 1982)).

       Karamvellil was a fact witness, not the accused on trial. He voluntarily testified regarding

his knowledge of the incident that resulted in appellant being charged. The questions he refused

to answer concerned facts of unadjudicated offenses unrelated to the matter before the court, and

Karamvellil asserted his Fifth Amendment privilege at the first sign appellant’s counsel sought to

develop the details of Karamvellil’s unadjudicated offenses. Under circumstances such as these,

this Court in Scott concluded evidence regarding the facts of a witness’s pending aggravated

assault charge were not related to his testimony on direct examination, a response to the proffered

question was potentially incriminating, and the witness timely invoked his privilege. See Scott,

940 S.W.2d at 358. Thus, we conclude the trial court in this case did not err by allowing

Karamvellil to assert his Fifth Amendment privilege. See id.; Blackmon, 642 S.W.2d at 501-02.

We overrule appellant’s single point of error.

       We affirm the trial court’s judgment.




                                                   /David L. Bridges/
                                                   DAVID L. BRIDGES
                                                   JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)

171300F.U05
                                                 –3–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                      JUDGMENT

 OBED ISAU ZAVALA, Appellant                      On Appeal from the 291st Judicial District
                                                  Court, Dallas County, Texas
 No. 05-17-01300-CR       V.                      Trial Court Cause No. F-1535052-U.
                                                  Opinion delivered by Justice Bridges.
 THE STATE OF TEXAS, Appellee                     Justices Francis and Lang-Miers
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered November 28, 2018.




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