           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                         NO. WR-75,835-02



                      IN RE HECTOR ROLANDO MEDINA, Relator



                         ON APPLICATION FOR A WRIT OF
                     PROHIBITION IN CAUSE NO. W07-32923-S(A)
                      IN THE 282 ND JUDICIAL DISTRICT COURT
                              FROM DALLAS COUNTY

        J OHNSON, J., filed a concurring opinion.

                             CONCURRING OPINION

        I join the Court’s opinion. Because, in a hearing on his application for a writ of habeas

corpus, relator was granted immunity for use and derivative use of his testimony and the trial court

indicated that it would narrowly limit the state’s questioning of relator, relator has not established

that he has a clear right to the relief he seeks. In different circumstances and with different facts, the

appropriate holding might be different.

        I write separately because I am troubled by language in many of our cases that demotes the

Fifth Amendment right to remain silent and not to “be compelled in any criminal case to be a witness

against himself” to a “privilege.” Fortunately, the Court’s opinion in this case gives the Fifth
                                                                                                                        2

Amendment its due.

         We have long been extraordinarily loose in using “privilege” to describe a constitutional

right,1 and we need to consistently give the Fifth Amendment its proper place as a right under both

the United States Constitution and the Constitution of the State of Texas. Under the standards of

Marin,2 it is a waivable, type-2 right, but a right nevertheless. A privilege is a statutory creation and

can be revoked by the legislature at its discretion;3 the right not to be forced to testify against oneself

is enshrined in the United States Constitution’s Bill of Rights, and we ought not conflate the two.



Filed: November 4, 2015
Publish




         1
             See, e.g., Dansby v. State, 398 S.W .3d 233 (Tex. Crim. App. 2013) (repeated references to “Fifth Amendment
privilege”); Ex parte Dangelo, 376 S.W .3d 776 (Tex. Crim. App. 2012) (same); Alford v. State, 358 S.W .3d 647 (Tex.
Crim. App. 2012) (heightens the risk that an individual will not be accorded his privilege under the Fifth Amendment
not to be compelled to incriminate himself); Walters v. State, 359 S.W .3d 212, 214 (Tex. Crim. App. 2011) (“She refused
to testify, citing her Fifth Amendment privilege against self-incrimination.”). At times, the United States Supreme Court
has also demoted the right to a privilege. See, e.g., White v. Woodall, 134 S. Ct. 1697, 1703 (2014).

         2
             Marin v. State, 851 S.W .2d 275 (Tex. Crim. App. 1993).

         3
             See, e.g., Villarreal v. State, ___ S.W .3d ____ (Tex. Crim. App. 2014) (rehearing pending) (driver’s license
is a privilege); Dansby v. State, 448 S.W .3d 441 (Tex. Crim. App. 2014) (probation is a contractual privilege); Comeaux
v. State, 445 S.W .3d 745 (Tex. Crim. App. 2014) (peremptory challenges are a privilege granted to the accused); In re
McCann, 422 S.W .3d 701(Tex. Crim. App. 2013) (attorney-client privilege); Ex parte Miles, 359 S.W .3d 647 (Tex.
Crim. App. 2012) (privilege derived from the work-product doctrine); Sanchez v. State, 365 S.W .3d 681, 685 (Tex.
Crim. App. 2012) (“while district court judges are allowed to exchange benches without geographical restrictions, the
Legislature has not extended that same privilege to statutory county court judges.”); Vennus v. State, 282 S.W .3d 70,
72 n.1 (Tex. Crim. App. 2009) (“except with respect to privileges, the rules of evidence do not apply to suppression
hearings.”); Landers v. State, 256 S.W .3d 295 (Tex. Crim. App. 2008) (protected by the lawyer-client privilege of Rule
5.03 of the Texas Rules of Evidence, Rule 5.03 of the Texas Rules of Criminal Evidence, or by the principles of
attorney-client privilege governed by Rule 5.01 of the Federal Rules of Evidence); Boyle v. State, No. 69,743, 1991 Tex.
Crim. App. LEXIS 102, *19 (Tex. Crim. App. 1991) (not designated for publication) (absolute disqualification of
defendant’s spouse as a witness pursuant to former Art. 38.11 was removed, and privilege may now be asserted only by
defendant’s spouse).
