IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NOS. 359-00 & 360-00

NELLRIE BYRD CARROLL, Appellant


v.



THE STATE OF TEXAS




ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SECOND COURT OF APPEALS

TARRANT COUNTY


Johnson, J., delivered the opinion of the Court, in which Keller, P.J., and Meyers, Price, Holland, Womack, Hervey, and Holcomb, JJ., joined. Meyers, J., filed a concurring opinion, in which Price, J., joined. Keasler, J., concurred in the judgment.



O P I N I O N



Appellant pled guilty, in a non-negotiated plea to the trial court, to two counts of delivery of marijuana. The trial court accepted her pleas and sentenced her to concurrent five-year sentences and a $5,000 fine. On appeal, appellant appealed the punishment portion of the judgments, alleging that the trial court erred by coercing her to testify at the sentencing phase of her hearing. The court of appeals reversed and remanded for a new sentencing proceeding. Carroll v. State, 946 S.W.2d 879 (Tex. App.--Fort Worth 1997) (Carroll I). On petition for discretionary review, we reversed the judgment of the court of appeals, and remanded the cause to that court. Carroll v. State, 975 S.W.2d 630 (Tex. Crim. App. 1998) (Carroll II). Approximately six and one-half months after that decision, the United States Supreme Court handed down its decision in Mitchell v. United States, 526 U.S. 314, 119 S. Ct. 1307, 143 L. Ed.2d 424 (1999), in which it held that a criminal defendant retains the fifth amendment right to remain silent at a sentencing proceeding, even after a plea of guilty, and that a trial court may not draw an adverse inference from such silence. (1) The majority explicitly refused to rule on the question of whether the invocation of the right to silence could bear on issues other than self-incrimination, such as lack of remorse and acceptance of responsibility, which are factors under the federal sentencing guidelines. Id. at 330, 119 S. Ct. at 1316.

Based on Mitchell, the court of appeals initially reversed and remanded for a new sentencing proceeding. Carroll v. State, 999 S.W.2d 630 (Tex. App.--Fort Worth 1999) (Carroll III). Thereafter, pursuant to Tex. R. App. P. 50, the court of appeals withdrew its opinion and handed down a new decision affirming appellant's convictions and sentences. Carroll v. State, 12 S.W.3d 92 (Tex. App.--Fort Worth 1999) (Carroll IV). We granted appellant's petition for discretionary review (2) to consider whether the court of appeals' decision conflicts with Mitchell v.United States, supra. We reverse and remand.



PROCEDURAL HISTORY

On July 28, 1995, appellant pled guilty and testified, pursuant to a written waiver of her right against self-incrimination, that the information contained in each indictment was true and that she was guilty of the charged offenses. On October 13, 1995, following the completion of the pre-sentence investigation, the court held a sentencing hearing and advised defense counsel that if appellant invoked her privilege against self-incrimination, the court would consider that invocation as a circumstance against her when determining her punishment.

On appeal, appellant complained that the trial court erred by coercing her to testify at the sentencing phase of her hearing. The court of appeals held that a waiver of the fifth amendment right at the guilt-innocence phase of a trial does not extend to the punishment phase; that the fifth amendment prohibits increased sentences due to a defendant's refusal to testify; and that the trial court's warning to defense counsel regarding appellant's invocation of her privilege against self-incrimination violated appellant's fifth amendment rights. Carroll I, 946 S.W.2d at 881-2.

In ruling on the state's petition for discretionary review, this Court held that once appellant's guilty plea was entered, the proceeding became "unitary" to determine the issue of punishment, so that appellant's plea extended to the issue of punishment. Carroll II, 975 S.W.2d at 631-2. We also stated that, based on a written waiver signed by appellant, appellant had relinquished her fifth amendment rights, and that she had done so voluntarily. Id. at 632. We then remanded the cause to the court of appeals. Id.

Before the court of appeals handed down its opinion on remand (Carroll III), the United States Supreme Court decided Mitchell, supra. Based on Mitchell, the court of appeals initially held that the trial court had improperly coerced appellant into testifying at the sentencing portion of the hearing, and that, because the trial court had relied on that coerced testimony in refusing to probate her sentences, such error was harmful. Carroll III, 999 S.W.2d at 636. The state filed a petition for discretionary review and, pursuant to Rule 50, the court of appeals withdrew its opinion. In its substitute opinion (Carroll IV), the court of appeals questioned whether our decision in Carroll II could be reconciled with Mitchell, but deferred to our decision, as well as to the doctrine of the "law of the case," and affirmed appellant's convictions and sentences. Carroll IV, 12 S.W.3d at 96-7. Appellant then filed a petition for discretionary review, which we granted.

ANALYSIS

Under the doctrine known as "law of the case," "an appellate court's resolution of a question of law in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal." Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999) (citations omitted). However, the doctrine's application is not inflexible. Id. One of the circumstances in which an appellate court may reconsider its earlier disposition of a point of law is when there has been a change in the controlling law between the time of the first appellate determination and the time that the case is brought on a second appeal. See 5 Am. Jur. 2d Appellate Review 613 (1995); E.H. Schopler, Annotation, Erroneous Decision as Law of the Case on Subsequent Appellate Review, 87 A.L.R.2d 271, 357-8 (1963 & Supp. 2000); Cf. In re Estate of Chavana, 993 S.W.2d 311, 315-6 (Tex. App.--San Antonio 1999, no writ); McCrea v. Cubilla Condo. Corp., N.V., 769 S.W.2d 261, 263-4 (Tex. App.--Houston [1st Dist.] 1988, writ denied). Mitchell constitutes such an intervening decision, and our decision in Carroll II is not, therefore, binding "law of the case."

In Carroll II, we held that, pursuant to our precedents,

in a unitary trial where a defendant has pled guilty there exists no per se "punishment phase." In fact, unitization of the trial, where a defendant pleads guilty to a felony charge before a jury or judge, admits the existence of all facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury or judge intelligently to exercise discretion in the assessment of punishment. Since appellant openly pled to the offenses in the indictment she is not eligible for a bifurcated trial. . .but is instead subject to the rules of a unitary proceeding. Therefore, appellant's waiver extended to this proceeding.



Carroll II, 975 S.W.2d at 631-2 (citations omitted). That is, once appellant pled guilty to the offense, she waived her right against self-incrimination as to the issue of punishment, as well as to guilt/innocence. However in Mitchell, the Supreme Court explicitly rejected the proposition that "incrimination is complete once guilt has been adjudicated." Mitchell, 526 U.S. at 325, 119 S. Ct. at 1313 (citing Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981)). It stated that the proper rule is that "[a]lthough the witness has pleaded guilty to a crime charged but has not been sentenced, his constitutional privilege remains unimpaired." Mitchell, 526 U.S. at 326, 119 S. Ct. at 1314. It went on to explain:

It is true, as a general rule, that where there can be no further incrimination, there is no basis for the assertion of the privilege. We conclude that principle applies to cases in which the sentence has been fixed and the judgment of conviction has become final. If no adverse consequences can be visited upon the convicted person by reason of further testimony, then there is no further incrimination to be feared.



Where the sentence has not yet been imposed a defendant may have a legitimate fear of adverse consequences from further testimony. As the Court stated in Estelle: "Any effort by the State to compel [the defendant] to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment." Estelle was a capital case, but we find no reason not to apply the principle to noncapital sentencing hearings as well. The essence of this basic constitutional principle is the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips. **** Our rule is applicable whether or not the sentencing hearing is deemed a proceeding separate from the Rule 11 hearing, an issue we need not resolve.

Id. (citations and internal quotation marks omitted). In the instant case, appellant had pled guilty to the offense charged, but her sentence had not been determined. Thus, based on Mitchell, we hold that appellant's guilty plea to the offense charged did not waive her right against self-incrimination as to sentencing.

Mitchell also affects our additional prior finding that, by signing the written waiver, appellant voluntarily waived her right against self-incrimination as to sentencing. The waiver which appellant signed included the following:

10. Pursuant to Article 1.14 of the Texas Code of Criminal Procedure, I waive all rights of form, substance or procedure given me by law.

****

12. I waive my right not to incriminate myself, agree to testify if called as a witness and judicially confess under oath that each and every allegation contained in the indictment or information which is not waived by the State is true and I am guilty of the offense as charged.



In Carroll II, after holding that appellant's plea of guilty constituted a waiver of her right regarding self-incrimination as to sentencing, we went on to note that the provision of the signed waiver referring to "all rights of form, substance or procedure given me by law" constituted a

voluntary waiver to her right against self-incrimination as to sentencing. Carroll II, 975 S.W.2d at 632. Prior to Mitchell, however, it was not settled law that a defendant had a federal constitutional right to remain silent at sentencing. See Anthony J. Phelps, Note, Applicability of the Fifth Amendment Privilege Against Self-Incrimination at Sentencing: Mitchell v. United States Settles the Conflict, 38 Brandeis L.J. 107 (1999/2000). Thus, it was unclear at the time of her plea whether appellant had such a right to silence which could be waived.

In addition to the general waiver clause, the state's plea form contained a clause which specifically warned appellant about waiver of her right against self-incrimination as to guilt. Her right to silence as to guilt and that right's corollary, that in a criminal case no negative inference is permitted from a defendant's invocation of the right to silence, have been settled law for more than thirty years. See Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed.2d 106 (1965); Mitchell, 526 U.S. at 330, 119 S. Ct. at 1316 ("there can be little doubt that the rule prohibiting an inference of guilt from a defendant's rightful silence has become an essential feature of our legal tradition"); Id. at 331-2, 119 S. Ct. at 1316-7 (Scalia, J., dissenting) (acknowledging that "no-adverse-inference" rule has found "wide acceptance in the legal culture"). The issue of whether the right to silence continued at sentencing after a waiver of that right during the guilt phase was unsettled at the time of appellant's plea; it became settled law only after her plea. Thus, appellant was explicitly warned about a waiver of the long-standing right to silence at the guilt phase, but was not given a similar specific warning regarding a right to silence at sentencing. Indeed, she was told by the trial court that she did not have such a right. Carroll I, 946 S.W.2d at 884. After Mitchell, we cannot conclude that the facts presented here show that appellant knowingly, voluntarily, and intelligently waived her federal constitutional right against self-incrimination at sentencing. Neither can we conclude, after Mitchell, that the trial court may consider invocation by appellant of her federal constitutional right to silence as a circumstance against her when determining her punishment.

Appellant's ground for review is sustained. The judgment of the court of appeals is reversed, and the cause is remanded to the court of appeals for proceedings consistent with this opinion.

Johnson, J.



















Date Delivered: March 7, 2001



En Banc



Publish

1. All nine justices agreed that a defendant retains a right to remain silent. Mitchell, 526 U.S. at 316-7, 325-7, 119 S. Ct. at 1309, 1313-4; Id. at 331, 119 S. Ct. at 1316 (Scalia, J., joined by Rehnquist, C.J., and O'Connor and Thomas, JJ., dissenting). The four dissenters would have allowed an adverse inference to be drawn from such silence. Id. at 331-41, 119 S. Ct. at 1316-21 (Scalia, J., joined by Rehnquist, C.J., and O'Connor and Thomas, JJ., dissenting).

2. The precise ground for review granted is whether "[t]he court of appeals has decided an important question of law that is contrary to the Supreme Court of the United States' holding in Mitchell v. United States."