445 SW2D 732 - Brumfield v. State

How this case has been cited

Cited by 109 later decisions — most recently December 2017 · most notably Leday v. State (1998), Montoya v. State (1987)

109 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

WOODLEY, Presiding Judge

¶1(concurring).

¶2A defendant who testifies as a witness in his own behalf at his jury trial on the issue of guilt may be cross-examined and recalled for further cross-examination like any other witness.

¶3The question before the court in Stratman v. State, Tex.Cr.App., 436 S.W.2d 144, and in the case at bar is whether the right to recall the defendant for further cross-examination extends to the hearing on the proper punishment to be assessed.

¶4Our holding in Stratman was to the effect that it does where the testimony to be elicited was evidence which was admissible and could have been elicited at the first hearing and was also admissible evidence at the hearing on punishment.

¶5In the case at bar, the defendant was recalled for further cross-examination at the hearing on punishment and testimony was elicited from him which was not admissible and could not have been legally elicited from him or any other witness at the hearing on guilt or innocence, though it was admissible evidence at the punishment hearing.

¶6We properly held on original submission that it was error to permit the state to recall the defendant and require him to give such testimony.

¶7For the reasons stated I concur in the overruling of the state’s motion for rehearing.

BELCHER, J., joins in this concurrence.

¶8DOUGLAS, J., not participating.