Fifth Amendment privilege in Texas

2026As Appellant acknowledges, her Fifth Amendment claim derives from Estelle v. Smith—barring the admission of statements obtained from a State’s expert in a competency hearing for purposes other than competency when the defendant was not warned beforehand that the statements could be used for such other purposes.21 This type of claim is ultimately based on the prophylactic rule articulated in Miranda v. Arizona,22 conditioning, with exceptions, the admissibility of a custodial statement by a defendant on the prior giving of warnings regarding the right to 21 See Estelle, 451 U.S. at 461-69 . 22

2025Officer Martinez then read Miranda rights to Tropp, who confirmed he understood them and said he had been swimming in the river but did not discuss any interaction with E.O.: 4 See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (requiring that law-enforcement officers wanting to question person who has been taken into custody or deprived of their freedom in any significant way by authorities must first warn that person of certain constitutionally protected rights securing person’s Fifth Amendment privilege against self-incrimination). 4 Officer Martinez: Ok, perfect.

2024Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995)). - 20 - “Blanket assertions of the Fifth Amendment privilege are not permitted in civil cases.” In re Commitment of Chapman, 2013 WL 4773231 , at *10.

2024Thus, the “Fifth Amendment’s privilege against self- incrimination ‘not only extends to answers that would in themselves support a conviction under a . . . statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a . . . crime.’” Id. (quoting United States v. Hubbell, 530 U.S. 27, 38 (2000)) (alterations in original).

2019When a defendant’s Sixth Amendment rights intersect with a witness’s Fifth Amendment privilege, “[a] valid assertion of the witness’s Fifth Amendment rights justifies a refusal to testify despite the defendant’s Sixth Amendment rights.” United States v. Ramos, 537 F.3d 439, 448 (5th Cir. 2008) (quoting United States v. Goodwin, 625 F.2d 693, 700 (5th Cir. 1980)); see Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986) (an individual’s constitutional privilege against self-incrimination overrides a defendant’s constitutional right to compulsory process of witnesses).

2019When a defendant’s Sixth Amendment rights intersect with a witness’s Fifth Amendment privilege, “[a] valid assertion of the witness’s Fifth Amendment rights justifies a refusal to testify despite the defendant’s Sixth Amendment rights.” United States v. Ramos, 537 F.3d 439, 448 (5th Cir. 2008) (quoting United States v. Goodwin, 625 F.2d 693, 700 (5th Cir. 1980)); see Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986) (an individual’s constitutional privilege against self-incrimination overrides a defendant’s constitutional right to compulsory process of witnesses).

2019The Court of Criminal Appeals explained in Johnson, “[t]his 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.” Id. (citing Minnesota v. Murphy, 465 U.S. 420, 427 (1984); Marin, 851 S.W.2d at 279 ).

2019The Court of Criminal Appeals explained in Johnson, “[t]his 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.” Id. (citing Minnesota v. Murphy, 465 U.S. 420, 427 (1984); Marin, 851 S.W.2d at 279 ).

2014THUESEN - 100 what happened would be Mr. Thuesen.” Neither the trial judge nor the prosecutor may comment on the defendant’s failure to testify, and any such comment violates the Fifth Amendment privilege against self-incrimination.130 However, it is not sufficient that the language might be construed as an implied or indirect allusion to a defendant’s failure to testify.131 The prosecutor may comment upon the testimony and evidence actually presented during the guilt stage, and such a comment is not construed as a comment on the defendant’s choice to remain silent during the punishment stage.

2014THUESEN - 100 what happened would be Mr. Thuesen.” Neither the trial judge nor the prosecutor may comment on the defendant’s failure to testify, and any such comment violates the Fifth Amendment privilege against self-incrimination.130 However, it is not sufficient that the language might be construed as an implied or indirect allusion to a defendant’s failure to testify.131 The prosecutor may comment upon the testimony and evidence actually presented during the guilt stage, and such a comment is not construed as a comment on the defendant’s choice to remain silent during the punishment stage.

2015Similarly, both Courts have held that the Fifth Amendment insulates probationers from compelled self-incrimination regarding future criminal prosecutions, Murphy, 465 U.S. at 426 , and that the State may “not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” Dansby, 398 S.W.3d at 240 (quoting Murphy, 465 U.S. at 426 ); see also Chapman, 115 S.W.3d at 6 .

2015Similarly, both Courts have held that the Fifth Amendment insulates probationers from compelled self-incrimination regarding future criminal prosecutions, Murphy, 465 U.S. at 426 , and that the State may “not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.” Dansby, 398 S.W.3d at 240 (quoting Murphy, 465 U.S. at 426 ); see also Chapman, 115 S.W.3d at 6 .

2024The Fifth Amendment’s privilege against self-incrimination “not only extends to answers that would in themselves support a conviction under a . . . statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a . . . crime.” United States v. Hubbell, 530 U.S. 27, 38 (2000) (quoting Hoffman v. 5 United States, 341 U.S. 479, 486 (1951)).

2019As noted by the court of criminal appeals, “[t]hough innocence is no impediment to asserting the Fifth Amendment privilege, the privilege’s protection extends only to witnesses who have ‘reasonable cause to apprehend danger from a direct answer.’” Walters, 359 S.W.3d at 215 , (quoting Hoffman, 341 U.S. at 486 , 71 S.Ct. at 818 ).

2015Applying these concepts in the context of a guilty plea and a subsequent plea colloquy, the Court observed that a defendant’s Fifth Amendment privilege would extend to that situation because to hold otherwise would be to permit the government to “enlist the defendant as an instrument in his 'or her own condemnation]:.']” Id. at 325 , 119 S.Ct. 1307 .

2015Applying these concepts in the context of a guilty plea and a subsequent plea colloquy, the Court observed that a defendant’s Fifth Amendment privilege would extend to that situation because to hold otherwise would be to permit the government to “enlist the defendant as an instrument in his 'or her own condemnation]:.']” Id. at 325 , 119 S.Ct. 1307 .

2010See Burton v. West , 749 S.W.2d 505 , 507–08 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding) (holding in civil forfeiture case that relator may not make blanket Fifth Amendment objection to all interrogatories propounded, but must instead state objections to each individual interrogatory); see also, e.g. , In re Edge Capital Group, Inc. , 161 S.W.3d 764, 768 (Tex. App.—Beaumont 2005, orig. proceeding) (blanket assertions of Fifth Amendment privilege generally are not permitted in civil cases); In re R.R. , 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding) (trial court could r

2010See Burton v. West , 749 S.W.2d 505 , 507–08 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding) (holding in civil forfeiture case that relator may not make blanket Fifth Amendment objection to all interrogatories propounded, but must instead state objections to each individual interrogatory); see also, e.g. , In re Edge Capital Group, Inc. , 161 S.W.3d 764, 768 (Tex. App.—Beaumont 2005, orig. proceeding) (blanket assertions of Fifth Amendment privilege generally are not permitted in civil cases); In re R.R. , 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding) (trial court could r

2018In connection with that right, "a state may 'not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.' " Id. at 240 (quoting *747 Minnesota v. Murphy , 465 U.S. 420 , 438, 104 S.Ct. 1136 , 1148, 79 L.Ed.2d 409 (1984) ).

2018In connection with that right, "a state may 'not constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.' " Id. at 240 (quoting *747 Minnesota v. Murphy , 465 U.S. 420 , 438, 104 S.Ct. 1136 , 1148, 79 L.Ed.2d 409 (1984) ).

2019Moreover, a defendant has no right to call a witness merely to have him “assert or invoke his Fifth Amendment privilege against self-incrimination in the presence of the jury.” Ellis, 683 S.W.2d at 382 ; Mendoza v. State, 552 S.W.2d 444 (Tex. Crim. App. 1977); Victoria v. State, 522 S.W.2d 919 (Tex. Crim. App. 1975); Rodriquez v. State, 513 S.W.2d 594, 596 (Tex. Crim. App. 1974).

2000We find that the case law on this issue does not support Lloyd's contention of error. "[T]his court has repeatedly held that a defendant has no right to have a witness assert or invoke his Fifth Amendment privilege against self-incrimination in the presence of the jury." Ellis v. State , 683 S.W.2d 379, 382 (Tex. Crim.

2015See Shea v. Louisiana, 470 U. S. 51, 59 (1985) (the Fifth Amendment rule announced in Edwards v. Arizona, 451 U. S. 477 (1981), which prohibited the use, after a suspect had requested counsel, of a confession obtained by police-instigated interrogation without the suspect’s attorney’s being present, was retroactive to cases on direct review when Edwards was decided.

2015See Shea v. Louisiana, 470 U. S. 51, 59 (1985) (the Fifth Amendment rule announced in Edwards v. Arizona, 451 U. S. 477 (1981), which prohibited the use, after a suspect had requested counsel, of a confession obtained by police-instigated interrogation without the suspect’s attorney’s being present, was retroactive to cases on direct review when Edwards was decided.

2024See In re J.J., No. 14-19-00622-CV, 2020 WL 428859 , at *6 (Tex. App.— Houston [14th Dist.] Jan. 28, 2020, pet. denied) (mem. op.) (citing Baxter v. Palmigiano, 425 U.S. 308 , 316-19 (1976) (in civil cases, court may draw adverse inference from assertion of Fifth Amendment privilege)).

2020V; Baxter v. Palmigiano, 425 U.S. 308 , 316-19 (1976) (in civil cases, court may draw adverse inference from assertion of Fifth Amendment privilege).

2023See In re Edge Capital Grp., Inc., 161 S.W.3d 764, 768 (Tex. App.—Beaumont 2005, orig. proceeding); Gebhardt v. Gallardo, 891 S.W.2d 327, 330 (Tex. App.—San Antonio 1995, orig. proceeding); Burton v. West, 749 S.W.2d 505, 508 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding); see also In re Lytle, No. 12-15- 00216-CV, 2015 WL 8959428 , at *2 (Tex. App.—Tyler Dec. 16, 2015, orig. proceeding) (mem. op.); In re Alvarez, No. 01-07-00569-CV, 2007 WL 3227654 , at *1 (Tex. App.— Houston [1st Dist.] Oct. 29, 2007, orig. proceeding) (mem. op.).

2023See In re Edge Capital Grp., Inc., 161 S.W.3d 764, 768 (Tex. App.—Beaumont 2005, orig. proceeding); Gebhardt v. Gallardo, 891 S.W.2d 327, 330 (Tex. App.—San Antonio 1995, orig. proceeding); Burton v. West, 749 S.W.2d 505, 508 (Tex. App.—Houston [1st Dist.] 1988, orig. proceeding); see also In re Lytle, No. 12-15- 00216-CV, 2015 WL 8959428 , at *2 (Tex. App.—Tyler Dec. 16, 2015, orig. proceeding) (mem. op.); In re Alvarez, No. 01-07-00569-CV, 2007 WL 3227654 , at *1 (Tex. App.— Houston [1st Dist.] Oct. 29, 2007, orig. proceeding) (mem. op.).

2014Noting that a jury may consider an invocation of a Fifth Amendment privilege under some circumstances, the Coffey Court observed that “[t]he fatal flaw in appellant’s reasoning is the unstated assumption that any negative inference made by a jury when a witness refuses to testify is improper.” Coffey, 796 S.W.2d at 178 .

2014Noting that a jury may consider an invocation of a Fifth Amendment privilege under some circumstances, the Coffey Court observed that “[t]he fatal flaw in appellant’s reasoning is the unstated assumption that any negative inference made by a jury when a witness refuses to testify is improper.” Coffey, 796 S.W.2d at 178 .

2022See Speer, 965 S.W.2d at 46 .

2019Speer, 965 S.W.2d at 45–46; see In re R.R., 26 S.W.3d at 574 .

2019The Lagrone court noted that Soria had been “based upon the premise that ‘a defendant waives his Fifth Amendment rights to a limited extent by presenting psychiatric testimony on his behalf’” and “explained that the ‘introduction by the defense of psychiatric testimony based upon an examination of the defendant constitute[s] a waiver of the defendant’s Fifth Amendment privilege in the same manner as would the defendant’s election to testify at trial.’” Id. at 610–11 (quoting Battie v. Estelle, 655 F.2d 692 , 701–02 (5th Cir. 1981) and Soria, 933 S.W.2d at 53–54).

2019The Lagrone court noted that Soria had been “based upon the premise that ‘a defendant waives his Fifth Amendment rights to a limited extent by presenting psychiatric testimony on his behalf’” and “explained that the ‘introduction by the defense of psychiatric testimony based upon an examination of the defendant constitute[s] a waiver of the defendant’s Fifth Amendment privilege in the same manner as would the defendant’s election to testify at trial.’” Id. at 610–11 (quoting Battie v. Estelle, 655 F.2d 692 , 701–02 (5th Cir. 1981) and Soria, 933 S.W.2d at 53–54).

2025A “defendant’s right to present evidence must yield to the opposing Fifth Amendment privilege against self-incrimination if the witness has a legitimate fear of possible incrimination.” Id. (citing Walters v. State, 359 S.W.3d 212, 215-16 (Tex. Crim. App. 2011)).

2022Ohio v. Reiner, 532 U.S. 17 , 21– 22 (2001) (per curiam) (babysitter who was with infant within the timeframe of the fatal trauma had valid Fifth Amendment privilege against self-incrimination); Walters, 359 S.W.3d at 216 (witness who was with defendant at time of stabbing and may have encouraged the stabbing had valid Fifth Amendment privilege against self-incrimination); Barcenes v. State, 940 S.W.2d 739, 747 (Tex. App.—San Antonio 1997, pet. ref’d) (mother who left baby in exclusive care of defendant on the night of baby’s fatal injuries and who was under indictment for injury to a child by

2026As Appellant acknowledges, her Fifth Amendment claim derives from Estelle v. Smith—barring the admission of statements obtained from a State’s expert in a competency hearing for purposes other than competency when the defendant was not warned beforehand that the statements could be used for such other purposes.21 This type of claim is ultimately based on the prophylactic rule articulated in Miranda v. Arizona,22 conditioning, with exceptions, the admissibility of a custodial statement by a defendant on the prior giving of warnings regarding the right to 21 See Estelle, 451 U.S. at 461-69 . 22

1999In Estelle , the Court observed: “The Fifth Amendment privilege is ‘as broad as the mischief against which it seeks to guard,’ and the privilege is fulfilled only when a criminal defendant is guaranteed the right ‘to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.’ ” 451 U.S. at 467-68 , 101 S.Ct. 1866 (quoting Counselman v. Hitchcock, 142 U.S. 547, 562 , 12 S.Ct. 195 , 35 L.Ed. 1110 (1892), and Malloy v. Hogan, 378 U.S. 1, 8 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964)) (alterations in the original).

2025XIV; see Malloy v. Hogan, 378 U.S. 1, 3 (1964) (“We hold that the Fourteenth Amendment guaranteed the petitioner the protection of the Fifth Amendment’s privilege against self-incrimination[.]”); see also Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim.

2024XIV; Malloy v. Hogan, 378 U.S. 1, 6 (1964) (explaining that “the Fifth Amendment’s exception from compulsory self-incrimination” applies to the states through the Fourteenth Amendment’s Due Process Clause).

2026A trial court does not “abuse its discretion in disallowing the defense witness’ direct testimony when the witness[, invoking her Fifth Amendment privilege,] 4 refused to answer questions on cross-examination which were relevant to the subject matter of the inquiry or which related to the witness’ direct testimony.” Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim.

2026A trial court does not “abuse its discretion in disallowing the defense witness’ direct testimony when the witness[, invoking her Fifth Amendment privilege,] 4 refused to answer questions on cross-examination which were relevant to the subject matter of the inquiry or which related to the witness’ direct testimony.” Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim.

2024But the amount of evidence already collected against Peters is irrelevant: “[T]he witness need only show that an answer to the question is likely to be hazardous to him . . . .” Butler, 4 A waiver of the Fifth Amendment privilege must be “made voluntarily, knowingly and intelligently.” Colorado v. Spring, 479 U.S. 564, 572 (1987) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). 6 522 S.W.2d at 198 .

2024But the amount of evidence already collected against Peters is irrelevant: “[T]he witness need only show that an answer to the question is likely to be hazardous to him . . . .” Butler, 4 A waiver of the Fifth Amendment privilege must be “made voluntarily, knowingly and intelligently.” Colorado v. Spring, 479 U.S. 564, 572 (1987) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). 6 522 S.W.2d at 198 .

2025If not, “where criminating facts have been voluntarily revealed, the privilege cannot be invoked to avoid disclosure of the details.” Rogers, 340 U.S. at 373 . 9 Notably, “[t]he Constitution does not require that [someone invoking Fifth Amendment privilege] know and understand every possible consequence of a waiver of the Fifth Amendment privilege.” Spring, 479 U.S. at 574 . 23 MR.229 80:4-23.

2025Several other questions that Patient 15 refused to answer on the basis of Fifth Amendment privilege 7 The State maintains that this question should not be qualified by time period, given that it does not implicate any particular time period and therefore has no tendency to incriminate. 8 The State maintains that this question should not be qualified by time period, given that it does not implicate any particular time period and therefore has no tendency to incriminate. 22 Colorado v. Spring, 479 U.S. 564, 572 (1987) (citation omitted).

2026“A party may invoke his Fifth Amendment privilege against self-incrimination in a civil proceeding if he reasonably fears that the answer sought might incriminate him.” In re A.B., 372 S.W.3d 273, 275 (Tex. App.—Fort Worth 2012, no pet.) (citing United States v. Balsys, 524 U.S. 666 , 671–72 (1998)); see U.S. CONST. amend.

2023In responses to several requests for admissions propounded by the real parties in interest involving post-accident drug testing, Jones asserted a Fifth Amendment privilege. “[T]he Fifth Amendment provides that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’” United States v. Balsys, 524 U.S. 666, 671 (1998) (quoting U.S. CONST. amend.