ON STATE 'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS DALLAS COUNTY
The appellant was indicted for possession of less than twenty-eight grams of cocaine with intent to deliver. The trial court then assessed punishment at ten years confinement. The appellate court held that the appellant did not knowingly, voluntarily, and intelligently waive his right to remain silent. Because it also concluded that the appellant's failure to object did not waive his complaint for appellate review, it sustained the appellant's Sixth Amendment claim and remanded the case to the trial court for a new punishment hearing. The appellate court correctly concluded that the appellant was improperly influenced to testify in violation of his Fifth Amendment right to remain silent. The appellant argued that his trial was unfair because the trial court compelled him to testify at the punishment phase in violation of his Fifth Amendment right to silence. The Texas Court of Criminal Appeals noted that the record in the instant case revealed that neither statement by the trial court amounted to a threat that the appellant would be penalized for exercising his constitutional right to silence. To the contrary, that the appellant could not have reasonably believed that he was confronted with the choice either to be silent and be punished or to capitulate and give incriminating statements against his will. Instead, the record in the instant case showed that, like Birdsong v. State, 82 S.W.3d 538, 544 (Tex. App.--Austin 2002, no pet.), the appellant and his counsel perceived an opportunity to offer mitigating evidence in the hope of leniency at sentencing. The appellant invoked his right to remain silent in the guilt phase, and was thus aware of his right, and that the appellant lodged no objection to being called to the stand or to the questions asked. Thus, the appellant was not confronted with a penalty situation and that, as a result, he could not now claim a violation of his Fifth Amendment privilege to remain silent. Because appellant was not confronted with the "classic penalty situation," he forfeited his Fifth Amendment right to remain silent when he voluntarily took the stand in his own defense. Accordingly, the appellate court's judgment was reversed and the trial court's judgment was affirmed.