Opinion
No. 05-09-00172-CR
Opinion Filed February 26, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F07-53490-H1.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted appellant of murder and sentenced him to 25 years' imprisonment. In a single issue, appellant asserts the trial court erred in allowing him to be impeached with his post-arrest silence. Concluding appellant's arguments are without merit, we affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit our recitation of the facts. We issue this memorandum opinion pursuant to Tex. R. App. P. 47.4 because the law to be applied in this case is well settled. Ivan Rangel and others were loitering in a motel parking lot when they encountered two men in an SUV. Rangel was fatally shot and appellant was subsequently charged with the murder. Appellant entered a plea of not guilty and the case was tried before a jury. Appellant elected to testify at trial, and described how he and his friend were ambushed by the men in the parking lot. Appellant claimed that he did not know exactly what happened at the scene of the crime after the shooting started because he fled. He testified that he did not call the police because he did not feel he had done anything wrong. On re-cross examination, the following exchange occurred:
Prosecutor: This is the first time you've ever told this version, isn't it?
Appellant: Yes, sir.After appellant answered the question, defense counsel objected, stating "it goes to the defendant's Fifth Amendment right." The trial court overruled the objection. In a single issue, appellant contends the objection was improperly overruled because the question constituted impeachment with his post-arrest silence. The Supreme Court has held that the Fourteenth Amendment's Due Process clause is violated when a defendant's post-arrest silence, at the time of arrest, and after being given Miranda warnings, is used by the State for purposes of impeachment. Doyle v. Ohio, 426 U.S. 610, 618-20 (1976); Fletcher v, Weir, 455 U.S. 603, 607 (1982). When the defendant takes the stand, however, he is subject to cross-examination and impeachment like any other witness, except as limited by overriding constitutional or statutory prohibitions. Cisneros v. State, 692 S.W.2d 78, 83 (Tex. Crim. App. 1985); see also Salazar v. State 131 S.W.3d 210, 214 (Tex. App.-Fort Worth 2004, pet. ref'd) ("The State cannot improperly comment upon a defendant's post-arrest silence when he did not remain silent"); Bell v. State, 867 S.W.2d 958, 962 (Tex. App.-Waco 1994, no pet.) (holding defendant opened door to impeachment on his post-arrest silence). Here, the record does not affirmatively demonstrate that appellant received a Miranda warning; it shows only that he requested an attorney. But even if we assume appellant's invocation of his right to counsel resulted from having received a Miranda warning, we need not decide whether the testimony at issue constitutes proper impeachment or improper comment on post-arrest silence because the defense waived any error by failing to timely and properly object. A defendant must make a timely objection in order to preserve the complaint on appeal. Tex. R. App. P. 33.1(a) (1); Banda v. State, 890 S.W.2d 42, 62 (Tex. Crim. App. 1994). A party must continue to object each time the objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999). The failure to do so forfeits any right to complain of the trial court's action on appeal. Cockrell v. State, 993 S.W.2d 73, 89 (Tex. Crim. App. 1996). Thus, a defendant may waive a complaint of comment on post-arrest silence by failing to timely and properly object. Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994); see Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Salazar, 131 S.W.3d at 214. Prior to defense counsel's objection to the complained-of testimony, a substantial amount of testimony, including some elicited by the defense, dealt with appellant's silence after the murder. Defense counsel first broached the subject when he inquired, "You got shot at, at a motel. Why don't you go call the police and tell them, hey guys, I got shot at, you know, you need to, you know, investigate?" Later, the following testimony was elicited by the prosecutor without objection:
Prosecutor: You ran from there. You never called the police. You never went to the police station and told them someone shot at me, right?
Appellant: No, sir.
. . .
Prosecutor: You know that people got shot. You know that?
Appellant: Yes, sir.
Prosecutor: And you didn't go to the police?
Appellant: No, sir.
. . .
Prosecutor: That night, you didn't tell the police what happened, right?
Appellant: No, sir.
. . .
Prosecutor: So you've had an opportunity to come up with this story?
Appellant: No, sir.
Prosecutor: That you never told the police before.
Appellant: No, sir.On re-direct examination, defense counsel inquired again about whether appellant called the police on the night of the murder. Appellant replied in the negative. All of this testimony was elicited before the complained-of testimony. Considering the amount of testimony on the issue that was already before the jury and counsel's failure to object to the complained-of testimony before appellant had answered, we conclude the issue has not been preserved for our review. See Salazar, 131 S.W.3d at 214-15; Dinkens v. State, 894 S.W.2d 330, 255 (Tex. Crim App. 1995) (holding objection following answer untimely). Appellant's sole issue is resolved against him. We affirm the trial court's judgment.
The Texas Constitution provides additional protection to defendants, barring the use of post-arrest, pre- Miranda silence. See Sanchez v, State, 707 S.W.2d 575, 580 (Tex. Crim. App. 1986). The issue in this case, however, does not involve the Texas constitutional protections because appellant's generic objection was based on the Fifth Amendment and because the issue has not been raised on appeal. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (holding objection referencing Fifth Amendment insufficient to preserve error under Texas Constitution).