Cisneros v. State
| Decision Date | 12 June 1985 |
| Docket Number | No. 054-83,054-83 |
| Citation | 692 S.W.2d 78 |
| Parties | Noe CISNEROS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joseph A. Connors, III, McAllen, Larry Warner, Port Isabel, for appellant.
Edna Cisneros, Dist. Atty., and Lee P. Fernon, Asst. Dist. Atty., Raymondville, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was indicted for murder. A jury found him guilty of the lesser included offense of voluntary manslaughter. His punishment was assessed by the court at 20 years' imprisonment.
On appeal the appellant urged, inter alia, the trial court reversibly erred in overruling his timely objection to his cross-examination by the prosecutor "about his remaining silent and failing to advise law enforcement about his defense of self defense." Finding no error the Corpus Christi Court of Appeals affirmed the conviction in an unpublished opinion. Cisneros v. State (No. 13-81-335 CR, Dec. 9, 1982).
We granted appellant's petition for discretionary review limited to appellant's ground of review that the "lower courts reversibly erred when they sanctioned the prosecutor's cross-examination about appellant bringing up his self-defense claim for the first time there in the courtroom."
Appellant argues that questions on cross-examination improperly referred to his prearrest and postarrest silence and infringed on his federal and state constitutional rights. He cites Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), and Franklin v. State, 606 S.W.2d 818 (Tex.Cr.App.1978). Both of these cases dealt with the improper impeachment of the defendant as a witness in his own behalf, not merely the asking of improper questions. It appears that appellant contends both improper questioning and improper impeachment. He urges that here was a violation of the Fourteenth Amendment, United States Constitution, Article I, §§ 10 and 19 of the Texas Constitution and Articles 1.04, 1.05 and 38.08, V.A.C.C.P.
The evidence reflects that the appellant and the deceased, Raquel Loya Cantu, had lived together for some years, and their relationship had been stormy. On the night of December 15, 1979, they went to Joe's Barbeque to dance and drink beer. Later, about 2 a.m. on December 16 they drove to the Bus Stop or Continental Lounge in Raymondville. After Cantu crossed the street and was talking with friends in front of the lounge appellant, from some feet away, made some insulting remarks to Cantu, who told appellant to "Shut up." At this point appellant pulled a gun and began shooting. When the shooting was over, Cantu and another person were dead, and three other individuals were wounded. It is undisputed that appellant then fled and was not present at the investigation at the scene which followed. After talking the next day to his boss, Daniel Butler, at the ranch where he worked, appellant surrendered to authorities. The record does not show whether appellant received the warnings pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), nor were facts developed to show what transpired after his arrest.
Investigating officers found a knife at the scene of the killing. The doctor who performed the autopsy testified the fatal bullet had entered behind the left ear of the deceased and lodged in the spinal column.
Butler was called as a State's witness and during his testimony it was revealed appellant told him (Butler) that he shot Cantu, that he was intoxicated and did not realize what he was doing.
Before the appellant offered any testimony, it was thus established by undisputed evidence from the State's case-in-chief that the appellant had left the scene of the killing without waiting for the officers, and that he had told Butler he was intoxicated and did not realize what he was doing when he shot Cantu.
Thereafter, testifying in his own behalf, appellant admitted that he shot and killed Raquel Cantu, but claimed he acted in self-defense. He told how Cantu had cut him on other occasions, and that just before the shooting Cantu had brandished a knife and had stabbed him before he fired his weapon. 1
On cross-examination of the appellant the record reflects the prosecutor asked:
It is observed that the prosecutor first elicited from the appellant, without objection, that he did not stay at the scene and tell the police what happened, and that he told Butler he was drunk and hadn't realized what he had done. This was in accord with the earlier testimony from the State's case-in-chief.
To the initial question about self-defense coming up at trial "for the first time," appellant's counsel commented To the second such question appellant's counsel recited what he thought Butler had said, etc. To both comments the court in effect stated, "If you are objecting, I will overrule your objection." Neither question was ever answered. The prosecutor then returned to the repetitive questions about failure to stay at the scene and what appellant told Butler. When she returned to the "first time" interrogation, appellant parried "What do you mean?" To the next "first time" question counsel made a general objection, The objection was overruled. When asked to answer the question, appellant responded with "Would you repeat, please?" The prosecutor returned to her repetitive questions. The interrogation concluded with questions about appellant's conversation with Butler. At no time did appellant ever answer any question about his self-defense being asserted for the first time at trial.
It is fundamental that an error to the examination of witnesses or to the admission of evidence is not preserved for appellate review absent a timely objection at trial. Thomas v. State, 530 S.W.2d 834 (Tex.Cr.App.1975); Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976); Crocker v. State, 573 S.W.2d 190, 205 (Tex.Cr.App.1978); Ross v. State, 678 S.W.2d 491 (Tex.Cr.App.1984). See also Cooper v. State, 578 S.W.2d 401 (Tex.Cr.App.1979); Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980).
In Martinez v. State, 437 S.W.2d 842, 847 (Tex.Cr.App.1969), this Court wrote:
See also Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978); Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974), cert. den. 420 U.S. 910 [95 S.Ct. 830, 42 L.Ed.2d 840]. Failure to...
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