Heidelberg v. State

• Decision Date: 15 September 2004
• Docket Number: No. 1418-03.,1418-03.
• Parties: Donald C. HEIDELBERG, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

144 S.W.3d 535

Donald C. HEIDELBERG, Appellant v. The STATE of Texas.

No. 1418-03.

Court of Criminal Appeals of Texas, En Banc.

September 15, 2004.

Appeal from the 228th District Court, Harris County, Robert A. Jones, J.

Brian W. Wice, Houston, for Appellant.

William J. Delmore, III, Asst. District Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION

MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and WOMACK, KEASLER, HERVEY, and Cochran, JJ., join.

Appellant was indicted for sexually assaulting his wife's eight-year-old granddaughter. Appellant and his wife were babysitting the victim when, according to the victim, Appellant came into her room while she was sleeping and fondled her and stuck his penis in her anus. Appellant denied the accusations and took the stand in his own defense. The jury convicted him and sentenced him to 25 years in prison. He now appeals, arguing that the Court of Appeals erred in holding that he failed to preserve the claims that the trial court erred in: 1) permitting the prosecutor to cross examine him about his post-arrest silence, 2) permitting the prosecutor to elicit rebuttal testimony about his post-arrest silence through Detective James Fitzgerald, and 3) overruling Appellant's objections to the prosecutor's comments on his post-arrest silence during final argument in the guilt-innocence stage of trial.

The first ground for review claimed by Appellant pertains to the State's cross-examination at trial, when it began questioning Appellant about his willingness to speak to the investigator and whether he knew that the investigator was trying to contact him about the allegations. The following exchange occurred:

[STATE]: Mr. Heidelberg, you certainly knew that Detective Fitzgerald was trying to get a hold of you [to] talk to you, didn't you?

[DEFENSE COUNSEL]: Objection, Your Honor. This goes to the Fifth Amendment right, my client's Fifth Amendment. He doesn't have to talk to anybody.

[COURT]: Be overruled.

* * *

[STATE]: Did you ever ask to talk to the detective about this case once you knew that the charges were there?

[APPELLANT]: I didn't know about any charges until July of this year.

[STATE]: And in July of this year did you ask to talk to the detective in the case?

[APPELLANT]: Well, I was already incarcerated. So —

[STATE]: Well, did you ever ask anyone —

[DEFENSE COUNSEL]: Objection, Your Honor. This goes to the Fifth Amendment.

[COURT]: Overruled. Answer the question.

* * *

[STATE]: You certainly could have talked with the investigating officer on this case and explained to him, in your opinion, why [the complainant] made this up, right?

[DEFENSE COUNSEL]: Objection, your Honor. My client — all of this line of questioning goes to the Fifth Amendment. My client does not have to speak with anyone about it.

[COURT]: Be overruled.

Appellant's second ground for review refers to the State's rebuttal, when it offered the testimony of Detective Fitzgerald. The following exchange between the prosecutor and the detective occurred:

[STATE]: Were you able to make contact with the defendant?

[FITZGERALD]: In a way.

[DEFENSE COUNSEL]: Objection, Your Honor. I would like to renew my objection as to my client's Fifth Amendment right.

[COURT]: Be Overruled.

[DEFENSE COUNEL]: May I have a standing objection throughout so I'm not have to —

[COURT]: You may.

* * *

[STATE]: Once the defendant was placed under arrest, had he wanted to talk to you, would you have sat down and spoken with him?

[FITZGERALD]: Oh, definitely; yes, ma'am.

As to Appellant's third ground for review, the State made the following comment during rebuttal argument at the guilt/innocence stage:

[STATE]: Do you really believe he wanted to wait five months from the date of arrest, he saved all that information to come and tell you? Of course not, that's garbage.

[DEFENSE COUNSEL]: Your Honor, I object again. And may I have a standing objection to any reference to the Fifth Amendment?

[COURT]: That will be overruled.

On appeal, Appellant contends that the trial court erred in allowing the State to refer to Appellant's post-arrest silence in violation of Article I, section 10 of the Texas Constitution. The State, however, urges that Appellant did not preserve error because his objections at trial were based solely on the Fifth Amendment. The Fifth Amendment of the federal constitution protects post-arrest silence made only after Miranda warnings have been given. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982); Doyle v. Ohio, 426 U.S. 610, 618, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976). Article I, section 10 of the Texas Constitution, however, protects a defendant's post-arrest silence even before such warnings have been administered. Sanchez v. State, 707 S.W.2d 575, 582 (Tex.Crim.App.1986). Thus, in the present context, the trial judge properly overrules an objection based on "the Fifth Amendment." An objection referring specifically to the Texas Constitution or the Sanchez case, however, pointing out that this Court has barred the use of post-arrest, pre-Miranda statements to impeach a testifying defendant, would be an entirely different matter.

Texas Rule of Appellate Procedure 33.1(a)(1)(A) provides, in relevant part, that for a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court, which "states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. RULES APP. PROC. ANN. art. 33.1(a)(1)(A) (Vernon 2002) (emphasis added). Texas Rules of Evidence 103(a)(1) contains similar guidelines, providing that "a timely objection or motion to strike [must appear] on the record, stating the specific ground of objection, if the specific ground was not apparent from the context." TEX. EVID. R. ANN. art. 103(a)(1) (Vernon 2002) (emphasis added). Additionally, it is well settled that the legal basis of a complaint raised on appeal cannot vary from that raised at trial. Euziere v. State, 648 S.W.2d 700, 703-704 (Tex.Crim.App.1983).

In its holding, the Court of Appeals agreed that the trial court erred in allowing questions and comments pertaining to Appellant's post-arrest silence. Heidelberg v. State, 112 S.W.3d 658 (Tex.App.-Houston [1st Dist.] 2003). However, on rehearing, the court held that because Appellant's objections at trial were based solely on the Fifth Amendment, Appellant did not preserve error on the Texas constitutional claim. Id. at 661-662. The Court of Appeals relied on two cases, Barnum v. State, 7 S.W.3d 782 (Tex.App.-Amarillo 1999), and Cantu v. State, 994 S.W.2d 721 (Tex.App.-Austin 1999, pet. dism'd), improvidently granted, in its decision. In Cantu, the defendant was convicted of first-degree murder. Id. at 725. At trial, the court allowed expert testimony over the defendant's objection. On appeal, the defendant argued that the trial court erred in admitting certain testimony at the punishment phase of trial, violating his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, as well as his rights under Article 1, sections 10 and 19 of the Texas Constitution. Id. at 732. In deciding that the defendant failed to preserve for review any state constitutional claims, the court of appeals stated that "defense counsel never raised the issue of state constitutional requirements at trial." Id. The court additionally commented that the defendant had relied solely on a federal case regarding the Fifth and Sixth Amendments to the federal constitution when making his objection, and noted that a defendant's errors presented on review must be the same as the objections raised at trial. Id. at 733.

The defendant in Cantu had also claimed that his state statutory rights were violated under section 54.09 of the Texas Family Code, which sets out certain rights for juveniles. At trial, when the allegedly improper testimony was being solicited, the defendant had objected, saying: "And that also brings up the interesting issue as to whether the waiver is valid at the time because he's not been certified as an adult at that time. And he requires special Mirandizing and magistration before any questioning begins." Id. at 733. The court of appeals held that this objection was insufficient to preserve the state statutory claim for review because the statement was "too general" to have alerted the trial court that the defendant was averring to that section of the Family Code. Id. at 733. Additionally, the court of appeals stated that: "[There was] no indication from the record that the trial judge understood that the state statute was an authority for defense counsel's objection to the evidence. Moreover, the statement was made in the context of an argument that specifically identified federal law grounds for excluding [the doctor's] testimony." Id. at 733.

In Barnum, the defendant was convicted of murder. Id. at 786. At trial, the State admitted a written statement by the victim, to which the defendant objected on the basis of hearsay and a violation of his Sixth Amendment right to confrontation. Id. at 789. On appeal, the defendant claimed that his federal Sixth Amendment and his State rights to confrontation under Article 1, section 10 of the Texas Constitution, were violated. Id. at 794. The court of appeals commented that the defendant had not preserved the state constitutional claim for review because his objection at trial "did not include a timely objection based on his asserted right under the Texas Constitution." Id. at 794.

While it is true that the court's discussions in Cantu and Barnum are dicta,¹ the cases give support to the notion that presenting a claim based solely on federal grounds will not suffice to put the court on notice...