Samuel v. State
Decision Date | 20 February 1985 |
Docket Number | No. 1064-83,1064-83 |
Parties | Andrew Lee SAMUEL, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Bill Roberts, Dallas, for appellant.
Henry Wade, Dist. Atty. and Tom Streeter, David Lewis and Steve Miller, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was found guilty by a jury of the offense of forgery. Having also been found to be an habitual offender, appellant was assessed a life sentence. The Dallas Court of Appeals in an unpublished opinion reversed the conviction and remanded the case for a new trial.
The court of appeals ruled that evidence of appellant's silence during a vigilante arrest was admitted in violation of State law, and found this error not to be harmless beyond a reasonable doubt. We granted the State's petition for discretionary review in order to examine the State's contention that the objections voiced by appellant at trial were not sufficient to preserve error on the basis of State law.
Late in the afternoon of December 29, 1981 appellant entered the Star Liquor Store at 905 San Jacinto, in downtown Dallas. Appellant "cut in front of" the half a dozen or so customers in the store to present a check to Erick Dickerson, the store owner, to be cashed. The check was made out to appellant, drawn against the account of one "Scottie Adams." 1 When asked if the check was his, and told it would have to be verified, appellant asserted, "it's a good check." On request he presented a temporary driver's license as identification. Dickerson proceeded to call Scottie Adams, and was informed the check was unauthorized. Meanwhile appellant attempted to retrieve the check and license and, failing that, he abandoned them and left the store. Dickerson then cleared his store of customers and pursued appellant with a shotgun.
On direct examination Dickerson testified as to what happened next:
In the course of arguing to the jury on the element of appellant's intent to defraud or harm another, the prosecutor alluded to the foregoing testimony as follows:
The court of appeals reversed the conviction on the ground that the trial court erroneously allowed the State to introduce evidence of appellant's post arrest silence. Citing Hill v. State, 643 S.W.2d 417 (Tex.App.--Houston [14th] 1982), the court of appeals first held that appellant's detention by shotgun point prior to the arrival of police officers constituted an arrest in that appellant had "been actually placed under restraint ... by [a] ... person arresting without a warrant." Article 15.22, V.A.C.C.P. See Hardinge v. State, 500 S.W.2d 870 (Tex.Cr.App.1973). 2 The court then held that as a matter of State law, evidence of appellant's silence while so restrained was inadmissible as evidence of his guilt. The court concluded that the trial court's error in admitting this evidence and allowing the prosecutor to argue it was not harmless beyond a reasonable doubt.
The State now contends that the appellant's objection at trial was not sufficiently specific to preserve error as a matter of State law; 3 that nothing but Federal constitutional grounds can be considered, and that as a matter of Federal constitutional law, post arrest but pre Miranda silence may be considered, not only for purposes of impeachment, see Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), but also for purposes of establishing guilt. For the proposition that a State law issue was not preserved, the State relies on the very case cited by the court of appeals in the first step of its analysis, see ante, viz: Hill v. State, supra.
The Hill case is inapposite to the State's contention. In Hill, the defendant filed two motions to suppress evidence obtained as a result of his warrantless vigilante arrest. One of the motions expressly relied on the exclusionary rule of the Fourth Amendment, which ground was reiterated in the defendant's trial objection. The other was characterized by the court of appeals as a "general catchall motion," specifying no particular legal ground. The court of appeals overruled the defendant's complaint on appeal, finding the Federal exclusionary rule inapplicable to vigilante arrests, which do not constitute a governmental action. The court further noted that, though Art. 38.23, V.A.C.C.P. would apply to an illegal vigilante arrest, neither of the defendant's motions invoked this provision as a ground for exclusion. Therefore error was not preserved for appellate rule on this basis, see Nelson v. State, 607 S.W.2d 554 (Tex.Cr.App.1980).
Initially we note that this Court expressly overturned this finding of the court of appeals on defendant Hill's petition for discretionary review, handed down by the Court one full year prior to the filing of the State's petition for discretionary review in the instant cause. Hill v. State, 641 S.W.2d 543 (Tex.Cr.App.1982). 4 There we reiterated the observation in Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977) that:
[Emphasis in original.]
We held that the motion the court of appeals considered a "catchall," while it "may have left something to be desired from the standpoint of clarity," 641 S.W.2d at 544, was nevertheless sufficient to apprise the court of the nature and basis of the defendant's objection.
The appellant's objection to Dickerson's testimony may have been terse and almost in the nature of an afterthought. Following his objection on the basis of a leading question, 5 appellant's counsel simply stated, "I'll object to statements made after [appellant] was under arrest." Under similar facts we have observed that:
Hicks v. State, 493 S.W.2d 833, 837 (Tex.Cr.App.1973). 6 Still, while appellant's objection did not rise to the...
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