Sanchez v. State, 911-82

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation707 S.W.2d 575
Docket NumberNo. 911-82,911-82
PartiesJacinto SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
Decision Date19 March 1986

Kenneth A. Korth, Rex L. Easley, Jr., Victoria, for appellant.

Knute L. Dietze, Former Dist. Atty., George J. Filley, III, Dist. Atty., Victoria, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.


MILLER, Judge.

Appellant was charged by indictment with the offense of murder. Trial was before a jury and appellant was convicted of the lesser included offense of voluntary manslaughter; punishment was assessed by the jury at twenty years in prison and a fine of $10,000.00.

Appeal was taken to the Corpus Christi Court of Appeals. Appellant asserted six grounds of error, all of which were overruled by the Court of Appeals. Sanchez v. State, 622 S.W.2d 491 (Tex.App.--Corpus Christi 1981). Appellant petitioned to this Court for discretionary review concerning his third ground of error in which he asserted that the trial court erred in allowing the State's attorney to question appellant about his silence while in custody. The Court of Appeals had concluded that the complaint was not properly before them for review because no objection was made to the prosecutor's question. We granted appellant's petition, examined the record and concluded that an objection to the complained-of question was in fact made; we then remanded the case to the Court of Appeals for reconsideration of appellant's third ground of error. Sanchez v. State, 628 S.W.2d 780 (Tex.Cr.App.1982). On remand, the Court of Appeals again overruled appellant's third ground of error and affirmed the judgment of the trial court, Sanchez v. State, 655 S.W.2d 214 (Tex.App.1982) in a published opinion. Appellant again sought discretionary review in this Court, which we granted on the issue of whether the trial court erred in permitting the prosecutor to question appellant about appellant's post-arrest silence.

The facts regarding the questioning are as follow. Appellant, while testifying on direct examination in his own behalf, admitted stabbing the victim when it appeared to appellant that the victim was reaching for a weapon. On cross-examination, and after timely objection, the prosecutor was permitted to ask appellant whether, after his arrest and while in custody, he had told the arresting officer that the victim was reaching for a knife or gun. Appellant responded that he had not discussed the case with the officer. The record does not indicate that appellant had received Miranda 1 warnings during the time in which he remained silent after his arrest.

Before the Court of Appeals, appellant argued that the trial court erred in allowing the prosecutor to question appellant concerning his post-arrest silence, citing the United States Supreme Court holding in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). 2 The Court of Appeals rejected this contention, finding that Doyle did not apply: "Without a showing that appellant had received Miranda warnings at the time inquired about by the prosecutor we are unable to apply the holding in Doyle v. Ohio." The Court of Appeals added that, based upon Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), 3 no violation of due process was shown.

As a general rule, when a defendant voluntarily takes the stand before the jury, he is subject to the same rules as any other witness in that he may be impeached, contradicted and cross-examined as to new matters. Williams v. State, 607 S.W.2d 577, 578 (Tex.Cr.App.1980); Ayers v. State, 606 S.W.2d 936, 939 (Tex.Cr.App.1980). Where there are overriding constitutional or statutory prohibitions, however, the defendant may not be treated as just another witness. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977); Sensabaugh v. State, 426 S.W.2d 224 (Tex.Cr.App.1968).

The United States Supreme Court presented an example of federal constitutional prohibitions in Doyle. The Court held that a defendant could not be impeached concerning his failure to relate exculpatory matters to officers after he had been arrested and after he had been advised of his Miranda warnings. The Court based its decision upon two factors. First, since the required Miranda warnings are a prophylactic means of safeguarding an arrestee's Fifth Amendment rights, silence in the wake of these warnings may be nothing more than the arrestee's exercise of these rights. Second, inherent in the Miranda warnings is an implicit assurance that an arrestee's silence will not be used against him in violation of due process. The Court stated:

"[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial."

Doyle, supra, 426 U.S. at 618, 96 S.Ct. at 2245. Thus, impeachment of an arrestee by the use of post-arrest, post-Miranda silence violates the arrestee's privilege against self-incrimination and his right to due process under the federal constitution.

The Court's holding in Doyle was modified in Fletcher, cited as authority by the Corpus Christi Court of Appeals. In Fletcher the prosecutor cross-examined the defendant as to why the defendant had, when arrested, failed to advance his exculpatory explanation to the arresting officers. The record, however, failed to establish that the arresting officers had given the defendant his Miranda rights, just as in the instant case. The Supreme Court held that:

"In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to post-arrest [pre-Miranda ] silence when a defendant chooses to take the stand. A State is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest [pre-Miranda ] silence may be deemed to impeach a criminal defendant's own testimony."

Fletcher, supra, 102 S.Ct. at 1312. The Court apparently applied only the second Doyle factor, found that impeachment by the use of post-arrest, pre-Miranda silence did not violate federal due process, and left the decision as to what extent such impeachment is proper under state law to the States.

We are now called upon to resolve the question left for state determination by the Supreme Court: to what extent may a defendant's post-arrest, pre-Miranda silence be used to impeach the defendant with regard to exculpatory matters he or she testifies to at trial.

An examination of caselaw provides a ready answer to the question left to us by the United States Supreme Court. Based upon at least two rationales, a defendant's post-arrest silence may not be used against him at trial. First, such use would violate the accused's right to be free from compelled self-incrimination under Art. I, § 10, Texas Constitution. Redding v. State, 149 Tex.Cr.R. 576, 197 S.W.2d 357 (Tex.Cr.App.1946); Weatherred v. State, 129 Tex.Cr.R. 514, 89 S.W.2d 212 (Tex.Cr.App.1935); Johnson v. State, 100 Tex.Cr.R. 215, 272 S.W. 783 (Tex.Cr.App.1925); Skirlock v. State, 100 Tex.Cr.R. 178, 272 S.W. 782 (Tex.Cr.App.1925). Second, rules relating to impeachment prohibit the use of such evidence since post-arrest silence is not probative as prior inconsistent conduct. Moree v. State, 147 Tex.Cr.R. 564, 183 S.W.2d 166 (Tex.Cr.App.1944); Thompson v. State, 88 Tex.Cr.R. 29, 224 S.W. 892 (Tex.Cr.App.1920); Gardner v. State, 34 S.W. 945 (Tex.Cr.App.1896). We shall separately address both rationales underlying the rule. 4

Prior to the United States Supreme Court decision in Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), where the Fifth Amendment to the federal constitution was made applicable to the state, Art. 1, § 10 of the Texas Constitution was used to support holdings prohibiting the use of post-arrest silence against an accused. 5 That provision provides, in pertinent part, that "an accused has the right to be free from compelled self-incrimination." Four cases are particularly illustrative. First, in Skirlock, supra, the defendant was convicted of burglary. The district attorney made the following comment during argument to the jury:

"Gentlemen of the jury, if you had been arrested, charged with burglarizing the home of J.B. Jones, as was the defendant, wouldn't you have explained to the officers that you had nothing to do with it, and not sit silent as did the defendant when arrested?"

In holding that the argument was improper, we stated the following:

"Under our law the defendant, when arrested, has the unqualified right to choose either of two courses, he may talk under the penalty of having what he says under some conditions used against him; on the other hand, he may stand mute with the full assurance that his silence cannot be used in evidence against him. According to the argument objected to, appellant chose to remain silent, and having made this choice, it was manifestly wrong for counsel to use this silence as a circumstance of guilt." Id., 272 S.W. at 783. 6

Although the accused's right to remain silent under the Texas Constitution is not mentioned, language such as "unqualified right" and "silence cannot be used in evidence against him", implicitly invokes constitutional precepts.

Second, in Johnson, supra, the defendant was convicted of murder. An eyewitness to the killing testified that the defendant was handling a gun which accidently discharged, killing the deceased. The State sought to contradict this testimony by evidence of the defendant's failure to attend...

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