Waldo v. State

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation746 S.W.2d 750
Docket NumberNo. 448-86,448-86
PartiesWayne Dotson WALDO, Appellant, v. The STATE of Texas, Appellee.
Decision Date10 February 1988

Mark Stevens, San Antonio, for appellant.

Sam D. Millsap, Jr., Former Dist. Atty. and Fred G. Rodriguez, Dist. Atty., and Raymond J. Hardy, Jr. and Margaret M. Embry, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Appellant was convicted of the offense of murder and his punishment assessed by the jury at 99 years confinement in the Texas Department of Corrections. On his appeal to the San Antonio Court of Appeals appellant complained of an allusion to his postarrest, postMiranda silence made by a police investigator during the State's case in chief. The court of appeals ruled that the trial court's instruction to the jury to disregard the investigator's remark "cured any possible error." Waldo v. State, 705 S.W.2d 381, 384 (Tex.App.--San Antonio 1986). One justice dissented. We granted appellant's petition for discretionary review in order to determine the efficacy of an instruction to disregard comment on an accused's decision to remain silent after he has been placed under arrest and read hisMiranda rights. Tex.R.App.Pro., Rule 200(c)(2) and (5).

I.

A hearing was held on appellant's motion to suppress during presentation of the State's case in chief in which appellant attempted successfully to exclude certain items of evidence confiscated from the motel room where appellant and a companion, Bonny Ford, had been arrested. At the conclusion of the hearing, upon defense counsel's express invocation of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the trial judge cautioned two police witnesses not to "go into" the fact that once he had been arrested and given his "warnings," appellant "refused to make a statement." Immediately following the hearing one of those witnesses, Detective Robert Tart, took the stand. Tart testified that in the course of his investigation on the night of the murder he spoke to appellant and Ford at the door of their motel room and requested that they come down to the police station to make witness statements. After Ford expressed a desire to change clothes before leaving, Tart and another officer sought permission to step into the room, which was permitted. There they saw a bloody pair of jeans on the floor. Since the deceased, Yong Choi, the proprietress of the motel, had been bludgeoned to death with a hammer shortly before, the detectives decided to arrest appellant and Ford. At this point in the testimony the following occurred:

"Q. At which point what did you do?

A. By this time, Bonny had come out of the restroom, we sat her down on the bed next to [appellant], Detective Thomas removes the rights card, reads them their rights, asks them if they have any statements to make, which there was no response." 1

Counsel for appellant instantly objected, pointing out this answer was in "[d]irect violation of the Court's order." The objection was sustained and, upon appellant's request, the trial court instructed the jury "to disregard the last comment of the witness." Motion for mistrial was denied.

Noting that the "unresponsive portion" of Tart's answer above was "admittedly prejudicial[,]" the court of appeals nevertheless followed "the general rule" that "[w]here prejudicial information is inadvertently placed before a jury, ... an instruction by the trial court to the jury to disregard such answer will be sufficient to cure any unresponsive answer. Williams v. State, 643 S.W.2d 136, 138 (Tex.Crim.App.1982)." 705 S.W.2d at 384. Appellant now contends that as a rule Doyle error cannot be cured by instruction to disregard, and that in any event it was not cured in the context of this prosecution. We do not agree with either contention. 2

II.

It has long been the general rule and "well settled since the early case of Miller v. State, 79 Tex.Cr.R. 9, 185 S.W. 29 [ (1916) ], that error in admitting improper evidence may be generally corrected by a withdrawal and an instruction to disregard it except in extreme cases where it appears that the evidence is clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds." Harris v. State, 375 S.W.2d 310 (Tex.Cr.App.1964). 3 In Gardner v. State, 730 S.W.2d 675, 696 (Tex.Cr.App.1987), we opined:

"In the vast majority of cases in which argument is made or testimony comes in, deliberately or inadvertently, which has no relevance to any material issue in the case and carries with it some definite potential for prejudice to the accused, this Court has relied upon what amounts to an appellate presumption that an instruction to disregard the evidence will be obeyed by the jury. See 1 R. Ray, Texas Practice, Law of Evidence, § 29 (3rd ed. 1980). Thompson v. State, 612 S.W.2d 925 (Tex.Cr.App.1981). In essence this court puts its faith in the jury's ability, upon instruction, consciously to disregard the potential for prejudice, and then consciously to discount the prejudice, if any, in its deliberations."

We also noted that "[w]hether a given case fits the exception or the rule will depend, of course, upon its particular facts." Id.

Appellant likens the error in this cause to a direct comment on failure of the accused to testify, a variety of error for which this Court has essentially reversed the presumption and generally found instructions to disregard inefficacious. See Dickinson v. State, 685 S.W.2d 320 (Tex.Cr.App.1984); Owen v. State, 656 S.W.2d 458 (Tex.Cr.App.1983). Inasmuch as he thereby suggests we hold a witness' comment on the accused's postMiranda silence to be incurable error regardless of the particular facts of the case, however, we reject his comparison for two reasons. First, we resist any inclination to expand the class of errors for which an instruction will be deemed ineffective in the general run of cases. Indeed, the reversed presumption that an instruction generally will not cure comment on failure of the accused to testify primarily stems from the mandatory language of Article 38.08, V.A.C.C.P., and has been eroded to the point that it applies only to the most blatant examples. Otherwise, the Court has tended to find the instruction to have force. See Gardner v. State, supra, at 700, n. 13. Even where we have found such comment beyond cure, the Court has nevertheless held it can constitute harmless error in context of the particular case. Montoya v. State, 744 S.W.2d 15 (Tex.Cr.App.,1987) (Opinion on appellant's motion for rehearing). 4 Nor, secondly, do we find the potential for prejudice from a comment on postMiranda silence to be as great as that which necessarily derives from a prosecutor's deliberate comment on a defendant's failure to testify. The latter comment will seriously taint any case in which the accused invoked his constitutional right to refuse to testify, since invariably it endorses the devastating and practically indelible inference that he had no exculpatory testimony to present in contradiction of the State's evidence. By comparison, at least where, as shall be seen in the instant case, comment on postMiranda silence was not utilized in any overt fashion to impeach appellant's testimony or rebut his defense, we cannot say that the prejudicial impact is so irrevocable that jurors could not obey an instruction to ignore it in their deliberations. In United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), decided one year before Doyle, supra, the Supreme Court held in the exercise of its supervisory power over the federal courts that postMiranda silence should be excluded as more prejudicial than probative. Along the way the Court noted that "failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference" detrimental to the accused. 422 U.S. at 177, 95 S.Ct. at 2137, 45 L.Ed.2d at 105. In Doyle, supra, the Court hearkened back to Hale, supra, in describing such silence as "insolubly ambiguous." 426 U.S. 617, 96 S.Ct. 2244, 49 L.Ed.2d 97. That jurors could readily choose to give an accused's postMiranda silence no detrimental significance whatsoever, as evincing nothing more than an innocent reliance on the right itself, indicates that its potential for prejudice, though sufficiently outweighing its probative value to render it inadmissible as a matter of federal evidentiary law, is not so great as necessarily to defy curability in every case. That it is "[m]oreover ... fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used" against him, 426 U.S. at 618, 96 S.Ct. at 2245, 49 L.Ed.2d at 98, does not in any respect reduce the amenability of such error to curative instruction.

We therefore refuse to embrace a rule that in general Doyle error will not be cured by an instruction to disregard. Instead we will honor the presumption that the instruction was efficacious unless consideration of the facts of the particular case "suggest[s] the impossibility of withdrawing the impression produced on the minds of the jury[.]" Hatcher v. State, 43 Tex.Cr.R. 237, 65 S.W. 97, 98 (1901).

III.

Appellant invites us to consider the following factors in determining the efficacy of curative instructions:

1. The nature of the error.

2. The persistence of the prosecution in committing it.

3. The flagrancy of the violation.

4. The particular instruction given.

5. The weight of incriminating evidence.

6. The harm to accused as measured by severity of the sentence.

Without expressly adopting appellant's factors as exhaustive or definitive, we observe that consideration of same does not militate in his favor here. Having already...

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