Marcus Dewayne McPherson v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-17-00279-CR
NO. 09-17-00280-CR
_________________
MARCUS DEWAYNE MCPHERSON, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. 16-24558, 16-24559
________________________________________________________________________
MEMORANDUM OPINION
A jury convicted Marcus DeWayne McPherson of the offenses of possession
of marijuana in an amount greater than four ounces but less than five pounds and
money laundering. See Tex. Health & Safety Code Ann. § 481.121(a), (b)(3) (West
2017); Tex. Penal Code Ann. § 34.02 (West 2016). The jury assessed punishment of
eighteen months in jail with a fine of $3,000.00 for the possession of marijuana and
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three years in prison with a fine of $3,000.00 for money laundering. McPherson
appeals his convictions, arguing the trial court erred by admitting his interrogatory
answers from a civil forfeiture proceeding as evidence in the guilt-innocence phase
of his criminal trial where he “had otherwise exercised [his] right to remain silent[.]”
We affirm the judgments of the trial court.
Background
On January 19, 2016, Jefferson County Sheriff’s Officer Allen Burleson was
working interdiction on Interstate 10 (I-10). Burleson stopped McPherson for traffic
violations in Jefferson County on I-10 westbound, headed to Houston. Dash camera
video of the stop from Officer Burleson’s vehicle was admitted as evidence. The
video showed that after Officer Burleson approached the vehicle, he told McPherson
why he stopped him. Officer Burleson questioned McPherson about where he had
been and where he was traveling. Officer Burleson explained to the jury that I-10 is
a known drug corridor.
At trial, Officer Burleson testified McPherson was nervous, and he did not
believe McPherson’s stated reasons for traveling. Other suspicious items in the
vehicle included a bottle of air freshener, a Gatorade bottle that appeared to contain
urine, three cell phones, and mail from McPherson’s address in Florida, which
indicated he was not working in Baton Rouge as he claimed. While Burleson
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acknowledged it is not illegal to possess those items by themselves, he explained
they were “indicators to lead to the bigger picture” and felt McPherson may have
been involved in criminal activity. Officer Burleson also confirmed he found
evidence that the vehicle was rented.
Officer Burleson asked to search the vehicle, and McPherson consented.
Approximately twenty minutes into the search, Officer Burleson located vacuum
sealed bundles of money hidden under a cover near the spare tire and bumper.
Burleson continued searching and located a backpack in the same area of the vehicle,
near the money. The backpack contained vacuum sealed bags of high-grade
marijuana. A forensic scientist, employed by Jefferson County Regional Crime Lab,
later testified the substance seized from the vehicle was marijuana that weighed
22.03 ounces, and the trial court admitted his report into evidence.
Officer Burleson testified that after he searched the vehicle, he believed
McPherson came from Florida and was traveling to Houston. Officer Burleson
testified he retrieved $28,380.00 from the vehicle. Officer Burleson confirmed that
if the money was proceeds from criminal activity, and if McPherson knew the money
was in the car, he committed the crime of money laundering by transporting the
money.
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Officer Burleson testified that when they locate money, Department policy
requires the money to be taken to the bank, where the bank counts it and puts it in a
subject to being seized by the County. He explained that in a Chapter 59 seizure
affidavit, the officer provides the reasons the money is believed to have been
involved in criminal activity, such as the illegal sale of narcotics. The affidavit is
then filed with the District Attorney’s office, where it becomes included in a civil
forfeiture proceeding. The State offered McPherson’s answers to interrogatories
from the civil forfeiture proceeding as State’s Exhibit 19 in presenting its evidence
in McPherson’s trial. In a bench conference, the state explained that it wanted
defense counsel to have an opportunity to look at the exhibit before offering it into
evidence. McPherson’s counsel responded he had been furnished with a copy, and
specifically stated, “I don’t believe the proper predicate has been laid for its
admissibility at this time.” This was the only objection made, which the trial court
initially sustained. When trial re-convened the following day, however, the trial
court stated, “Before I do that, you tendered yesterday, and I sustained [defense
counsel’s] objection, No. 19. I’ve reviewed that. I believe I was incorrect. [Defense
counsel], your objection to 19’s overruled; and 19’s admitted as evidence.” The
defense did not make any further objection, and the trial court admitted McPherson’s
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answers to the interrogatories that he filed in the civil forfeiture proceeding into
evidence as State’s Exhibit 19.
Later, the State had the opportunity to examine Officer Burleson when he was
recalled and the prosecution questioned him about McPherson’s interrogatory
answers. The prosecutor specifically asked Burleson about interrogatory 13, which
inquired about the source of the money seized. Burleson read McPherson’s answer,
indicating McPherson’s answer said: “It was Defendant’s money.” There was no
objection to this line of questioning. Only when the State asked Officer Burleson if
McPherson prepared the answer to the interrogatory himself did the defense object
claiming the answer was speculation. The trial judge sustained the objection. The
State went on to question Officer Burleson about the interrogatory answers
pertaining to McPherson’s prior felony convictions. At that point, the defense stated,
“Your Honor, we renew our objection, especially to this question and answer, as
being inadmissible and the proper predicate hasn’t been laid or door opened.” The
trial judge overruled the objection and noted State’s Exhibit 19 was already in
evidence.
Analysis
The State argues that McPherson failed to preserve his complaint for our
review. However, in support of his argument that the trial court erred by admitting
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his interrogatory answers from the civil forfeiture proceeding in the guilt-innocence
phase of his criminal trial, McPherson essentially asserts that his right against self-
incrimination under the Fifth Amendment is a fundamental, category-two right, and
he suggests his objection cannot be waived unless waived knowingly, voluntarily,
and intelligently. 1
Generally, a contemporaneous objection must be made to preserve error for
appeal. See Tex. R. App. P. 33.1(a). The rule, however, is not absolute. In Marin,
the Court of Criminal Appeals “held that the general preservation requirement’s
application turns on the nature of the right allegedly infringed.” Grado v. State, 445
S.W.3d 736, 739 (Tex. Crim. App. 2014); Marin v. State, 851 S.W.2d 275 (Tex.
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McPherson argues that no warnings were given to him in the civil
proceedings with respect to the interrogatory answers on the subject of his right not
to incriminate himself in his answer. However, with the exception of McPherson’s
interrogatory answers, the record in McPherson’s civil forfeiture case is not before
us. We cannot take as true allegations not supported by the record before us in the
appeal. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2014) (citing
Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996). Further, we “cannot
go to the record of another case for the purpose of considering testimony not shown
in the record of the case before [us].” Evans v. State, 622 S.W.2d 866, 868 (Tex.
Crim. App. [Panel Op.] 1981); see also Turner v. State, 733 S.W.2d 218, 223 (Tex.
Crim. App. 1987) (internal citations omitted). The discovery responses contained in
State’s Exhibit 19 indicate McPherson was represented by the same attorney who
represented him in the criminal proceedings, and there were no objections to the
interrogatories in the document that is before us here. Thus, nothing in the record
shows that McPherson ever objected to the discovery requests in the civil forfeiture
proceeding.
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Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262(Tex. Crim. App. 1997). Defendants’ rights may be separated into three categories.
See Proenza v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017) (recognizing
category one, category two, and category three rights outlined in Marin); Grado, 445
S.W.3d at 739; Marin, 851 S.W.2d at 278–80. Absolute rights fall into the first
category and are “widely considered so fundamental to the proper functioning of our
adjudicatory process . . . that they cannot be forfeited . . . by inaction alone.” Marin,
851 S.W.2d at 278 (internal citations omitted). The second category consists of
rights “that are ‘not forfeitable’—they cannot be surrendered by mere inaction, but
are ‘waivable’ if the waiver is affirmatively, plainly, freely, and intelligently made.”
Grado, 445 S.W.3d at 739 (citing Marin, 851 S.W.2d at 279–80). A trial judge has
a duty to implement this second category of rights without any request unless there
is an effective express waiver. Id. (citing Marin, 851 S.W.2d at 279–80). “[T]he third
category of rights are ‘forfeitable’ and must be requested by the litigant.” Id. (citing
Marin, 851 S.W.2d at 279–80). This includes many rights of a criminal defendant,
some which are constitutional, and can be forfeited by inaction. Id. (citing Marin,
851 S.W.2d at 279).
The general error preservation rules apply to many constitutional errors. See
Saldano v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002). The two narrow
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exceptions to the rule that generally requires a timely and specific objection to
preserve error are “rights which are waivable only” and denials of “absolute systemic
requirements.” Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Errors
that fall in these two categories may be raised for the first time on appeal, and
examples of waivable-only rights include the right to assistance of counsel and the
right to a jury trial. Id.; Badall v. State, 216 S.W.3d 865, 867 (Tex. App.—Beaumont
2007, pet. ref’d). Although McPherson argues otherwise, the Fifth Amendment right
against self-incrimination can be forfeited by failing to raise a timed and specific
objection during the defendant’s trial. See Grado, 445 S.W.3d at 741 n.29 (internal
citations omitted); Johnson v. State, 357 S.W.3d 653, 658 n.3 (Tex. Crim. App.
2012). “The Fifth Amendment privilege against self-incrimination under a Marin
analysis is a forfeitable privilege.” Johnson, 357 S.W.3d at 658 n.3 (citing Marin,
851 S.W.2d at 278–79). The Court of Criminal Appeals explained in Johnson, “[t]his
is true because any relinquishment of the privilege need not be expressly made, and
a trial judge has no independent duty to implement a defendant’s Fifth Amendment
privilege.” Id. (citing Minnesota v. Murphy, 465 U.S. 420, 427 (1984); Marin, 851
S.W.2d at 279). The “privilege against compelled self-incrimination is not ordinarily
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self-executing. In all but a few specific situations, a criminal defendant must timely
assert his privilege[.]” 2 Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003).
We conclude McPherson was required to make a specific, timely objection in
the trial court to preserve his right to complain that admitting his interrogatories from
the civil forfeiture case violated his 5th Amendment right to preserve his right to
complain about that subject in his appeal. See Tex. R. App. 33.1(a)(1); see also
Johnson, 357 S.W.3d at 658 n.3; Chapman, 115 S.W.3d at 6.
Conclusion
McPherson’s objections at trial to the admission of State’s Exhibit 19 do not
comport with the complaint he has raised in his appeal. Therefore, nothing regarding
the argument he presents in his brief has been preserved for our review. We affirm
the trial court’s judgments.
AFFIRMED.
________________________________
CHARLES KREGER
Justice
2
One narrow exception to the assertion requirement is the “classic penalty
situation” where a person is threatened with punishment for exercising his Fifth
Amendment rights. Minnesota v. Murphy, 465 U.S. 420, 435 (1984); Chapman v.
State, 115 S.W.3d 1, 6–7 (Tex. Crim. App. 2003). This exception does not apply
here.
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Submitted on October 24, 2018
Opinion Delivered February 27, 2019
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
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