Raul Aguirre v. State ( 2007 )

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  Opinion issued June 21, 2007



In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00417-CR

RAUL AGUIRRE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1036528

MEMORANDUM OPINION

A jury convicted appellant, Raul Aguirre, of aggravated robbery,⁽¹⁾ and the trial court assessed punishment at eighteen years' imprisonment. In two issues, appellant argues that his rights under the United States and Texas Constitutions (1) to remain silent and not give evidence against himself and (2) to the effective assistance of counsel were violated.

We affirm.

Facts

Appellant was charged with robbing Timothy Smith on August 7, 2005 at a flea market in the Spring Branch area on the northwest side of Houston. At trial, Smith testified that he was returning to his vehicle in the flea market parking lot when appellant approached him. Appellant was holding a pistol in one hand and demanded that Smith hand over the jewelry he was wearing. After Smith handed over his watch and necklace, appellant jumped into the passenger side of a waiting vehicle and sped out of the flea market parking lot. Unwilling to part with his possessions, Smith got into his truck and pursued appellant into the surrounding residential area. At one point, both appellant and the driver of appellant's car got out of the car and fired at Smith, leaving bullet holes in Smith's truck. When appellant's vehicle eventually became disabled, he and his accomplice abandoned it and ran into a nearby apartment complex. Soon thereafter, the police found appellant hiding in a hedge of bushes outside a residence near the apartment complex, called him out at gunpoint, and took him into custody. Police later found appellant's gun in a dryer at the apartment complex's laundry facility and were given his shirt by area residents who had found it after appellant's arrest. Police also searched Smith and his vehicle, but found nothing suspicious.

Appellant presented a different version of events. At trial, appellant testified that he met Smith at the flea market and sold him some "turkey dope," a simulated controlled substance. Appellant claims that Smith had chased him because Smith discovered that appellant had sold him fake drugs and that Smith had fired a handgun at him. Appellant claims he fired at Smith in self-defense.

During its cross-examination of appellant, the State questioned him on various inconsistencies between his testimony and that of other witnesses. The following exchange occurred while the State was questioning appellant on the circumstances surrounding his arrest:

[STATE]: You told the jury you walked out of somebody's driveway and there the police were and they arrested you. Isn't that what you just told them?

[APPELLANT]: Yes.

[STATE]: So, Officer Hamilton must be lying, then, when he says he saw you under the bushes and called you out at gunpoint? Is he lying or is he telling the truth?

[APPELLANT]: He's pretty much telling the truth.

[STATE]: But you would agree with me those two versions are very different?

[APPELLANT]: Well, he did call me out; but I'm walking out as he's calling me out.

[STATE]: Mr. Aguirre, this is the first time we're ever hearing this version of events, isn't it?

[APPELLANT]: I don't know. I don't know what you've heard.

[STATE]: You've not told another officer -

[TRIAL COUNSEL]: Objection, Your Honor. This is post-contention [sic] silence.

[THE COURT]: Overruled.

[STATE]: You've not told any other officers at any point in time during this entire process, didn't flag down an officer along the way, try and find an officer and tell them what was happening, did you?

[APPELLANT]: That he was chasing us?

[STATE]: You didn't -

[APPELLANT]: I mean, it was obvious.

[STATE]: You haven't told anybody this story before, have you?

[APPELLANT]: No.

On redirect examination of appellant, appellant's trial counsel asked appellant about the period of time following his arrest. Appellant testified that the police took him to a witness room so that he could tell his side of the story and read him his Miranda rights.⁽²⁾ Appellant did not tell his side of the story at that time because he wanted to assert his Fifth Amendment right to remain silent. The prosecutor then conducted the following recross-examination of appellant:

[STATE]: Officer Hamilton arrested you, correct?

[APPELLANT]: Yes.

[STATE]: You didn't tell him this, did you?

[APPELLANT]: No.

[STATE]: Officer Murphy transported you to the county jail, didn't he?

[APPELLANT]: Yes.

[STATE]: You didn't tell him this, did you?

[APPELLANT]: No.

[STATE]: Officer [P.] Reece with the Robbery Division of the Houston Police Department gave you an opportunity to tell him anything that you wanted to about what had happened out there that day, didn't he?

[APPELLANT]: Yes.

[STATE]: And you didn't tell him this, did you?

[APPELLANT]: No.

The State also questioned Officer Reese regarding appellant's silence. Officer Reese testified that he only questioned appellant after the arrest was made. In regard to appellant's testimony, the following exchange took place:[STATE]: Now, Officer Reece, did the defendant ever tell you during the course of this discussion with him that he tried to sell Mr. Smith some [of] what we commonly call turkey dope?

[OFFICER]: No, he did not.

[STATE]: Did he tell you that he had brought a cocaine cutting agent from the flea market and tried to pass that off to Mr. Smith as cocaine?

[OFFICER]: No.

[STATE]: Did he ever tell you that Mr. Smith had offered up his jewelry as payment for this turkey dope?

[OFFICER]: No, he did not.

[STATE]: Did he ever tell you that Mr. Smith was the aggressor in this vehicle chase that took place after what happened at the flea market?

[OFFICER]: No.

[STATE]: Did he ever tell you that Mr. Smith had a gun?

[OFFICER]: No, he did not.

[STATE]: And did he ever tell you where he got the .45 Ruger semiautomatic pistol that was recovered in this case?

[OFFICER]: No.

[STATE]: Did he ever tell you that he surrendered to the police voluntarily when they arrested him?

[OFFICER]: No.

[STATE]: In fact, did he tell you anything about his side of the story about what happened out there at Long Point and the surrounding areas?

[OFFICER]: No, he did not.

Appellant's trial counsel cross-examined Officer Reece and established that Officer Reece knew that appellant had been given his Miranda warnings and that appellant had a right to choose to testify or not. The State then established on redirect that Officer Reece might have been able to investigate and possibly prove appellant's claims had appellant given him the information during this interview.

During the State's closing argument, the following comments were made:

And how else do we know that what this defendant has told you is the absolute untruth? Folks, he had an opportunity to tell how many people this story before today? When Officer Hamilton pulled him out of those bushes. Not walking out from behind them or walking out the driveway, whichever version he happened to tell depending on the question; but when they drew him out of there at gunpoint, he didn't tell Officer Hamilton. When Officer Murphy had him in the patrol car, taking him down to 61 Reisner, not a word. And when Officer Reece, who is a detective with the Robbery Division of the Houston Police Department gives him an opportunity to tell him anything he wants, I'm here to listen to whatever you want to tell me.

Absolutely, folks, he has rights just like every criminal defendant does. And he has the right to invoke those rights; but doesn't it make sense if he is truly the victim in this case, he's going to be shouting it from the mountaintops the first opportunity. He's going to give Officer Reece an opportunity to follow up on it, to check it out, to go out there, see if anybody saw anything consistent with this drug deal gone bad. . . .

He doesn't ever do it. Y'all were hearing it right along with me. That, in and of itself, should tell you all you need to know about the credibility of this defendant both now and then.

Right to Remain Silent

In his first issue, appellant argues that his right to remain silent and not give evidence against himself under the Fifth Amendment of the United States Constitution and article I, section 10, of the Texas Constitution was violated by the State's improper questioning of several witnesses, including appellant himself, and the State's closing argument.

State Constitutional Arguments

Appellants who claim both state and federal constitutional protection should argue each under separate grounds and provide separate substantive analysis for each ground. Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App. 1993); accord Heitman v. State, 815 S.W.2d 681, 690-91 n.23 (Tex. Crim. App. 1991) (quoting McCambridge v. State, 712 S.W.2d 499, 501-02 n.9 (Tex. Crim. App. 1986)) ("Attorneys, when briefing constitutional questions, should carefully separate federal and state issues into separate grounds and provide substantive analysis or argument on each separate ground.").

Here, appellant states in his first point of error that his right to remain silent and not give evidence against himself was violated under both the United States and Texas Constitutions, but the analysis he provides under this point of error fails to differentiate between these separate constitutional authorities. Accordingly, we will only address appellant's argument under the United States Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993) (refusing to examine state constitutional grounds where appellant failed to analyze, argue, or provide authority to establish that his protection under the Texas Constitution was different from that provided by the United States Constitution); Rauscher v. State, 129 S.W.3d 714, 723-24 (Tex. App.--Houston [1st Dist.] 2004, pet. ref'd) (same).

Federal Constitutional Arguments

The United States Supreme Court has held that the Due Process Clause of the Fourteenth Amendment is violated when a defendant's post-arrest, post-Miranda silence is used by the State to impeach the defendant. Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976); McCreary v. State, 194 S.W.3d 517, 522 (Tex. App.--Houston [1st Dist.] 2006, no pet.). In the absence of Miranda warnings, however, the Supreme Court has held that due process permits cross-examination about post-arrest silence. Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312 (1982).⁽³⁾ Pre-arrest silence is also a constitutionally permissible area of inquiry. Jenkins v. Anderson, 447 U.S. 231, 238-40, 100 S. Ct. 2124, 2129-30 (1980); Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988).

Appellant complains of three instances in which the judge allowed testimony that violated his right to remain silent. The first instance occurred during the State's cross-examination of appellant when the State asked him whether he had ever mentioned his version of events at any point prior to trial. Appellant's trial counsel objected to this line of questioning, but the trial court overruled appellant's objection. The State finished its question by asking, "You've not told any other officers at any point in time during this entire process, didn't flag down an officer along the way, try and find an officer and tell them what was happening, did you?"

The second instance occurred during the State's recross-examination of appellant. The State asked a series of questions that established that appellant had not mentioned his version of events to any officer that he dealt with during the entire process. Appellant's trial counsel did not object to any of these questions.

The third instance occurred during the State's questioning of Officer Reece, the officer in charge of the investigation. The State asked, "Now, Officer Reece, did the defendant ever tell you during the course of this discussion with him that he tried to sell Mr. Smith some [of] what we commonly call turkey dope?" Appellant's trial counsel did not object to this question. The State continued to question Officer Reece along the same lines without objection from appellant's trial counsel.

A timely and reasonably specific objection, followed by an adverse ruling, is required to preserve error--even constitutional error⁽⁴⁾--for appellate review. Tex. R. App. P. 33.1(a); Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). An appellant must object each time inadmissible evidence is offered, except when defense counsel requests a running objection or objects out of the presence of the jury to all testimony on a given subject that he deems objectionable. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Love v. State, 199 S.W.3d 447, 456 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). When a defendant objects to certain evidence being introduced in one instance, but the same evidence is introduced from another source without objection, the defendant is not in a position to complain on appeal. Hughes v. State, 878 S.W.2d 142, 156 (Tex. Crim. App. 1992).

Appellant failed to preserve any error arising from the second and third instances because he did not object at trial. See Tex. R. App. P. 33.1(a)(1)(A); Heidelberg, 144 S.W.3d at 537.⁽⁵⁾ Nor does he argue that the testimony was so prejudicial that any error could not have been cured by an instruction to disregard. See Stanley v. State, 727 S.W.2d 785, 788 (Tex. App.--Houston [1st Dist.] 1987, pet. ref'd) (stating that "[a]bsent an objection, nothing is presented for review unless the error was so prejudicial that it could not have been cured by an instruction to disregard"). Furthermore, the testimony being challenged in all three instances established the same fact--that appellant had not related his version of events to anyone prior to his testimony at trial. Because the second and third instances involved introduction of the same evidence without objection as that admitted in the first instance and appellant's trial counsel did not request a running objection or object out of the presence of the jury,⁽⁶⁾ any potential error made in overruling the objection in the first instance is waived. See Hughes, 878 S.W.2d at 156.

Closing Argument

Appellant also complains that the State's closing argument was improper.

In general, to preserve jury argument error, a contemporaneous objection must be made and an adverse ruling obtained. Tex. R. App. P. 33.1 (stating that to preserve error for review, party must object and trial court must explicitly or implicitly make an adverse ruling or refuse to rule on that objection); Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992). If the trial court sustains the objection, the defendant must then request an instruction to disregard the argument and, if granted, move for a mistrial. Cooks, 844 S.W.2d at 727-28. When a defendant fails to object to a jury argument or fails to pursue an objection to a jury argument to an adverse ruling, he forfeits his right to complain about the jury argument on appeal. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996).

During its closing argument, the State argued to the jury that appellant had had several opportunities to tell his side of the story, but that he never took advantage of those opportunities. Appellant's trial counsel, however, did not object at any point during the State's closing argument. Appellant, therefore, has forfeited his right to complain about the State's jury argument on appeal. See id.; Cooks, 844 S.W.2d at 727-28

We overrule appellant's first issue.

Right to Counsel

In his second issue, appellant argues that his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and article I, section 10, of the Texas Constitution was violated.

"[T]he right to appellate review in this state extends only to complaints made in accordance with our published rules of appellate procedure . . . ." Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). The Texas Rules of Appellate Procedure require that an appellant's brief "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Appellant's sole briefing on this issue was to list it as an issue presented, which states: "The Defendant's right to the effective representation of counsel afforded by the Sixth Amendment of the Constitution of the United States and Article I, Section 10 of the Constitution of the State of Texas was violated by the prosecutor." Appellant makes no citation to the record or to any authority to support this point of error. This issue, therefore, is not properly presented for our review. See Tex. R. App. P. 38.1(h); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000) (overruling points of error because appellant "inadequately briefed these points by neglecting to present argument and authorities as required by Texas Rule of Appellant [sic] Procedure 38.1(h)"); Boler v. State, 177 S.W.3d 366, 373-74 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd) (holding that appellant did not meet burden of showing fundamental error when appellant did not cite authority or make argument as required by Texas Rule of Appellate Procedure 38.1(h)).

We overrule appellant's second issue.

Conclusion

We affirm the judgment of the trial court.

Evelyn V. Keyes

Justice

Panel consists of Chief Justice Radack and Justices Keyes and Higley.

Do not publish. Tex. R. App. P. 47.2(b).
1. §
2. We recognize that the warnings required by article 38.23 of the Texas Code of Criminal Procedure are more expansive than those required by Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966). See Tex. Code. Crim. Proc. Ann. art. 38.22 § 2 (Vernon 2005). At trial, however, both the district attorney and certain witnesses generally referred to these warnings as Miranda warnings, and we will do the same when referring to such testimony.

3.
We note that protection of a defendant's post-arrest silence under article I, section 10 of the Texas Constitution is broader than under the United States Constitution. "Article I, section 10 of the Texas Constitution . . . protects a defendant's post-arrest silence even before [Miranda] warnings have been administered." Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (citing Sanchez v. State, 707 S.W.2d 575, 582 (Tex. Crim. App. 1986)).
4.
Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).
5. Nor does appellant urge the futility of objection or any other reason for his failure to object. See Jackson v. State, 989 S.W.2d 842, 844 (Tex. App.--Texarkana 1999, no pet.) (citing Black v. State, 816 S.W.2d 350, 368 (Tex. Crim. App. 1991) (Campbell, J., concurring)) (explaining "right-not-recognized" exception to contemporaneous objection rule).
6. See
Martinez, 98 S.W.3d at 193; Love, 199 S.W.3d at 456.