Sanchez v. State

707 S.W.2d 575, 1986 Tex. Crim. App. LEXIS 1219

• Court: Court of Criminal Appeals of Texas
• Decided: March 19, 1986
• Docket: 911-82
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

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 Miranda¹ 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:

“[Wjhile ⅛ ⅛ 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-M-randa ] 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, pr e-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 the funeral or to explain the killing. We stated:

“We have here a clear case of where silence was the sole substance of [the defendant’s] sinning, and under the provisions of our Bill of Rights, which provides that a party charged with a crime shall not be forced to give evidence against himself, we hold that the mere silence of a party under the circumstances above detailed in this case, cannot be used against him, and its admission in evidence is reversible error.” Id., 272 S.W. at 784.

Third, in Redding, supra, the defendant was charged with possessing intoxicating liquor for purposes of sale in a dry area. After the defendant testified at trial that he had obtained the whiskey for medicinal purposes, the State was allowed on cross-examination to show that he did not advance that explanation to the officers at the time of his arrest. We stated: “The accused has a right to keep silent when arrested, and the fact of such silence may not be shown by the State, either in testimony or in argument as a guilty circumstance.” Id., 197 S.W.2d at 357, citing Weatherred, supra.

Fourth, in Boggess v. State, 158 Tex.Cr.R. 466, 257 S.W.2d 111 (1953), the defendant was charged with driving while intoxicated.

The defendant testified that he had experienced a diabetic black-out at the time the officers observed his erratic driving. On cross-examination, the defendant was required to testify that, at the time of arrest, he did not inform the officers of the blackout. We stated that “the rule is well settled that, after arrest, the State cannot avail itself of the silence of the accused as evidence of guilt or as destructive of the explanation of his conduct.” Id., at 111, citing Redding, supra.

As indicated by the preceding four cases, use of a defendant’s post-arrest silence against him at trial has been prohibited on purely state constitutional grounds. Moreover, the use of such evidence was prohibited without reference to whether the defendant had been advised of his right to remain silent. In the case at bar, the State urges us to restrict application of this prohibition according to the Doyle/Fletcher analysis: only where the record affirmatively shows that the defendant was advised of his right to remain silent will post-arrest silence be considered impermissible evidence for impeachment purposes. We decline to so restrict the present rule.

Although the State’s position seemingly passes federal constitutional muster, the State’s position does not comport with the Texas privilege against self-incrimination. In Doyle and Fletcher, the United States Supreme Court held that impeachment through the use of post-arrest, pre-M-randa silence did not violate due process and implicitly did not violate the Fifth Amendment to the federal constitution as well. In the instant case, the State maintains that, according to Fletcher, the accused’s right to remain silent (and as-sumedly the right not to have that silence used against him) arises at the moment the accused is advised of his rights. We find this to be an inadequate formulation of the privilege against self-incrimination under our law.

An accused’s right to be free from compelled self-incrimination under the Texas Constitution arises at the moment an arrest is effectuated. The court in Skir-lock, supra, referred to the “unqualified right” to remain silent at the time of arrest. Id., 272 S.W. at 783. The Redding court stated that the right to remain silent arises when the defendant is arrested. Id., 197 S.W.2d at 357. Under the decisions of this Court, once the State has restrained the liberty of the defendant to the degree that an arrest has occurred, privilege attaches to its fullest extent. Conversely, the right to remain silent does not arise when arresting officers deign to verbalize that right, but rather at the very moment the arrest is accomplished. Since the defendant’s right against self-incrimination arises when he is arrested, post-arrest silence is presumed an exercise of that right. The State may not, therefore, violate the defendant's right against self-incrimination by the use of post-arrest silence. Accordingly, we hold that pursuant to Art. I, § 10 of the Texas Constitution, when the defendant is arrested, he has the right to remain silent and the right not to have that silence used against him, even for impeachment purposes, regardless of when he is later advised of those rights.

We have had previous occasion to compare the Texas and federal constitutional provisions vis-a-vis the privilege against self-incrimination. In Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1969), Presiding Judge Onion, writing for the Court on motion for rehearing, stated that the Texas constitutional privilege against self-incrimination was comparable in scope to the Fifth Amendment to the federal constitution. Judge Onion, however, in noting the difficulty in determining the exact scope of the Texas privilege, stated:

“Of course, the history of the privilege does not finally settle its scope or policies and the strength of these underlying policies will largely determine whether future construction will be restrictive or expansive.”

Olson, supra at 762. See also Bell v. State, 582 S.W.2d 800 (Tex.Cr.App.1979); Hitt v. State, 548 S.W.2d 732 (Tex.Cr.App. 1977); Clinard v. State, 548 S.W.2d 716 (Tex.Cr.App.1977); and Dudley v. State, 548 S.W.2d 706 (Tex.Cr.App.1977).

The Olson case and its progeny indicate that in some instances the Texas and federal privileges against self-incrimination are co-extensive. As stated in Olson, supra 484 S.W.2d at 762: “As to the outer reaches of ‘due process’ or ‘self-incrimination,’ we give great weight to the reasonings and holdings of the United States Supreme Court. Nevertheless, as to the true scope of the Texas Constitution, we must ultimately follow our own lights.”

With regard to the use of post-arrest, pre-Miranda silence against the accused, however, we cannot equate the two privileges and yet accord the accused his rights as already set down by prior state caselaw. To do so would require us to overrule a long line of cases decided upon state constitutional and evidentiary ⁷ grounds.

We reiterate the need, however, for a dynamic approach to defining the limits of our state privilege as observed by Presiding Judge Onion in Olson, supra. Each issue must be decided according to the policies and considerations germane at the time. Accordingly, our holding which gives a broader construction to the state privilege than that given by the United States Supreme Court to the federal privilege is restricted to the issue now before us.

Even if we construed the Texas constitutional privilege against self-incrimination to be equal to that afforded by the federal constitution, impeachment through the use of post-arrest silence remains improper according to Texas evidence law. When the State seeks to impugn the explanation of the defendant offered at trial by showing that the defendant failed to advance his position at the time of the arrest, the State is essentially impeaching the defendant through the use of prior inconsistent conduct. The general rule concerning the use of silence as prior inconsistent conduct was set forth in Franklin v. State, 606 S.W.2d 818 (Tex.Cr.App.1979):

“[I]t is a general rule of evidence that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination.”

Id., at 825, citing 3A Wigmore, Evidence, § 1042 (Chadbourn rev. 1970). See also Wharton’s Criminal Evidence, Impeachment of Witnesses § 470, Vol. II, 13th ed., Torcia, 1972. Silence may, therefore, be used as evidence of prior inconsistent conduct only if two requirements are met: the person must have been expected to speak out under the circumstances, and the fact that he or she did not speak out must actually be inconsistent with a later position. See also Williams v. State, 607 S.W.2d 577 (Tex.Cr.App.1980).

There is authority for the contention that a defendant, once placed under arrest, is not expected to speak out. In Meyers, supra, the defendant was charged with unlawfully manufacturing liquor. At trial, the defendant testified that he had seen three men near the stills involved. On cross-examination, the State was permitted to ask the defendant why, at the time of arrest, he had not mentioned the three men to the officers. We held that proof of silence at the time of arrest was prohibited since the defendant was not called upon to speak out while under arrest, and proof of his failure to do so should have been rejected.

In Moree, supra, we indicated that an arrestee is under no burden of replying to statements made in his presence which call for a reply. Moreover, merely having the opportunity to say something does not constitute a circumstance in which one would he expected to speak out. Franklin, supra 606 S.W.2d at 848.

Given that an arrestee is not expected to speak out while under arrest, the fact that he does not do so would not be used against him as evidence of prior inconsistent conduct. Hence, evidence of post-arrest silence fails to satisfy the first requirement of impeachment by prior inconsistent conduct.

Even if we were to assume, and we do not, that a person is expected to speak out after arrest concerning exculpatory matters, the second requirement of prior inconsistent conduct is not satisfied. As previously discussed, in order for impeachment with prior inconsistent conduct to be permissible, the prior conduct must be inconsistent with some later position taken at trial. The United States Supreme Court acknowledged this requirement under the Federal Rules of Evidence in United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), where the court stated:

“If the government fails to establish a threshold inconsistency between silence ... and later exculpatory testimony at trial, proof of silence lacks any significant probative value and must therefore be excluded.” 422 U.S. at 176, 95 S.Ct. at 2136.

Given this second requirement, it is clear that silence following arrest is, at best, ambiguous. In Thompson, supra, the Court stated:

“It will be noticed that this [evidence of silence following arrest] was not the offered testimony of a statement that appellant had made, but it was proving the fact that he made no statement, especially the statement with reference as to how the shooting occurred. We are of the opinion that the court was in error in requiring appellant to answer the question. He was asked nothing, and said nothing about the matter to the sheriff. It was simply a question of silence. It is therefore we think unnecessary to discuss what might have been the attitude had he made a confession while under arrest and unwarned. That involves a different question. Here we have the simple question presented that appellant may be impeached by failing to make a statement, and in keeping silent at the time of his arrest and while under arrest. We do not think this is permissible.”

Id. 224 S.W. at 893. Although the Thompson case referred to Ripley v. State, 58 Tex.Cr.R. 489, 126 S.W. 586 (1910), which involved the confession statute, the Ripley case was merely exemplary and was not urged as authority. The decision in Thompson may more clearly be associated with impeachment concepts, rather than confession law, since the holding focused on the ambiguity attendant to post-arrest silence. Moreover, the United States Supreme Court acknowledged the “insoluble ambiguity” of post-arrest silence in both the Doyle and Fletcher decisions. See Fletcher, supra, 102 S.Ct. at 1311.

Given the inherent ambiguity of post-arrest silence, such silence cannot be considered inconsistent with defensive matters later raised at trial. Absent a showing of actual inconsistency, post-arrest silence is not probative as evidence of prior inconsistent conduct;⁸ therefore, impeachment through the use of such evidence is improper.⁹

Accordingly, we hold that a defendant may not be impeached through the use of post-arrest, pre-Miranda silence since such impeachment violates the defendant’s right to be free from compelled self-incrimination, and also since such impeachment is improper from an evidentiary standpoint. We further agree with Judge Clinton’s concurring opinion and incorporate its reasoning herein. We decline to adopt the federal standards set forth in Doyle and Fletcher, supra. The trial court in the instant case, therefore, erred in permitting the prosecutor to cross-examine appellant regarding his post-arrest silence, since the State was thereby permitted to violate appellant’s rights against self-incrimination.

The judgments of the Court of Appeals and the trial court are therefore reversed and the cause is remanded to the trial court for action not inconsistent with this opinion.

ONION, P.J., concurs in the result.

1 .Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); hereafter cited as Miranda.

2 . Hereafter cited as Doyle.

3 , Hereafter cited as Fletcher.

4 . A third line of cases supported the rule prohibiting the use of post-arrest silence against the accused by reference to statutory pre-cursors to the presently worded Art. 38.22, V.A.C.C.P. See Sharp v. State, 153 Tex.Cr.R. 96, 217 S.W.2d 1017 (1949); Myers v. State, 96 Tex.Cr.R. 546, 258 S.W. 821 (1924); Denton v. State, 42 Tex.Cr.R. 427, 60 S.W. 670 (1901); Gardner v. State, 34 S.W. 945 (Tex.Cr.App.1896); Fulcher v. State, 13 S.W. 370, 28 Tex.App. 465 (1890); Nolen v. State, 14 Tex.App. 474 (Tex.Cr.App.1883). Separate analysis under this line of cases is unnecessary.

5 . The outer limitations of the Fourteenth Amendment to the United States Constitution were already applicable with regard to due process claims. See Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957); Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952).

6 . Emphasis is added by the author of this opinion unless otherwise indicated.

7 . See discussion, infra.

8 . As previously discussed, the federal constitution permits impeachment with post-arrest, pre-Miranda silence, but prohibits impeachment with post-arrest, post -Miranda silence. The inherent ambiguity of post-arrest, post-Miranda silence was one reason supporting the distinction. We see no compelling reason to hold that an arrestee’s silence is rendered any less ambiguous, so as to permit impeachment use of such silence, simply because the arrestee was advised of his right to be silent. Conversely, there is little in the act of advising an arrestee of his right to remain silent that would render that arrestee’s silence any more clear.

9 . The practical effect of any holding to the contrary would serve to penalize knowledgeable defendants who are familiar with the right to remain silent. The presumption in Doyle that silence is an exercise of the right to remain silent should not be applied only to the advantage of persons uneducated in legal matters and to the disadvantage of those with what surely must be, by now, common knowledge that an arrestee has the right to remain silent.