White, Ex Parte Wendell Keith

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,757 & 74,758 EX PARTE WENDELL KEITH WHITE

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM HARRIS COUNTY

Keller, P.J., filed a concurring opinion in which COCHRAN, J., joined.

CONCURRING OPINION

We held in Sanchez that the Texas Constitution bars the use against a defendant of his post-arrest, pre-Miranda silence. ⁽¹⁾ I believe that this case is not controlled by Sanchez because applicant was not silent after he was arrested; he told the officers that he had been home all evening. His strategy at trial was to admit that he had been at the bar but persuade jurors that he did not know he had run over the victims. His testimony was to that effect. It was not counsel's questions, but applicant's trial strategy and his testimony that opened the door to cross-examination about what he did and did not say after his arrest. ⁽²⁾

The habeas court found that trial counsel's most significant error was the invitation to comment on applicant's post-arrest silence. The Court assumes without deciding that this conduct was deficient, but holds that applicant fails to show harm. I would, instead, hold that the conduct was not deficient.

With these comments, I join the Court's opinion.

KELLER, Presiding Judge

Date filed: September 29, 2004

Publish

1. Sanchez v. State, 707 S.W.2d 575 (Tex. Crim. App. 1986).

2. See, e.g., Anderson v. Charles, 447 U.S. 404, 409 (1980); Szmalec v. State, 927 S.W.2d 213, 217 (Tex. App. - Houston [14^th Dist.] 1996, pet. ref'd.); Bell v. State, 867 S.W.2d 958, 962 (Tex. App. - Waco [14^th Dist.] 1994, no pet.)

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