Williams, Marcia AKA Marcia Lasley Dean v. State

NUMBER 13-98-586-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ MARCIA WILLIAMS, A/K/A MARCIA LASLEY DEAN , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 36th District Court of Aransas County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Hinojosa, Yañez, and Rodriguez Opinion by Justice Rodriguez A jury found appellant, Marcia Williams, guilty of unlawful possession of a controlled substance.(1) The court assessed punishment with enhancement(2) at twenty-five years confinement in the Institutional Division of the Texas Department of Criminal Justice. It is undisputed that the police searched a motel room occupied by appellant and found crack cocaine and a small gram scale in appellant's purse. The only issue at trial was whether appellant knew the package in her possession was crack cocaine. By two points of error, appellant contends she was denied due process and effective assistance of trial counsel. We affirm. By her first point of error, appellant asserts she was denied due process and a fair trial when the trial court failed to stop the State from cross-examining her about her refusal to talk to the police after her arrest. Appellant urges that the cross-examination was improper because it implied that her sworn trial testimony was a recent fabrication instead of a lawful invocation of her right to remain silent and not incriminate herself. Appellant further argues that it was improper for the State to call a police witness to establish appellant's post-arrest silence. The State contends this point of error was not preserved for review. It is well established that the State may not use an individual's post-arrest, post-Miranda silence against her. See Doyle v. Ohio, 426 U.S. 610, 619 (1976); Sanchez v. State, 707 S.W.2d 575, 580 (Tex. Crim. App. 1986). However, "[a] defendant's right to remain silent and not have that silence used against him at trial has long been considered a forfeitable trial right." See Miller v. State, 939 S.W.2d 681, 689 (Tex. App.--El Paso 1996, no pet.) (citing Wheatfall v. StateI, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994) (complaint concerning admission of evidence of defendant's post-arrest silence waived in absence of objection); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986) (defendant's failure to object to admission of evidence showing post-arrest silence waived in absence of objection; admission of evidence is not fundamental error); Cisneros v. State, 792 S.W.2d 78, 83 (Tex. Crim. App. 1985) (defendant's complaints concerning use of pre-arrest and post-arrest silence waived in absence of objection)). Therefore, to preserve error concerning the erroneous admission of evidence regarding post-arrest silence, appellant must have timely lodged a specific objection in the trial court. See Tex. R. App. P. 33.1; Tex. R. Evid. 103(a)(1). Our review of the record reveals that defense counsel did not object to the post-arrest silence testimony about which appellant now complains. Accordingly, we hold error, if any, was not preserved for review. Appellant's first point of error is overruled. By her second point of error, appellant asserts she received ineffective assistance of counsel. Appellant identifies six areas of alleged ineffective assistance. She maintains her counsel (1) failed to file proper pre-trial motions, (2) failed to file motions to quash the search warrant and to suppress evidence seized from appellant's purse, (3) failed to argue effectively during opening and closing, (4) failed to conduct an effective cross-examination of the State's witnesses and called a co-defendant who added nothing and was impeached by the State, (5) opened the door to cross-examination of appellant by the prosecution concerning appellant's criminal record, and (6) made ineffective objections, or no objections, to the prosecutor's improper arguments and questions. To prevail on an ineffective assistance claim, appellant has the burden of proving (1) her attorney's representation was below an objective standard of reasonableness, and (2) but for her attorney's errors, the result of the proceeding would have been different, thus prejudicing her trial. See Cardenas v. State, No. 73,107, slip op. at 10, 2000 Tex. Crim. App. LEXIS 45, at *17 (Tex. Crim. App. April 26, 2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984); McFarland v. State, 845 S.W.2d 824, 842-43 (Tex. Crim. App. 1992), cert. denied, 508 U.S. 963 (1993)); Sanders v. State, 963 S.W.2d 184, 190 (Tex. App.--Corpus Christi 1998, pet ref'd.) (citations omitted). To prove prejudice, appellant must demonstrate a reasonable probability that the result of her trial would have been different had counsel not performed deficiently. See Cardenas, slip op. at 10, 2000 Tex. Crim. App. LEXIS at *17. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. See id. We first review appellant's sixth ineffective assistance claim wherein she complains that her counsel failed to object to improper questions asked by the prosecutor. We construe this general claim to include a complaint regarding questions relating to appellant's alleged post-arrest silence. On direct examination, appellant testified she was sitting on the front porch of a motel, the Cedar Lodge Motel, when Cleveland Brundage, an acquaintance, handed her something. Brundage told her to hold it and that he would be back to get it. Appellant testified she did not know what Brundage had given her.(3) Nonetheless, appellant took it and put it in her purse. After appellant related this story, the prosecutor, during cross-examination, questioned her about whether this was the first time she had told anyone about Brundage giving her the cocaine. Appellant answered that she told the police about it the day she was arrested. Appellant's counsel did not object to this line of questioning. The State contends that such questions are not objectionable as propounded because appellant testified she was not silent; she told the officers that Brundage had given her the cocaine. We agree. Appellant's testimony does not impact her ineffective assistance claim. The questions were not objectionable on the basis of post-arrest silence because appellant was not silent. However, appellant also complains of defense counsel's failure to object to the State's questioning of Narcotics Officer Jim Dickson. The prosecutor called Officer Dickson as a rebuttal witness. On the day of the arrest, Officer Dickson oversaw the agents who conducted the search of the motel rooms. He interviewed appellant at the motel. Officer Dickson testified that when he asked appellant about the crack cocaine found in her purse and in the room, she responded that "she didn't want to say anything." When asked what her general attitude or demeanor was that day, Officer Dickson testified that appellant "didn't want to cooperate. She was not going to talk at all about anything. It was like I gave her an opportunity to explain what her business there was, what she was doing in possession. She didn't want to talk." Officer Dickson also testified that appellant said nothing about Brundage. Comments on a defendant's post-arrest silence fall into three categories: [1] When the prosecution uses defendant's post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant's ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous. [2] When the prosecutor does not directly tie the fact of defendant's silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming. [3] When there is but a single reference at trial to the fact of defendant's silence, the reference is neither repeated nor linked with defendant's exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant's silence constitutes harmless error. Buitureida v. State, 684 S.W.2d 133, 142 (Tex. App.--Corpus Christi 1984, pet. ref'd) (citing Chapman v. United States, 547 F.2d 1240, 1249-50 (5th Cir. 1977)). The State contends that the line of questioning at issue was not argued or commented on during its closing; that it was avoided altogether. The State further contends the testimony was not repeated and no reference was made to what appellant may have said, or may not have said, to the police. Further, even if such examination was questionable, the State asserts it was not harmful. We agree in view of the following: the appellant points to only one alleged line of questioning by the prosecution that concerns the silence of appellant; no contention is made by appellant that the remark was repeated or directly linked with her exculpatory story; the prosecution did not repeat the testimony or comment on the testimony during closing argument; the exculpatory story appears transparently frivolous; and the evidence of guilt appears otherwise overwhelming. See id. Further, appellant's testimony indicated she did not remain silent but made, what appears to have been, the same statement in court as was made to the officers on the day of her arrest. We therefore conclude the error, if any, related to appellant's sixth claim of ineffective assistance of counsel was harmless. Appellant's first five challenges to the effectiveness of her trial counsel must also fail because she has failed to allege how the result of the proceeding would have been different if counsel had not made the alleged errors. See Strickland, 466 U.S. at 690-94; Sanders v. State, 963 S.W.2d 184, 190 (Tex. App.--Corpus Christi 1998, pet. ref'd). Accordingly, we overrule appellant's second point of error. The trial court's judgment is AFFIRMED. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this 27th day of July, 2000. 1. See Tex. Health & Safety Code Ann. § 481.115 (Vernon Supp. 2000). 2. See Tex. Pen. Code Ann. § 12.42 (Vernon Supp. 2000). 3. During cross-examination, appellant testified that she had never seen crack cocaine before, and that Brundage gave her something that looked like diced potatoes.