Opinion
No. 05-04-01680-CR
Opinion Filed November 2, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-50978-HM. Affirmed.
Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.
OPINION
A jury convicted Tracey Levette Fulford of aggravated robbery with a deadly weapon. The trial court assessed punishment at twenty-five years confinement. In two issues, Fulford argues the trial court erred by allowing the State to inquire about her post-arrest silence in violation of the federal and Texas constitutions. We affirm.
Background
In the early morning of April 13, 2004, Officer Jesse Woods observed a four-door gray Cadillac back out of a restaurant parking lot onto Dolphin Road in Dallas and stop, blocking the southbound lanes of traffic. He saw the female driver exit the vehicle, approach a nearby dumpster, and return to the car. Woods drove up to the car and asked the driver why she was blocking traffic, but the driver did not respond. About that same time, Eric Cornejo, a Hispanic male who did not speak English, approached the officer's vehicle. Woods observed blood on Cornejo's arm. Woods did not understand Spanish, but testified that Cornejo appeared upset and scared and pointed to the female in the Cadillac. Woods drew his gun and ordered the female, later identified as Kena Jones, from the car. He then discovered another female, Dishetia Thomas, in the car. Woods detained both females and called for backup. The security guard at a nearby club detained a third female, later identified as Tracey Fulford. After a Spanish-speaking officer arrived, Cornejo told the officer he worked at the restaurant and delivered a food order to the club. As he left the club, he saw three females exit a gray four-door car. The females approached him in the parking lot and began to beat him with their hands and feet. He tried to protect himself with his hands, but Jones cut him with a knife on his back, arm and hand. They stole his wallet containing $400 cash that he received in pay that day. Then Jones and Thomas returned to the car, and Fulford "nonchalantly" walked toward the club. Cornejo yelled at the club's security guard to stop Fulford. About that same time, Cornejo saw Officer Woods and tried to tell him what happened. Cornejo was carried by ambulance to a hospital where he received stitches for the cuts on his arm and back. According to the officers, Fulford, Jones and Thomas were not read Miranda warnings at the scene and did not make any statements. Fulford testified in her own defense, denying all involvement and claiming Cornejo lied about her involvement. She also testified that she made exculpatory statements to the officers at the scene.Standard of Review and Applicable Law
The federal constitution's guarantee of due process prohibits comment on an accused's post-arrest silence after, but not before, Miranda warnings are given. Fletcher v. Weir, 455 U.S. 603, 607 (1982); Doyle v. Ohio, 426 U.S. 610, 617-18 (1976). The Texas Constitution provides additional protection and prohibits comment on a person's post-arrest silence both before and after Miranda warnings are given. Sanchez v. State, 707 S.W.2d 575, 579-80 (Tex.Crim.App. 1986). To preserve these constitutional grounds for review, an appellant must make a proper objection and obtain a ruling on that objection. Tex.R.App.P. 33.1; Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). A proper objection is timely and specific, stating the grounds for the ruling sought with sufficient specificity unless the grounds are apparent from the context, and pursued to an adverse ruling. Tex.R.App.P. 33.1. A timely objection is made at the first opportunity or as soon as the basis for the objection becomes apparent. Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App. 1997); Jones v. State, 111 S.W.3d 600, 604 (Tex.App.-Dallas 2003, pet. ref'd). When a question clearly calls for an objectionable response, the objection should be lodged before the witness answers the question. Dinkins v. State, 894 S.W.2d 330, 355 (Tex.Crim.App. 1995). If the objection is made after the objectionable question has been answered, and the complaining party cannot show a legitimate reason to justify the delay, his objection is untimely and error is waived. Id.; Jones, 111 S.W.3d at 604. Unless counsel obtained a running objection or requested a hearing on the objection outside the presence of the jury, counsel must continue to object each time the evidence is offered. See Tex. R. Evid. 103(a)(1); Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003). Even constitutional error is waived if the defendant fails to timely object. See Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995); Smith, 721 S.W.2d at 855. We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002). We will uphold the trial court's ruling "if it is reasonably supported by the record and is correct under any theory of law applicable to the case." Id.Comments on Appellant's Post-arrest Silence
Fulford complains on appeal that the trial court violated her rights under the federal and Texas constitutions by allowing the State to inquire about her post-arrest silence. See U.S. Const. amend. V; Tex. Const. art. 1, § 10. She complains about the State's questions at three different points during the trial: direct examination of Officer Woods, his rebuttal testimony, and her cross-examination.1. Woods's Testimony During State's Case-in-Chief
In a subpart of her first and second issues, Fulford argues the trial court impermissibly allowed the State to question Woods about whether Fulford made any exculpatory statements at the scene. Fulford complains about the following questions:Q. Did the defendant who you've identified in court today, the one who was held by the security guard, did she say anything to you out there at the scene?A. No. Q. Never said, "I didn't do anything."
[DEFENSE COUNSEL]: Objection, Your Honor. Improper question. Calls for hearsay.THE COURT: Overruled.
Q. (BY [THE STATE]) She never said, "Hey, I didn't do anything"?A. No, never said anything.
[DEFENSE COUNSEL]: Objection, Your Honor. I ask that be stricken. That's an improper question, and my client has a right not to inculpate or exculpate herself at the scene of the crime.THE COURT: Overruled.
Q. (BY [THE STATE]) She hadn't been read any rights; is that correct?A. Correct.
Q. She wasn't told that she was under arrest and had the right to remain silent; is that correct?A. Correct.
Q. And she never once said, "Hey, I didn't do anything." Is that right?A. Right.
Q. Never said, "Hey, this guy was trying to get sex from me, what are you doing?"A. No. Q. Never said anything like that?
[DEFENSE COUNSEL]: Objection, Your Honor. That calls for hearsay. THE COURT: Overruled.
Q. (BY [THE STATE]) Never made any type of statement at all like that; is that correct?A. Correct. We do not reach the merits of Fulford's complaint about this line of questioning because we conclude she failed to preserve error. Her objections were not timely or specific. She made a general objection that the question was improper or called for hearsay. Neither objection was specific enough to apprise the trial court that she was objecting on constitutional grounds. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App. 2004) (objection on Fifth Amendment grounds not sufficient to preserve error on state constitutional grounds); see also Cleveland v. State, No. 01-03-01040-CR, 2005 WL 826943, at *6-7 (Tex.App.-Houston [1st Dist.] Apr. 7, 2005, pet. ref'd) (en banc) (objection must refer specifically to Texas Constitution or Sanchez). Even if we construe Fulford's objection that she "has a right not to inculpate" herself at the crime scene as an objection under both the federal and Texas constitutions, this objection was not timely, the information had already come in without objection, she did not give a legitimate reason for the untimely objection, she did not object to three following questions which elicited the same testimony, and she did not request a running objection. As a result, Fulford failed to preserve error for our review. See Salazar v. State, 131 S.W.3d 210, 214 (Tex.App.-Fort Worth 2004, pet. ref'd) (citing Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998)). We overrule the subpart of Fulford's first and second issues alleging violations of the federal and Texas constitutions during the direct examination of Officer Woods.
2. Woods's Testimony in Rebuttal
In another subpart of her first and second issues, Fulford complains her rights under the federal and Texas constitutions were violated when the trial court allowed the State to impeach her testimony by offering Woods's testimony in rebuttal:Q. Now, Officer, after you had detained the three suspects in this case, Tracey Fulford, Dishetia Thomas, and Kena Jones, did this defendant, Ms. Fulford, make any statements to you at all?A. No, ma'am.
Q. Did she ever deny any involvement in this aggravated robbery at all?A. No.
Q. Did she ever say anything like, well, hey, why am I being arrested, I didn't do anything?A. No. * * *
Q. And they were made aware that they were being taken to the jail for aggravated robbery; is that correct?A. Correct.
Q. And none of them made any statements denying their involvement in this aggravated robbery; is that right?A. Right. Fulford did not object to any of this testimony. As a result, Fulford failed to preserve error for our review. Tex.R.App.P. 33.1; Smith, 721 S.W.2d at 855 (failure to object to comments on post-arrest silence at trial does not preserve error). We overrule this subpart of Fulford's first and second issues complaining about Woods's rebuttal testimony.
3. Cross-examination of Fulford
In a subpart of her second issue, Fulford also complains the trial court erred by allowing the State to cross-examine her on her post-arrest silence in violation of her rights under the Texas Constitution:Q. And when the police had you out there with Ms. Jones and Ms. Thomas that night, you never said anything about having nothing to do with this, did you?
[DEFENSE COUNSEL]: Objection, Your Honor. I think we addressed this issue.
THE COURT: Overruled, according to the US Supreme Court in Fletcher, Superintendent, Bell County Forestry Camp vs. Weir, it is admissible for impeachment.
Q. (BY [THE STATE]): You never told that police officer out there that night that you had nothing to do with this, did you?A. I told the security guard, why you grabbing me.
Q. And when those police officers put you in handcuffs and put you in that police car, you never said, hey, I didn't have nothing to do with this?
A. Yes, I did because I told Kena, I said, Kena, why don't you tell these people that I didn't have nothing to do with that.
Q. You never told the police out there that this guy Eric, I know him?A. No.
Q. You never told the police, hey, this knife belongs to Eric, did you?
A. I didn't — I don't know nothing about — I didn't even see no knife.* * *
Q. And you never told the police that night that he was coming after you for sex?A. Yes, I did.
Q. You never told any police officer out there that night that that's what was going on?A. Yes, I did.
Q. And you never told any police officers since you've been in jail, have you?A. No, not in here. Here, Fulford's objection was timely, but it was not specific. From the record, it appears the trial court understood the objection that "we addressed this issue" referred to the federal constitution because the court overruled the objection based on Fletcher, which does not prohibit comments on the accused's post-arrest silence before Miranda warnings are given. Fletcher, 455 U.S. at 607. However, it is not apparent from the record that the trial court understood the objection was also based on the Texas Constitution. See Cleveland, 2005 WL 826943, at *6-7. But even if it could be so construed, Fulford failed to preserve error. After the trial court overruled her objection, Fulford did not continue to object after each question, and the evidence came in without objection. This same evidence was also admitted earlier without objection. As a result, Fulford failed to preserve error. See Leday, 983 S.W.2d at 718 (erroneous admission of evidence not reversible when same evidence received without objection, either before or after complained-of ruling); Smith, 721 S.W.2d at 855 (failure to object to questions about post-arrest silence does not preserve error). We overrule this subpart of Fulford's second issue complaining about the State's questions of her on cross-examination. Having addressed all of Fulford's complaints on appeal, we overrule Fulford's first and second issues.