Fourteenth Court of Appeals Justice Jeffrey V. Brown, writing for a panel including Justices John S. Anderson and Kem Thompson Frost, held that defendant's attorney did not render ineffective assistance at trial by failing to object to improper opinion testimony regarding his truthfulness and that the trial court's admission of evidence of Salinas’s silence during a pre-arrest interview was proper. The investigators told the Salinas family about the murder investigation and obtained consent to search the home. Salinas’s father tendered a shotgun to the police. Salinas agreed to voluntarily accompany the officers to a police station for questioning.
Sergeant C.E. Elliott of the Houston Police Department testified at trial that he questioned Salinas at the police station for nearly an hour. During the questioning, Salinas told Sergeant Elliott he knew the Garza brothers through Mike Provazek and had visited the apartment three or four times before the shooting. According to Sergeant Elliott’s testimony, Salinas said he had no disagreement with either of the Garza brothers and did not own any weapons aside from the shotgun police took into custody. At that point in Sergeant Elliott’s testimony, the prosecutor approached the bench, where the following exchange took place:
Ms. Garcia [Prosecutor]: Your Honor, there was a Motion in Limine granted that we should not be going into the defendant remaining silent when asked if the ballistics from his shotgun were going to match the shotgun shells found at the apartment. And at this time, we’d like to be able to go into that and show Sergeant Elliott’s testimony. The defendant was not in custody at this time. He was free to leave and he was merely there for investigatory purposes.
The Court: Was this part of the same conversation that we just heard?
Ms. Garcia: Yes, Your Honor, same conversation.
Mr. McWilliams [Salinas’s counsel]: Judge, I renew my same objection, that he has—he can invoke the Fifth Amendment privilege whether he was in custody or not. He doesn’t have to talk to the police.
The Court: Okay. I agree, but unless you know that, in fact, he did do that.
Mr. McWilliams: He remained silent, Judge.
The Court: Okay. Thank you.
The court went off the record before Sergeant Elliott’s examination resumed. A little later, the following exchange, which forms the basis of both of Salinas’s issues on appeal, took place:
Q. Did you ask him, Sergeant Elliott, if the shotgun in question here would match the shells recovered at the scene of the murder?
A. Yes.
Mr. McWilliams: I renew the objection.
The Court: The objection is overruled.
Q. (By Ms. Garcia) You can answer the question.
A. Yes, I did ask him that.
Q. And what was his answer?
A. He did not answer.
Q. Did he make any motions after that? Did he—
A. Yes.
Q. What did he do?
A. Showed signs of deception.
Q. And what were they?
Mr. McWilliams: Object to that, Judge, as calling for speculation.
The Court: Sustained.
Mr. McWilliams: I ask that the jury be instructed to disregard that.
The Court: The jury—the objection is sustained. The jury will disregard the last statement of the officer.
Q. (By Ms. Garcia) Sergeant Elliott, what specifically did the defendant do after he remained silent when you asked him that question?
A: Looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up.
Q: Did you continue to question him after that?
A: Yes.
Q: And did you ask him—did he answer any more questions?
A: Yes.
***
Q: So, Sergeant Elliott, approximately how many questions would you say the defendant answered on that evening of your conversation?
A: I’ve never counted the questions before because this was just talking.
Q: Well, let me ask it this way if that’s difficult to answer. About how long did this conversation last, if you remember?
A: Two minutes short of an hour.
Q: So, in this 58 minutes that you talked to Genovevo Salinas on January 28th of 1993, how many questions did he not answer?
A: One.
***
Q: So, what changed before this conversation to alter this conversation to cause you to take him into custody?
A: My opinion.
Q: And how did your opinion change?
A: I had the opinion that he was being deceptive and lying to me and I wanted to hold on to him.
After the interview, Sergeant Elliott arrested Salinas on some outstanding traffic warrants. The ballistics analysis matched Salinas’s shotgun with the casings left at the murder scene. However, the Harris County District Attorney’s office declined charges, and Salinas was released. Police procured an additional statement from Cuellar, who, according to Sergeant Elliott, came to the police station unannounced and unsolicited to offer a third statement in which he said Salinas confessed he had murdered the Garza brothers. Cuellar testified that Salinas was his friend and that he hoped police would solve the murder without his help, but after a dream in which he saw the Garza brothers he felt compelled to come forward. Salinas was then charged with murder but eluded arrest until 2007, when he was arrested while maintaining a false identity. Salinas’s first trial resulted in a mistrial, but the jury in his second trial found him guilty and sentenced him to twenty years’ imprisonment and a $5,000 fine.
Salinas complained that his trial counsel failed to object when Sergeant Elliott opined that Salinas was “deceptive and lying.” Salinas argues this testimony was an inadmissible opinion of Salinas’s truthfulness, and trial counsel’s failure to object prejudiced his defense. While it is true that other courts--Texarkana, Dallas and El Paso-- have found that a failure to object to improper opinion testimony was sufficient to undermine confidence in the outcome of the case. Each of these instances arose from sexual-assault or indecency-with-a-child cases in which the victim’s credibility was the only real issue at trial and counsel repeatedly or entirely failed to object to the introduction of testimony on the truthfulness and credibility of the victim’s allegations. This case does not hinge on a single witness’s credibility.
In his second issue Salinas asserts the trial court erred in admitting testimony of his pre-arrest, pre-Miranda silence. Sergeant Elliott testified that Salinas remained silent when asked if ballistics testing on the shotgun his father surrendered to police would match the shell casings found at the murder scene. According to Sergeant Elliott, Salinas showed “signs of deception” when he failed to respond: looking down at the floor, shuffling his feet, biting his bottom lip, clinching his hands in his lap, and tightening up. Sergeant Elliott further testified that Salinas answered every question but this one during the nearly hour-long interview. Defense counsel objected to the testimony on the grounds that Salinas had invoked his Fifth Amendment privilege against self-incrimination by remaining silent. The trial court overruled the objection. During closing argument, the prosecutor argued, over defense counsel’s objection, that Salinas’s silence was evidence of his guilt. The United States Supreme Court has yet to decide what protections, if any, the Fifth Amendment affords to pre-arrest silence when the defendant does not testify and his silence is introduced by the State not for impeachment but in its case-in-chief. Texas precedent does not provide guidance. The federal courts of appeals are split on the issue. The First, Sixth, Seventh, and Tenth Circuits have held that pre-arrest, pre-Miranda silence is not admissible as substantive evidence of guilt. The Fifth, Ninth, and Eleventh Circuits, on the other hand, have held that pre-arrest, pre-Miranda silence is admissible as substantive evidence of guilt. The Fourteenth Court of Appeals agrees with the Fifth, Ninth, and Eleventh Circuits. The Fifth Amendment has no applicability to pre-arrest, pre-Miranda silence used as substantive evidence in cases in which the defendant does not testify.
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