Jessica L. Tellez v. State ( 2005 )

MEMORANDUM OPINION

No. 04-03-00850-CR

Jessica L. TELLEZ,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-4755C

Honorable Pat Priest, Judge Presiding

Opinion by:    Sarah B. Duncan, Justice

Sitting:            Alma L. López, Chief Justice (concurring in the judgment only)

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed:   June 29, 2005

AFFIRMED

            Jessica Tellez appeals the judgment convicting her of murder and sentencing her to thirty years confinement in the Texas Department of Criminal Justice – Institutional Division. Tellez argues she was denied due process of law by the State’s use of her pre-arrest, pre-Miranda silence as substantive evidence of guilt and that her trial attorney rendered ineffective assistance of counsel by failing to properly object to the State’s use of her pre-arrest silence as evidence of guilt. We disagree and affirm.

            1. Tellez argues her right to due process under the Fifth Amendment to the United States Constitution was violated by the “prosecution stressing and repeating evidence that [Tellez] had failed to immediately contact authorities and present her exculpatory version of the facts” and “impl[ying] that [her] silence and failure to come forward were a tacit admissions [sic] of guilt.” Tellez identifies nine instances in which she contends the “State attempted to use [her] silence as a tacit admission of guilt.” However, in eight of these, Tellez either failed to object or objected on grounds different from that she urges on appeal. With respect to these eight instances, Tellez therefore failed to preserve any error for review. See Tex. R. App. P. 33.1(a); Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002) (holding that “the failure to object in a timely and specific manner during trial forfeits complaints about the admissibility of evidence ... even though the error may concern a constitutional right of the defendant”); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (holding that “[b]ecause [appellant’s] trial objection does not comport with the issue raised on appeal, [appellant] has preserved nothing for review”), cert. denied, 531 U.S. 828 (2000).

            Tellez did raise a Fifth Amendment objection when the prosecutor asked one of the investigating officers whether Tellez contacted him on the day of the murder “to let [him] know ... she was just an unwitting accessary to this.” However, because “[p]re-arrest silence is a constitutionally permissible area of inquiry,” the trial court did not err in overruling the objection. Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988); see United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996); Harris v. State, 866 S.W.2d 316, 320 (Tex. App.–San Antonio 1993, pet. ref’d).

            2. Tellez next argues her “trial counsel was ineffective for allowing the impermissible evidence and failing to preserve [the issue] for appellate review.” Because Tellez has not shown that the testimony about her pre-arrest silence was inadmissible, she has failed to establish that counsel’s performance was deficient. See Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (holding that “[w]hen an ineffective assistance claim alleges that counsel was deficient in failing to object to the admission of evidence, the defendant must show, as part of his claim, that the evidence was inadmissible”), cert. denied, 538 U.S. 998 (2003).

            The trial court’s judgment is affirmed.

Sarah B. Duncan, Justice

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