Paul Rosales v. State ( 2011 )

NO. 07-10-0389-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 18, 2011
__________________________
PAUL F. ROSALES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
__________________________
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-425,826; HONORABLE CECIL G. PURYEAR, PRESIDING
__________________________
Memorandum Opinion
__________________________
Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1
After pleading guilty to the offense before a jury, Paul F. Rosales was convicted
of burglarizing a habitation. He then tried the issue of punishment to the same jury,
which eventually levied a sentence of fifty years in prison. The two issues before us
concern appellant’s Fifth Amendment right to remain silent and the State’s comment
upon appellant’s refusal to waive that right. The comment was made during the
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John T. Boyd, Senior Justice, sitting by assignment.
punishment phase of the trial, again, after appellant had already pled guilty. We
overrule the issues and affirm the judgment.
The colloquy between the prosecutor and witness occurred as follows:
Q. Now, did you and – decide to Mirandize this Defendant and also the
passenger?
A. After Investigator McAdoo got to the scene.
Q. Okay. And who is Anthony McAdoo?
A. He is a criminal investigator in our Investigations Division. He was the
on-call investigator and he was sent out to the scene.
Q. And when we talk about mirandizing someone, we’re talking about if
you want to waive your rights and speak to law enforcement, someone
can – you know, you can hire an attorney if you can’t afford one, you have
the right to talk to us or not; is that correct?
A. Yes, sir.
Q. I mean, it’s a little bit more detailed than that, but that’s what the
Miranda warnings are; is that correct?
A. Yes, sir.
Q. Did either Jesus or this Defendant ever waive their rights and speak to
you?
A. No, they refused.
Q. Okay.
Thereafter, appellant’s counsel sought leave to approach the bench. Upon receiving
such leave, counsel stated: “. . . at this time I believe that is a comment on his post-
arrest right to remain silent, and it goes to his failure to provide a defense and shifts the
burden.” The trial court overruled the purported objection.2
2
Appellant’s quotation of the pertinent colloquy between the prosecutor and witness is inaccurate.
It indicates that he objected to the State’s effort to offer testimony commenting upon appellant’s decision
to remain silent before the law enforcement officer was asked if appellant waived the right. The record,
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A defendant must timely object to a purported comment about his decision to
remain silent to preserve the error for review. Salazar v. State, 131 S.W.3d 210, 214
(Tex. App.–Fort Worth 2004, pet. ref’d); Maxson v. State, 79 S.W.3d 74, 76 (Tex. App.–
Texarkana 2002, pet. ref’d). To be timely, the objection must be uttered as soon as the
ground for objection became apparent. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim.
App. 2008). Waiting until after the question has been asked and answered while failing
to show any legitimate reason for the delay does not satisfy the requirement. Dinkins v.
State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). And, that is what occurred here. It
is clear that the prosecutor was broaching, for some reason, the topic of remaining
silent and one’s right to do so. It is also clear that the foregoing was a prelude to the
witness being asked if appellant waived his right to remain silent. Why appellant opted
to withhold objection until the question was answered is unexplained. So, under these
circumstances, we conclude that appellant neglected to satisfy the requirement that he
preserved the issues for review by timely objecting. Consequently, the issues before us
were waived.3
however, discloses that appellant’s counsel said nothing until after the question was asked and
answered. This distinction is of import, as we will illustrate, supra.
3
Even if not waived, we note that when a defendant pleads guilty, he admits the existence of all
facts necessary to establish his guilt and the introduction of evidence by the State is to permit a judge or
jury to exercise its discretion in the assessment of punishment. Carroll v. State, 975 S.W.2d 630, 631-32
(Tex. Crim. App. 1998). While it is true that a constitutional privilege against self-incrimination still exists
at the punishment phase of trial, Carroll v. State, 42 S.W.3d 129, 132 (Tex. Crim. App. 2001), the entry of
an accused’s guilty plea diminishes the force of his assertion that his post-arrest silence constitutes a
right against self-incrimination and goes only to the issue of punishment and not guilt. See Price v. State,
640 S.W.2d 673, 675 (Tex. App.–Houston [14th Dist.] 1982, no pet.) (quoting Williams v. State, 607
S.W.2d 577, 579 (Tex. Crim. App. 1980)). This is particularly true in light of appellant’s complaints that
the reference to his post-arrest silence went to his “failure to provide a defense” and “shift[ed] the
burden.”
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Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
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