Salinas, Genovevo Salinas

In the Court of Criminal
Appeals of Texas
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No. WR-90,982-01
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EX PARTE GENOVEVO SALINAS SALINAS,
Applicant
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On Application for a Writ of Habeas Corpus
Cause No. 656545-A from the 230th District Court
Harris County
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YEARY, J., delivered the opinion of the Court, in which KELLER,
P.J., and RICHARDSON, SLAUGHTER, and MCCLURE, JJ., joined. HERVEY,
J., concurred in the result. WALKER, J., dissented. NEWELL and KEEL,
JJ., did not participate.
In this post-conviction application for writ of habeas corpus
proceeding, Applicant challenges the constitutional effectiveness of his
trial counsel at his second murder trial. TEX. CODE CRIM. PROC. art.
SALINAS – 2
11.07. The underlying offense involved the double homicide of Juan and
Hector Garza, committed in December of 1992. 1 Aware that the police
suspected him of the crime, Applicant absconded and was not arrested
until 2007. Applicant’s first trial, in 2008, resulted in a hung jury. But a
different jury found him guilty at his second trial in 2009, and it
assessed his punishment at confinement in the penitentiary for twenty
years and a $5,000 fine.
Applicant’s trial attorneys were the same for both trials. He
argues here that they performed deficiently at his second trial, primarily
by allowing the admission of evidence that he stood mute—saying
nothing at all—when investigating officers posed one particular
question during an interview at the station house in January of 1993.
The investigating detectives asked Applicant whether forensic toolmark
examination would reveal that the shotgun recovered from his parents’
home, where he lived at the time of the offense, was the weapon used to
kill the Garzas. Applicant, who had waived his right to silence and
readily responded to their questions up to that point, would not answer.
At Applicant’s second trial, in 2009, trial counsel objected to the
admission of this evidence based upon Applicant’s Fifth Amendment
privilege not to be compelled to be a witness against himself, arguing
that his pretrial silence could not constitutionally be used against him
regardless of whether he was in custody at the time of the interview.
U.S. CONST. amend. V. Applicant pursued this argument on direct
1 Applicant was only charged with the murder of Juan Garza—not the
capital murder of both. The indictment alleged that Applicant intentionally
and knowingly caused Juan Garza’s death by shooting him with a deadly
weapon. TEX. PENAL CODE § 19.02(a)(1).
SALINAS – 3
appeal, Salinas v. State, 368 S.W.3d 550 (Tex. App.—Houston [14th
Dist.] 2011), on petition for discretionary review, Salinas v. State, 369
S.W.3d 176 (Tex. Crim. App. 2012), and ultimately on petition for
certiorari to the United States Supreme Court, Salinas v. Texas, 570
U.S. 178 (2013) (plurality opinion). His contention was rejected at every
stage, on various grounds.
Applicant now argues that trial counsel at the second trial
performed in a constitutionally deficient manner by failing to object to
the use of his pre-trial silence on two other grounds. First, he argues that
trial counsel should have objected that admission of the evidence of his
silence violated the Fourteenth Amendment’s Due Process Clause as
“fundamentally unfair” because it came after he was cautioned by police,
pursuant to the dictates of Miranda v. Arizona, 384 U.S. 436 (1966), that
his silence could not be used against him. See Doyle v. Ohio, 426 U.S.
610, 619 (1976) (“We hold that the use for impeachment purposes of
petitioner’s silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth
Amendment.”). 2 And second, he argues that trial counsel could and
should have kept the evidence of his refusal to answer out because it
was elicited as part of an oral statement made while Applicant was in
police custody, and such statements are inadmissible as a matter of
state law unless they are electronically recorded. See TEX. CODE CRIM.
2 Justice Alito pointed to this holding from Doyle in a footnote to the
Supreme Court’s plurality opinion on certiorari in Applicant’s case. Salinas,
570 U.S. at 188 n.3 (“Petitioner is correct that due process prohibits prosecutors
from pointing to the fact that a defendant was silent after he heard Miranda
warnings[.]”).
SALINAS – 4
PROC. art. 38.22 § 3(a)(1) (“No oral . . . statement of an accused made as
a result of custodial interrogation shall be admissible against the
accused in a criminal proceeding unless . . . an electronic recording . . .
is made of the statement[.]”).
Applicant contends that the prosecutor’s emphasis upon his
failure to respond to the question of whether forensic testing would
reveal that his shotgun was the murder weapon made all the difference
between a hung jury at his first trial and a conviction at his second.
Thus, he argues, he has adequately established prejudice for purposes
of his Sixth Amendment claim of ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 694 (1984) (in order to establish
the prejudice prong of a Sixth Amendment claim of ineffective assistance
of counsel, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”).
The convicting court has recommended that we grant Applicant a
new trial based upon the failure to challenge his pretrial silence on the
basis of either or both of these legal theories: (1) Doyle and (2) Article
38.22. It also found that trial counsel performed deficiently in a handful
of other comparatively trivial ways which, together with their failure to
prevent the admission of Applicant’s pretrial silence, coalesced to
undermine confidence in the outcome of his second trial. See id. (“A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”). We ultimately reject the convicting court’s
recommendation to grant relief. We filed and set the case in order to
explain why.
SALINAS – 5
I. BACKGROUND
A. The Offense Report 3
Juan and Hector Garza were gunned down in the pre-dawn hours
of December 18, 1992, in Hector’s small apartment in Houston, both
felled by close-range shotgun blasts. Police arrived shortly thereafter.
Two shotgun shell casings were recovered by the front door to the
apartment, and four more were recovered in the front room of the
apartment. The police had no immediate suspects, but they eventually
learned that Applicant had been at the apartment the night before until
about 10 o’clock with a friend, Mike Provazek, and that Applicant owned
a shotgun.
On January 11, 1993, Houston Police Department Homicide
Sergeants Wayne Wendel and W. O. Allen made first contact with
Appellant at his home, where he lived with his parents. Applicant was
cooperative, but he could not remember very many details. He admitted
he had gone to the Garza’s apartment with Provazek, and that he
smoked crack cocaine and drank beer while he was there. He could not
remember who else came by or what time Provazek took him home.
Later, police received a tip from crime stoppers that Applicant
was the person who committed the murders. As a result, on the evening
of January 28, 1993, Sergeant Wendel, this time along with Sergeant
Carlos Elliott, again contacted Applicant at his home and asked for
consent to search for the shotgun. Both Applicant and his father signed
consent forms, and Applicant’s father produced a shotgun from his own
3 A copy of the Houston Police Department offense report was admitted
as an exhibit at the writ hearing in 2019. The facts as set out in this subsection
of our opinion were gleaned from that offense report.
SALINAS – 6
bedroom and relinquished it to the officers.
Sergeant Wendel “retained” the shotgun at that time for
comparison to the casings left at the murder scene, and the officers
asked Applicant to accompany them to the police station to be
fingerprinted and photographed “for elimination purposes.” Applicant
agreed to go and was transported to the homicide office. He was first
Mirandized by Wendel at 6:43 p.m., and he acknowledged that he
understood his rights. At that point, he simply “denied any involvement
in the case.” The officers took a short break and provided Applicant a
cup of coffee; Applicant “was also smoking cigarettes.” Then, Sergeant
Allen (who had joined the other officers by this time) read Applicant his
rights for a second time, this time “from the top of a ‘Statement of Person
in Custody’ form,” after which Applicant initialed each listed right. He
also initialed a declaration on the form to say that he “intelligently and
voluntarily waive[d]” those rights in order to “make the following
voluntary statement.” “This was at” 6:56 p.m. What followed was not
memorialized on the statement form, or by electronic recording, or in
any other manner, other than by the officers’ descriptions in the offense
report itself, which Applicant did not endorse.
Applicant admitted to the officers that he knew Juan and Hector,
and that he had been at their apartment the night before the killing with
his friend, Mike Provazek. He acknowledged having mutual friends with
the Garza brothers, including Damien Cuellar (about whom more will
be said later). Applicant admitted they had been “smoking some ‘rocks’”
of crack cocaine and drinking beer, and that he left with Provazek, who
took him straight home. He denied having had “any type of
SALINAS – 7
disagreement” with the Garzas.
Sergeant Allen then asked Applicant whether he “had any other
gun’s [sic] than the shotgun[,]” which Applicant denied. Next, as
recounted in the offense report: “Sgt. Allen asked [Applicant] if the
shotgun would match the shells recovered from the scene and
[Applicant] would not answer the question.” But Applicant went on to
answer questions about what he had done the following morning,
claiming that he had been hung over, had called in sick to work, and had
returned to bed until early afternoon. He claimed he did not learn about
the killings until the weekend after it happened, when Mike Provazek
and Damien Cuellar informed him. And with that, according to the
offense report, Applicant “had nothing further to say” about the case,
and the interview concluded at 7:45 p.m.
A forensic examination, conducted the next day (January 29th),
revealed that the six shotgun shells found at the murder scene had
indeed been fired from the shotgun recovered from Applicant’s home.
Applicant, who had been detained temporarily in the city jail for a
number of outstanding capias pro fines, was informed of the outcome of
the forensic testing, and again “had nothing to say.” He was apparently
nevertheless released on January 30th. By the time police obtained an
arrest warrant on the murder charge, on February 1st, Applicant had
disappeared, and he was not arrested until November of 2007. He was
found to have been using an alias.
B. The First Trial 4
4 The convicting court took judicial notice of the record of Applicant’s
first and second trials, both of which we have reviewed. We find no indication
that trial counsel challenged the admissibility of the evidence of Applicant’s
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Sergeant Wendel was the first witness to testify at Applicant’s
initial trial in late June of 2008. He confirmed that he spoke to Applicant
on January 11th, 1993, and that Applicant told him that he had been at
Hector Garza’s apartment on December 17th, with Provazek, smoking
“crack” cocaine and drinking beer. Wendel made no mention of
Applicant’s oral statement at the station house on January 28th.
Later, Sergeant Elliott also testified. Like Wendel, Elliott relayed
no information about Applicant’s January 28th statement—at least not
during his direct examination. 5 On cross-examination, Elliott said that
he and Wendel had gone to Applicant’s home that day both to retrieve
the shotgun and “to interview [Applicant] in depth[.]” Applicant’s
counsel then asked Elliott if Applicant had “confessed” to the offense:
Q. So, you take him into custody on January 28th. Did he
ever confess to the kidnapping?
A. No.
Q. You certainly asked him some tough questions, though,
didn’t you?
A. Yes.
refusal to answer the question regarding what forensic examination of the
shotgun would reveal by way of pretrial motion or evidentiary hearing
conducted before either the first or second trial.
5 Asked during his direct examination whether the officers had
arrested Applicant after they obtained the shotgun from him, Elliott seems to
have alluded to Applicant’s statement when he answered: “We brought him
downtown to talk to him. After talking to him and the inconsistencies and we
checked him --”. Trial counsel’s objection that the answer was non-responsive
was sustained and the jury was instructed to disregard Elliott’s answer. He
went on to testify that they arrested Applicant for failure to pay traffic tickets.
SALINAS – 9
Before the State’s re-direct, the prosecutor approached the bench and
argued that this colloquy had opened the door to questioning Elliott
about Applicant’s oral statement. Applicant declared that he would
object to any testimony about the oral statement.
When the prosecutor later broached that topic with Elliott,
Applicant indeed objected and asked the prosecutor to “nail down the
time frame” so that it could be determined “whether that’s after he has
been placed in custody or before.” The trial court suggested that
Applicant’s counsel voir dire Elliott on that question. On voir dire, Elliott
testified that “[w]e talked to [Applicant] at his house and at the station,
but a lot of it was at the house there with his dad about the gun and all.”
Once they got Applicant to the police station, Elliott maintained, “we
were just going to interview him.” But he also asserted that Applicant
would not have been free to leave. Applicant’s counsel then objected that
“any custodial statement is still going to be governed by the Code[.]” In
reply, the prosecutor again insisted that Applicant’s cross-examination
of Elliott had opened the door to evidence of Applicant’s oral statement.
Without explicitly ruling on Applicant’s objection, the trial court
instructed the prosecutor that the State had “to establish whether or not
[Applicant] was” in custody.
Taking Elliott back on re-direct, the prosecutor elicited Elliott’s
opinion that, at least when they had first reached the police station,
Applicant was not in custody. Asked by the prosecutor whether
Applicant had been free to leave, Elliott answered:
We had been back to the station and we were realizing that
we were beginning to move in that direction, he had went
from being a witness to being a suspect. So, we stopped the
SALINAS – 10
interview and Mirandized him, gave him his warnings on
the form. * * * It started off as a conversation between
three men and moved over into an interview of a suspect.
Applicant then renewed his objection, apparently invoking Article 38.22,
Section 3, when he said, “ I object at this point unless we can get whether
or not that [interview] is in writing or on videotape or audiotape.” When
the prosecutor promised “to do that[,]” the trial court overruled
Applicant’s objection “at this point.”
What Elliott said next is, frankly, somewhat murky. The
prosecutor asked him what Applicant had told the officers at the house,
before being transported to the police station. Elliott indicated that
Applicant had told them everything that the offense report indicates he
told them after he was Mirandized at the station: namely, that he had
been to the Garzas’ apartment with Provazek the night before, smoking
crack and drinking; that he stayed home hung over the next morning;
and that he later learned about the killing from Provazek and Cuellar.
Still apparently describing the conversation at the house, Elliott said
they asked for Applicant and his father to produce the shotgun. Almost
immediately after that, the following colloquy occurred (leaving the
definite impression that Applicant’s refusal to answer the question
happened at the house, not during the statement at the police station):
Q. . . . When they brought the shotgun to you, did you ask
any questions about the shotgun to the defendant?
A. Yes.
Q. What did you ask him?
A. I asked him if the shotgun -- I recognized it was a .12-
SALINAS – 11
gauge. If the gun was going to match the shotgun used at
the murder scene.
Q. And why did you ask that question?
A. Hopefully, if there was a logical answer he would tell
me.
Q. Was he able to answer that question?
A. No, he would not. Did not. Just kind of ignored it. You
asked a question and it just sat there.
Applicant did not renew his objection at this point. 6 But neither did
Applicant’s trial counsel use the offense report to impeach Elliott’s
testimony, or to try to refresh his memory, with respect to where the
statement occurred.
The prosecutor’s closing argument at the guilt stage of trial
reinforced this impression when he argued:
And when [Applicant and his father] brought out his
father’s shotgun, the police asked -- police like to dig in
stuff like this.
Hey, we’re going to take this back to the lab. We’re going to
check to see if this was the shotgun. Is it going to come back
to a match?
What was the defendant’s response?
Just looked at them and said nothing.
6 Not only did Elliott claim⸻contrary to the offense report⸻that
Applicant’s silence occurred at the house, not the police station, he also claimed
to have been the one to pose the question, even though the offense report
plainly declared that Sergeant Allen had done so. For undisclosed reasons,
Allen did not testify at either trial.
SALINAS – 12
Applicant made no objection to this argument. Applicant’s first trial
ended in a mistrial when the jury was unable to reach a unanimous
verdict after a full day of deliberations.
C. The Second Trial
Applicant’s second trial for the murder of Juan Garza began less
than a year after the first, in March of 2009. Sergeant Wendel did not
testify again at the second trial, but Sergeant Elliott did. Different
prosecutors represented the State at the second trial, and a different
judge presided, while Applicant’s lawyers were the same. Evidence of
Applicant’s refusal to answer the investigators’ pointed question about
the likely result of forensic testing of the shotgun developed quite
differently at the second trial.
On the morning of the first day of testimony, the new prosecutor
announced that he wanted to mention Applicant’s refusal to answer in
his opening statement to the jury, which he considered a “very important
piece of evidence[.]” He argued that, from his review of both the offense
report and the transcript of the first trial, he believed that the refusal to
answer occurred as the officers were speaking with Applicant at his
house. He concluded that Applicant “was not in custody at the time he
made those statements and therefore it’s admissible.” Applicant’s
counsel replied that he had had “an agreement” with the first-trial
prosecutor as to Applicant’s custody status, and that the only reason the
evidence of Applicant’s station-house statement had come in at the first
trial was that defense counsel had opened the door to it. 7 The new judge
7 Applicant’s trial counsel did not elaborate about the exact nature of
his “agreement” with the prosecutor at the first trial, and the record of the first
SALINAS – 13
announced that she agreed with the State that it boiled down to a
question of whether Applicant was in custody at the time, and since she
had not yet heard any testimony relevant to that question, she declined
to rule on its admissibility. The prosecutor refrained on that basis from
mentioning it during his opening statement.
Elliott testified at the second trial, however, contrary to the
impression left by his testimony at the first trial, that the statement did
not occur at the Applicant’s house after all. Consulting the offense
report, Elliott instead maintained that Applicant “did not say anything
additional” to the officers once the shotgun had been produced, but that
he did agree to accompany them to the police station. Elliott maintained
that Applicant was not “under arrest” or “in custody” when taken
“downtown,” and that he was “free to leave at that time[.]” Without even
mentioning whether Applicant had been Mirandized at the station,
Elliott then began to testify about what Applicant told the officers there.
Before introducing the subject of Applicant’s refusal to answer the
one question at issue here, the prosecutor approached the bench
pursuant to a motion in limine that he said had been granted pretrial.8
Applicant’s counsel objected that to introduce Applicant’s refusal would
violate his Fifth Amendment privilege to remain silent “whether he was
in custody or not.” The trial court did not explicitly rule on this objection
trial reveals no such explicit agreement. Understandably, the new trial court
judged asked: “How can the two of you read the same transcript and accuse the
other of being wrong [about] that[?]”
8We have found no such motion in limine, nor any other allusion to it,
anywhere in the appellate record.
SALINAS – 14
during the bench conference⸻at least not on the record. 9
Still without any allusion to the Miranda warnings, the
prosecutor commenced to lead Elliott through a narrative of the
questions Applicant did answer at the station (as reflected in the offense
report). Then she asked him:
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. 10
Applicant’s counsel renewed his previous objection, which the trial court
expressly overruled. The following colloquy ensued:
Q. And what was his answer?
A. He did not answer.
* * *
Q. 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.
9Shortly after this bench conference, the trial court convened another
bench conference which seems not to have been transcribed.
10 We note, once again, that the offense report reflects that it was Allen,
not Elliott, who actually asked Applicant the question. See note 6, ante. Elliott
conceded on cross-examination at the second trial that, at least as a general
proposition, the offense report was “likely to be more accurate” than his trial-
time memory.
SALINAS – 15
Q. Did you continue to ask him questions after this?
A. Yes.
Q. And did you talk to him -- did he answer any more
questions?
A. Yes.
Q. He continued to answer questions?
A. Yes.
* * *
Q. So, in this 58 minutes that you talked to [Applicant] on
January the 28th of 1993, how many questions did he not
answer?
A. One.
Applicant’s trial counsel made no objection to this testimony other than
that it violated Applicant’s Fifth Amendment privilege to remain silent
regardless of whether he was in custody at the time. Counsel made no
attempt to elicit testimony from Elliott that Applicant had been
Mirandized by the time he refused to answer, and neither did they
attempt to invoke the protections of the Due Process Clause under Doyle.
Nor did they argue that Applicant was in custody by that time, and
object accordingly (as they appear to have done at the first trial) that his
statement⸻including his refusal to answer the “one” question⸻was
inadmissible because it was not electronically recorded, as required by
Article 38.22, Section 3(a)(1).
The State then made more of a point of emphasizing Applicant’s
silence during its closing argument at the second trial than it had at the
SALINAS – 16
first. The prosecutor argued:
But then [the police] say [to Applicant, at the
station]: All right. Let me ask you this. That shotgun that
we just took, we checked the ballistics. Is it going to match
up to the ballistics that we found at the murder scene? He’s
shocked. Probably the first time --
[Defense Counsel]: Objection, Your Honor. That’s
outside the record. 11
THE COURT: Sustained.
[Prosecutor]: The police officer testified he wouldn’t
answer that question. He didn’t want to answer that.
Probably the first time he realizes you can do that. What?
You can compare those? * * * He didn’t say: No, it’s not
going to match up. It’s my shotgun. It’s been in my house.
What are you talking about? He wouldn’t answer that
question.
But it’s not like he just won’t talk to [the police]. He
is talking freely even before and after that question, but he
does not answer that question and he had an hour span
when he talked to [them].
Twice more during his final argument, the prosecutor alluded to
Applicant’s refusal to respond to this “one” question, albeit in passing
while summarizing all of the evidence showing Applicant’s guilt. This
time the jury convicted Applicant after about five hours of deliberation.
The jury also assessed his punishment at twenty years’ confinement in
the penitentiary and a $5,000 fine.
11 Here, Applicant’s counsel seems to have objected to the description of
Applicant as “shocked”⸻for which there was indeed no direct evidentiary
support⸻rather than the reference to Applicant’s refusal to answer the
question.
SALINAS – 17
D. The Appeal
Applicant appealed the issue that he did preserve at the second
trial, namely, whether use of his refusal to answer the “one” question
against him violated his Fifth Amendment right to silence regardless of
whether he was in custody or had been Mirandized. The court of appeals
rejected this claim. It first noted that “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.”
Salinas, 368 S.W.3d at 557. It also noted a split in authority over this
question among both state courts and federal circuits. Id. at 557–58 &
n.2. The court of appeals opted for those cases that have refused to
recognize a Fifth Amendment application to non-custodial silence, on
the ground that “only government compulsion triggers its protections
against self-incrimination.” Id. at 558. It held that “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.”
Id.
On discretionary review, this Court affirmed the court of appeals’
judgment and endorsed its reasoning. See Salinas, 369 S.W.3d at 179
(“In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with
police officers is not compelled. Thus, the Fifth Amendment right
against compulsory self-incrimination is ‘simply irrelevant to a citizen’s
decision to remain silent when he is under no official compulsion to
speak.’”) (quoting Jenkins v. Anderson, 447 U.S. 231, 241 (1980)
(Stevens, J., concurring))).
SALINAS – 18
Given the national split in authority, the United States Supreme
Court granted certiorari. Salinas v. Texas, 568 U.S. 1119 (2013). Having
granted review to decide “whether the prosecution may use a
defendant’s assertion of the privilege against self-incrimination during
a noncustodial police interview as part of its case in chief[,]” however, a
plurality of the Supreme Court ultimately found it “unnecessary to
reach that question.” Salinas v. Texas, 570 U.S. 178, 183. Instead, the
Supreme Court plurality held that a defendant under these noncustodial
circumstances is at least “required to invoke” his Fifth Amendment
privilege before he may rely upon it to insulate his silence from
substantive use at trial. Id. at 191. And a suspect who is not in custody,
has not been Mirandized, 12 “and who stands mute has not done enough
to put police on notice that he is relying on his Fifth Amendment
privilege.” Id. at 188. At this juncture in its opinion, the Supreme Court
plurality dropped a footnote to observe that “Petitioner is correct that
due process prohibits prosecutors from pointing to the fact that a
defendant was silent after he heard Miranda warnings,” citing Doyle,
426 U.S. at 617–18, “but that rule does not apply where a suspect has
not received the warnings’ implicit promise that any silence will not be
used against him[.]” Salinas v. Texas, 570 U.S. at 188, n.3. Of course,
because the offense report indicates that Applicant was in fact
Mirandized before refusing to answer the officers’ question about what
12 Because Elliott had not testified at Applicant’s second trial
(consistent with the offense report) whether Applicant had been Mirandized,
the case arrived at the Supreme Court in the posture that his statement had
occurred before he received his Miranda warnings. See Salinas, 570 U.S. at 181
(plurality opinion) (“Without being placed in custody or receiving Miranda
warnings . . .”). See notes 11 & 12, post.
SALINAS – 19
forensic evaluation of the shotgun would reveal, he now argues that his
trial counsel were ineffective for failing to invoke the due process
protection of Doyle.
E. The Writ Application and Hearing
George Parnham and Dee McWilliams represented Applicant at
both his first and second trials. The convicting court ordered each of
them to submit an affidavit in response to Applicant’s ineffective
assistance of counsel claims. In their affidavits, both Parnham and
McWilliams invoked the “confusion” generated by Elliott’s vague and
variable accounts from one trial to the next as to exactly when Applicant
was in custody and at what point he was Mirandized. Both asserted that
their approach to handling the issue of Applicant’s refusal to answer had
been a product of long-considered strategy. But neither could remember
precisely what that strategy might have been⸻apart from taking what
McWilliams called an “adamant position” that Applicant’s right to
silence was protected by the Fifth Amendment regardless of whether he
was in custody.
Each also testified at an evidentiary hearing conducted over the
course of two days, in April (McWilliams) and September (Parnham) of
2019. During his testimony, McWilliams acknowledged that he had had
access to the offense report during Applicant’s second trial. With respect
to Applicant’s claim that he should have raised Doyle error, he seems to
have misremembered Elliott’s testimony from the second trial, because
he evinced a belief that Elliott had claimed that Applicant’s statement
and accompanying refusal to answer the one relevant question all
SALINAS – 20
occurred before Applicant was Mirandized. 13 He acknowledged that the
offense report showed otherwise, and he could not remember whether or
why he did not also try to develop a Doyle claim, other than to explain
that he “just didn’t want to get . . . pigeonholed into the issue about
whether he was in custody or whether it happened before or after the
Miranda warnings.” He believed that by insisting that the Fifth
Amendment covered pre-custodial invocations of the right to silence, he
could obviate these factual issues.
McWilliams said he was aware of Doyle at the time of Applicant’s
second trial, but he made the following pertinent observation about it:
Q. Specifically[,] Doyle v Ohio, what’s your understanding
of the Supreme Court’s ruling in that case?
A. Well, I don’t believe that after you’ve been mirandized
if you choose to invoke your right to remain silent, then
that would be protected.
I don’t -- I think that when we talk about that, we’re
thinking of that in terms of someone gets mirandized and
they say I’m not talking to you. I’m invoking my Fifth
Amendment privilege or what -- however they handle it
and don’t say anything.
I think it’s a -- was more of an open-ended question
about what happens in the context of a person who actually
waives their rights and executes and signs off on a consent
form and gives a statement voluntarily. And then at
certain points during the interview invokes their right to
silence and whether they would have a right to -- whether
they waived that or not.
13 In fact, in his testimony at the second trial, Elliott simply did not
relate one way or the other whether Applicant had been Mirandized at that
point, focusing his remarks instead on whether Applicant was in custody. See
note 12, ante; note 14, post.
SALINAS – 21
From this, it seems to us that it was not at all clear to McWilliams that
Doyle would even apply to the facts of Applicant’s case even if he had
been Mirandized prior to refusing to answer the pertinent question⸻if
it was in the course of a statement following a waiver of those rights. In
any event, given the ambiguity of the evidence with respect to when
Applicant had been placed in custody and Mirandized, McWilliams
acknowledged on cross-examination by the State that he had pursued “a
broad strategy . . . to try and encompass any of those potential events[,]”
so that “whether it is pre-custody, pre-Miranda or post-Miranda, it’s
inadmissible.”
With respect to Applicant’s complaint that he should also have
challenged the admission of Applicant’s entire statement under Article
38.22(3)(a)(1) (providing that oral and sign language statements must
be recorded in some fashion), McWilliams admitted that if Applicant
was in custody at the time police questioned him, “then [Article] 38.22
would apply to it.” His memory of the second trial was that Elliott had
testified that “most of the statement had all occurred prior to being
[M]irandized.” 14 Asked “what was the strategy for not objecting to
that[,]” he answered:
We talked about this a million times. And why we didn’t
want -- why we didn’t pursue a motion to suppress on that,
I do not recall. But we were -- in my mind there would have
been some reason for it because this was such a focus on
what we were doing. * * * I just don’t recall what it was
right now.
14As noted above, however, Elliott actually testified about Applicant’s
statement at the second trial without ever mentioning whether he had been
Mirandized. See notes 12 & 13, ante.
SALINAS – 22
He added that allowing at least parts of Applicant’s statement to come
into evidence had contributed to a strategy of showing (along with
evidence showing that he had readily turned over the shotgun) that
Applicant had cooperated with the police investigation: “I felt like it was
a sign of his being cooperative and honest with the police.” He could not
remember whether he had tried to keep the statement out at the first
trial. 15 When the State asked him again on cross-examination why he
had not objected under Article 38.22 at the second trial, he repeated that
he could not recall because “[i]t’s just been too long and it was two
trials.” 16
Parnham’s memory was equally unavailing. Like McWilliams, he
testified that they had received a copy of the offense report. He had “no
independent recollection” why they had not filed a motion to suppress
Applicant’s oral statement, though he felt sure they had had “a purpose
of which I do not recollect at this time.” He did not know why
15Of course, the record of the first trial reveals that he did try to keep
the statement out at the first trial, invoking Article 38.22, but then he was
ruled to have opened to door to its admission anyway, however inadvertently.
Despite the passage of time since Applicant’s second trial, there is no
16
laches issue in this case. The Supreme Court’s opinion following Applicant’s
second trial came out in June of 2013, and Applicant filed his writ application
in May of 2014, with an amended application in June of 2017. See Ex parte
Perez, 398 S.W.3d 206, 216 & n.12 (Tex. Crim. App. 2013) (“[W]e recognize that
delays of more than five years may generally be considered unreasonable in
the absence of any justification for the delay. * * * [W]e do not foresee that
the doctrine of laches will ordinarily apply to any application filed within five
years after the exhaustion of direct appeals.”). Even so, the imperfect memory
of Applicant’s trial counsel is not hard to understand after the passage of ten
years. That being said, we do not ultimately predicate our denial of relief on
Applicant’s various claims of ineffective counsel to any extent on his trial
counsels’ failing memories.
SALINAS – 23
McWilliams had not raised a Doyle objection.
F. The Convicting Court’s Recommendations
The parties prepared competing proposed findings of fact and
conclusions of law, and they argued their respective positions to the
convicting court on January 8, 2020. After hearing the arguments, the
convicting court orally announced on the record that it found Applicant
to have been in custody when the oral statement (including his refusal
to answer the question about the forensic examination of the shotgun)
was made, since Applicant signed a waiver form, a copy of which was
admitted at the writ hearing, captioned “STATEMENT OF PERSON IN
CUSTODY.” On that basis, the convicting court orally announced that
it was finding trial counsel ineffective for failing to object based upon
Article 38.22. Without further elaboration, the convicting court then
expressly adopted Applicant’s entire proposed findings and conclusions,
including a conclusion that trial counsel should have objected based on
Doyle, as well as four other ineffective assistance of counsel claims.
In its written findings and conclusions, drafted by Applicant’s
habeas counsel, the convicting court found that Applicant’s silence had
occurred after he was in custody and after he was Mirandized, and it
concluded that there was “no reasonable defense strategy” that would
justify “counsels’ failure to object to the admission of [Applicant’s]
custodial interrogation which included his silence.” Many of the
convicting court’s findings of fact derive from the offense report. With
respect to the chronology of events surrounding the statement, the
convicting court found:
The police report is clear: the police only asked [Applicant]
about the shotgun comparison results after he was
SALINAS – 24
transported to the police station, placed in an interview
room, read his Miranda warnings twice, and presented
with and asked to sign a “statement of person in custody”
form.
Thus, the convicting court adopted Applicant’s position that his oral
statement occurred while he was in custody and post-Miranda.
Regarding Applicant’s first trial, the convicting court found that
McWilliams had reached an agreement with the first prosecutor that
Applicant’s statement was custodial, and that it had only been admitted
when McWilliams opened the door; and that, otherwise, McWilliams had
sought to exclude the statement in its entirety under Article 38.22. The
convicting court found that, at the second trial, a different prosecutor
attempted to change the evidentiary picture by suggesting that most of
the oral statement (including Applicant’s silence) had occurred at his
home, not the police station. However, consistent with the police report,
Elliott instead testified at the second trial that the questioning had
occurred at the station⸻although he maintained that Applicant was not
yet in custody at that time. 17
The convicting court found that Applicant’s trial counsel failed to
17 Citing to the wrong page of the writ hearing, the convicting court also
found that, “[a]t the second trial, there was no question that Sgt. Elliott’s
testimony was that the silence occurred post-Miranda.” But this is inaccurate.
It is arguable that McWilliams acknowledged during his testimony at the writ
hearing that Elliott claimed during the second trial that Applicant did not give
the oral statement until after he was Mirandized. But, as we have already
noted, see notes 12, 13 & 14, ante, the record of the second trial refutes this.
Elliott simply never said whether Applicant had been Mirandized or not, much
less when he was Mirandized. Our rejection of this finding of fact has no
bearing on our ultimate resolution of these claims.
SALINAS – 25
ask for a hearing outside the jury’s presence on the issue of custody, or
to object to the statement on either Doyle–due process or Article 38.22
grounds; nor did they “use[] the offense report, the Statement of Person
in Custody form, or prior testimony to prove that [Applicant] had been
read his Miranda warnings and was in custody prior to remaining
silent.” Finally, the convicting court found that “the prosecution’s more
detailed and effective use of [Applicant’s] silence was the main
difference between the first trial, which ended in a mistrial, and the
second trial, which resulted in a finding of guilt.” 18 It concluded that,
“had the defense objected on [d]ue [p]rocess or [A]rticle 38.22 grounds,
[Applicant’s] silence would not have been admissible at his [second]
trial.” And “in light of the police report, it was unreasonable not to argue
that the silence was inadmissible pursuant to the Due Process Clause
and [A]rticle 38.22.” In short, the convicting court concluded, “no
reasonable trial strategy” was offered to excuse the failure to raise
objections to (1) the admission of Applicant’s silence, under Doyle, or (2)
to admission of the entire oral statement, under Article 38.22.
Although this Court is the “ultimate” factfinder in post-conviction
habeas corpus proceedings under Article 11.07, “in most circumstances,
we will defer to and accept a trial judge’s findings of fact and conclusions
18The writ hearing judge (different from the trial court judge at both
the first and second trials) characterized the prosecutor’s allusion to
Applicant’s silence during the State’s summation at the first trial as having
been made “briefly” and “in passing.” We would not have characterized the
prosecutor’s use of that silence at the first trial as “brief” and “in passing” as
the convicting court recommends. But given our ultimate disposition of
Applicant’s claims, our disagreement with the writ hearing judge on this fact
question is ultimately immaterial.
SALINAS – 26
of law when they are supported by the record.” Ex parte Reed, 271
S.W.3d 698, 727 (Tex. Crim. App. 2008). When recommended findings
and conclusions are not supported by the record, however, “we may
exercise our authority to make contrary or alternative findings and
conclusions.” Id. In this case, even accepting the convicting court’s
recommended findings of fact as (for the most part) supported by the
record, 19 we conclude that the law does not ultimately support granting
relief based upon those facts, and we will therefore deny relief.
II. THE STANDARD OF REVIEW: STRICKLAND
The burden is on Applicant to establish ineffective assistance of
his trial counsel by a preponderance of the evidence. Ex parte Martinez,
330 S.W.3d 891, 901 (Tex. Crim. App. 2011). Such a claim has two
components: (1) deficient performance, and (2) prejudice. Strickland,
466 U.S. at 687. Counsel performs deficiently if he has “made errors so
serious” that it cannot be said he functioned as the “counsel” guaranteed
by the Sixth Amendment. Id. It is presumed that counsel rendered
adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. Id. at 690. There are countless ways
to provide effective assistance in any given case, and counsels’
performance must be evaluated “as of the time of [their] conduct[,]” not
through “the distorting effects of hindsight.” Id. at 689–90.
Finally, and most critically to this case, we do not ordinarily
declare counsel to have performed deficiently for failing to invoke
unsettled legal principles. See, e.g., Ex parte Bahena, 195 S.W.3d 704,
707 (Tex. Crim. App. 2006) (counsel was not ineffective for failing to act
19 But see notes 17 & 18, ante.
SALINAS – 27
on the basis of “law that was unsettled at the time and is unsettled to
this day”); Ex parte Chandler, 182 S.W.3d 350, 358 (Tex. Crim. App.
2005) (trial counsel will not be liable for an error in judgment on an
unsettled proposition of law); Ex parte Welch, 981 S.W.2d 183, 184 (Tex.
Crim. App. 1998) (“[W]e will not find counsel ineffective where the
claimed error is based upon unsettled law.”). To base an ineffective
assistance of counsel claim on law that is unsettled as of the time of the
attorney’s performance would indulge in the kind of retrospective
evaluation that Strickland forbids. Vaughn v. State, 931 S.W.2d 564, 567
(Tex. Crim. App. 1996)(citing Strickland, 466 U.S. at 690).
If counsels’ performance was indeed deficient, even under this
fairly forgiving standard, their deficient performance is prejudicial only
if those errors were so serious as to deprive the defendant of a fair trial,
that is, a trial whose result is reliable. Strickland, 466 U.S. at 687.
Applicant must show that, but for counsels’ deficient performance, there
is a reasonable probability that the result of his trial would have been
different, a reasonable probability being one sufficient to undermine
confidence in the outcome. Id. at 694.
Both showings (deficient performance and prejudice) are
required, and the failure to make a showing as to either component will
obviate a reviewing court’s need to address the other. Id. at 697. Indeed,
“[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.” Id.In this case, we conclude that, for the following reasons, trial
counsel did not perform deficiently in failing to challenge the
admissibility of Applicant’s silence under either Doyle or Article 38.22.
SALINAS – 28
(See Parts III & IV, post.) Applying those legal principles to the facts of
Applicant’s case as developed in these post-conviction proceedings, it is
not at all clear that Applicant could have prevailed⸻any more than he
was ultimately able to prevail on the Fifth Amendment right-to-silence
claim that he actually made and pursued all the way to the United
States Supreme Court. Having determined that counsel did not perform
deficiently in those respects, we also conclude that none of the remaining
allegations of deficient performance, even when cumulated, shake our
confidence in the outcome; that is, they do not raise a reasonable
probability that, had counsel not committed those (presumably) serious
errors, the result would have been different. (See Part V, post.)
III. DOYLE ERROR
In Doyle, the Supreme Court held that a state may not induce a
defendant to stand mute in the face of police questioning by cautioning
him of his right to silence and then use his invocation of that right
against him to impeach his trial testimony. Doyle, 426 U.S. at 618; see
also Fletcher v. Weir, 455 U.S. 603, 606 (1982) (“[W]e have consistently
explained Doyle as a case where the government had induced silence by
implicitly assuring the defendant that his silence would not be used
against him.”); c.f., Jenkins v. Anderson, 447 U.S. 231, 240 (1980)
(holding that silence before arrest and absent Miranda warnings could
be used for impeachment purposes, notwithstanding Doyle). “In such
circumstances,” the Supreme Court explained, “it would be
fundamentally unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.” Doyle, 426 U.S. at 618. Nor, the Court
SALINAS – 29
subsequently held, may a state put such evidence to substantive use by
admitting a defendant’s Miranda-induced silence against him as
evidence to refute his claim of insanity. See Wainwright v. Greenfield,
474 U.S. 284, 295 (1986) (“What is impermissible is the evidentiary use
[including to prove sanity] of an individual’s exercise of his
constitutional rights after the State’s assurance that the invocation of
those rights will not be penalized.”).
The difference between the facts of Doyle and the facts of this
case, as trial-counsel McWilliams surmised, is that Doyle actually did
invoke his right to silence after he was Mirandized, by essentially
remaining wholly silent after the warnings were administered. 20
Applicant, by contrast, affirmatively acknowledged and waived his right
to silence and commenced to answer questions before being confronted
with the “shotgun comparison” inquiry. Thus, the facts of this case raise
an issue of whether a suspect in Applicant’s shoes, choosing silence only
selectively after having seemingly waived that constitutional right, may
still invoke the due process protections of Doyle. The so-called “selective
silence” cases have engendered disagreement among the various
jurisdictions that have addressed the issue. See Friend v. State, 473
S.W.3d 470, 480 (Tex. App.⸻Houston [1st Dist.] 2015, pet. ref’d)
(cataloging some of those conflicting cases while avoiding the issue
because Friend had actually spoken, and it was his words in actually
20 Doyle simply asked his interrogators, “What’s this all about?” He did
not otherwise respond to their questions. Doyle, 426 U.S. at 614 n.5. See
Anderson v. Charles, 447 U.S. 404, 407 (1980) (describing Doyle as involving
“two defendants who made no post[-]arrest statements about their
involvement in the crime”). Doyle certainly did not expressly waive his right to
silence, as Applicant here did.
SALINAS – 30
invoking his right to silence that were used against him). Neither the
United States Supreme Court nor this Court has yet tackled the issue.
In Anderson v. Charles, 447 U.S. 404 (1980), the defendant was
Mirandized and then chose to speak to the police. His statement was
then used to impeach his trial testimony. The Supreme Court explained:
Doyle does not apply to cross-examination that merely
inquires into prior inconsistent statements. Such
questioning makes no unfair use of silence because a
defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent. As to the
subject matter of his statements, the defendant has not
remained silent at all.
Id. at 408.
But suppose a Mirandized defendant at first chooses to speak to
the police, in apparent derogation of his right to silence, but then refuses
to answer certain select questions, whether or not on the express ground
that his answers might incriminate him? Has such a defendant been
unfairly induced by Miranda warnings he has effectively waived into
remaining silent on the promise that his silence will not be used against
him? This question had not been definitively decided as of the time of
Applicant’s second trial⸻nor indeed to this day.
The cases and commentators go both ways. Many if not most state
courts to have addressed the question have held that a defendant who
has waived his Miranda rights may not selectively decline to answer
particular questions and still resort to the protection of Doyle⸻at least
absent an express or apparent re-invocation of his right to silence. E.g.,
Valle v. State, 474 So.2d 796, 801 (Fla. 1985) (a defendant who “freely
and voluntarily conversed with police” after receiving Miranda
SALINAS – 31
warnings could not invoke Doyle); Thomas v. State, 726 So.2d 357, 358
(Fla. Dist. Ct. App. 1999) (following Valle); State v. Talton, 197 Conn.
280, 295, 497 A.2d 35, 44 (1985) (refusing to apply Doyle when the
defendant started out talking but “selectively” refused to answer one
question, because “[o]nce an arrestee has waived his right to remain
silent, the Doyle rationale is not operative because the arrestee has not
remained silent”); State v. Torres, 85 Conn. App. 303, 316, 858 A.2d 776,
785 (2004) (following Talton); State v. Smart, 756 S.W.2d 578, 580–81
(Mo. Ct. App. 1988) (a defendant who waived her Miranda rights but
then refused to answer some questions may not rely on Doyle, and the
option to re-invoke the right to silence “is not available to avoid a single
offensive question, but to cease all questioning, and the suspect is under
an obligation to communicate his decision in an intelligible fashion”);
People v. McReavy, 436 Mich. 197, 222, 462 N.W.2d 1, 12 (1990) (a
defendant who waived his Miranda rights may not thereafter selectively
refuse to answer questions and still invoke Doyle’s rationale); People v.
Bowman, 202 Cal.App.4th 353, 365, 136 Cal.Rptr.3d 119, 127 (2011)
(“We are persuaded in this case that the Doyle rule did not prohibit the
prosecution’s use of Bowman’s selective silence as adoptive
admissions.”).
But a few states have held⸻albeit uncritically⸻that a waiver of
Miranda rights followed by “selective silence” will not prevent a
defendant from successfully invoking Doyle’s due process protections.
See Coleman v. State, 434 Md. 320, 338, 75 A.3d 916, 926 (2013) (holding
trial counsel ineffective for failing to raise Doyle error where, after
receiving Miranda warnings, the defendant answered some questions
SALINAS – 32
but not others⸻but holding so without reference to the “selective
silence” line of cases); Bartley v. Commonwealth, 445 S.W.3d 1, 9–10
(Ky. 2014) (concluding that evidence of the defendant’s silence was
inadmissible under Doyle when she expressly invoked her right to
silence when Mirandized but then answered some questions posed by
police interrogators on another matter while persistently refusing to
answer questions on the topic about which she had expressed her desire
to remain silent).
The federal circuits have also gone both ways. Compare United
States v. Goldman, 563 F.2d 501, 503 (1st Cir. 1977) (a defendant who
waives his Miranda rights and tells investigators an exculpatory story
cannot refuse to answer certain questions and expect his silence to be
insulated: he “cannot have it both ways”); United States v. Pitre, 960
F.2d 1112, 1125–26 (2nd Cir. 1992) (referencing Doyle, but holding that
a defendant who waived Miranda rights and made statements could not
thereafter refuse to answer some questions without re-invoking his right
to silence); United States v. Burns, 276 F.3d 439, 441–42 (8th Cir. 2002)
(after waiver of Miranda rights, the defendant could not simply refuse
to answer certain questions and then rely on Doyle’s protection, absent
a clear re-invocation of his right to silence); McBride v. Superintendent,
SCI Houtzdale, 687 F.3d 92, 104–05 (3rd Cir. 2012) (noting the split in
the federal circuits regarding application of Doyle to “selective silence,”
and holding that there is no “clearly established Federal law” on the
issue for purposes of the Antiterrorism and Effective Death Penalty Act
(AEDPA)), with United States v. Williams, 665 F.2d 107, 109–10 (6th
Cir. 1981) (applying Doyle to find “plain error” in a “selective silence”
SALINAS – 33
scenario, but without any discussion of the fact that the defendant had
expressed a “willingness to talk” after receiving Miranda warnings and
then “answered some questions”); United States v. Canterbury, 985 F.2d
483, 486 (10th Cir. 1993) (“This court has recognized that when a
defendant [who has received Miranda warnings] answers some
questions and refuses to answer others, or in other words is ‘partially
silent,’ this partial silence does not preclude him from claiming a
violation of his due process rights under Doyle.”); United States v. Scott,
47 F.3d 904, 907 (7th Cir. 1995) (“[A] suspect may speak to the agents,
reassert his right to remain silent or refuse to answer certain questions,
and still be confident that Doyle will prevent the prosecution from using
his silence against him.”).
Perhaps the most comprehensive discussion of “selective silence”
in a case that applied Doyle to grant relief is the Ninth Circuit opinion
in Hurd v. Terhune, 619 F.3d 1080 (2010)⸻another AEDPA opinion that
issued more than a year after Applicant’s second trial. After he was
Mirandized, Hurd expressed a willingness to speak with investigators,
but during the interview he repeatedly refused to “reenact” the offense
or submit to a polygraph. The Ninth Circuit disagreed that an apparent
waiver of Miranda rights meant that a defendant could not thereafter
rely upon Miranda’s implicit promise that silence could not be used
against him without his first at least re-invoking that right. Id. at 1088.
“That silence may not require police to end their interrogation,” the
court observed, “but it also does not allow prosecutors to use silence as
affirmative evidence of guilt at trial.” Id. The court concluded that the
state court judgment to the contrary was not simply incorrect, but an
SALINAS – 34
unreasonable application of the applicable federal law. Id. This
conclusion was not subjected to certiorari review, however, in the United
States Supreme Court. As one commentator has since observed:
Ultimately, the Hurd case demonstrates the extensive split
between the circuit courts on the rights of a suspect
regarding his choice to answer questions or not during
Post-Miranda custodial interrogation. * * * With such a
wide divergence among the circuit courts, the Supreme
Court now has the responsibility to reconcile this unsettled
doctrine.
Evelyn A. French, Note, When Silence Ought to be Golden: Why the
Supreme Court Should Uphold the Selective Silence Doctrine in the Wake
of Salinas v. Texas, 48 GA. L. REV. 623, 645 (Winter 2014).
Had Applicant’s trial counsel invoked Doyle on the facts of this
case, they would have been no more assured of success in keeping out
the evidence of Applicant’s refusal to answer the “shotgun comparison”
question than they could have been of obtaining relief on the Fifth
Amendment-based objection that they actually did make at trial. 21 Even
if Hurd represents a trend in Applicant’s favor, the law remains
ultimately unsettled. Under these circumstances, we cannot declare
that counsel’s failure in 2009 to invoke Doyle was so professionally
derelict as to fall outside “the wide range of reasonable professional
assistance[.]” Strickland, 466 U.S. at 689. We cannot conclude that
21 McWilliams’s testimony at the writ hearing, as quoted above, ante at
20, suggests that, notwithstanding his difficulty remembering how he had
formulated his strategy for dealing with Applicant’s silence, he may have had
some notion prior to Applicant’s second trial that the law was unsettled with
respect to “selective silence” scenarios such as Applicant’s.
SALINAS – 35
Applicant’s trial counsel performed deficiently in this respect. We turn
next to Applicant’s Article 38.22-based claim.
IV. ARTICLE 38.22 ERROR
At least judging by his oral statement at the writ hearing, the
convicting court judge seemed most convinced that Applicant’s trial
counsel performed deficiently in failing to re-assert an Article 38.22,
Section 3, objection to Applicant’s entire oral statement⸻including his
refusal to answer the “one” question⸻at the second trial. And this does
in fact seem to be a closer question. Counsel could have sought a pretrial
hearing at which to develop a record outside the presence of the jury in
order to more precisely ascertain whether Wendel and Elliott (and
perhaps Allen) would in fact adhere to the chronology of events
memorialized in their offense report. 22 There was a substantial
argument to be made that Applicant’s statement was, in its entirety,
objectionable under the statute as an unrecorded custodial statement.
Nevertheless, it is far from clear that this argument would have
prevailed had Applicant’s trial counsel asserted it⸻at least not as it
pertained to Applicant’s silence. This Court has yet to speak to the
22 In his affidavit in response to Applicant’s writ application,
McWilliams indicated that, due to the passage of time and “despite
considerable reflection on the matter,” he “simply cannot remember why we
chose not to file a motion to suppress on this issue, nor did [he] request a
Jackson v. Denno hearing outside the presence of the jury.” Jackson v. Denno,
373 U.S. 368 (1964), of course, held that due process requires a factfinder that
is independent of the jury which determines guilt or innocence to ascertain
whether police interrogators extracted an involuntary confession from the
accused. We see no reason Applicant should not likewise have been entitled to
a different factfinder to determine, outside the presence of the jury hearing
evidence as to his guilt or innocence, whether his statement to the police was
admissible as a matter of state law, had he requested that.
SALINAS – 36
question of whether the refusal to answer a question during a police
interrogation that is not electronically recorded actually counts as part
of the “oral statement” that Article 38.22, Section 3, contemplates. At
least one court of appeals⸻the Amarillo Court of Appeals⸻has held
that it does not, and its opinion was published a decade before
Applicant’s second trial. See Beck v. State, 976 S.W.2d 265, 267 (Tex.
App.⸻Amarillo 1998, pet. ref’d) (“[T]he officer’s description of what
appellant did not say was not a statement as contemplated under article
38.22, section 3 of the Texas Code of Criminal Procedure. So, trial
counsel was not obligated to object to those comments on the basis of
article 38.22, section 3.”). Nothing in the record shows that Applicant’s
trial counsel was unaware of this intermediate-court authority. Counsel
also testified at the writ hearing that he thought it actually benefited
Applicant to admit at least part of the statement.
It was Applicant’s burden to establish by a preponderance of the
evidence that his counsel were ineffective. But these facts suggest at
least the possibility that counsels’ failure to object to the statement on
the ground of Article 38.22, Section 3, represented a sound trial strategy.
Applicant has not ruled out this possibility.
On the other hand, the Texarkana Court of Appeals seems to have
held, prior to Applicant’s second trial, that the refusal to answer certain
questions during unrecorded police questioning does count as part of an
oral statement covered by Article 38.22, Section 3. Pina v. State, 38
S.W.3d 730, 735 (Tex. App.⸻Texarkana 2001, pet. ref’d). That court of
appeals believed this to be the case because it treated the refusal to
answer certain questions as “nonverbal conduct intended as an
SALINAS – 37
assertion,” thus fitting the definition of “statement” in Black’s Law
Dictionary. Id. (citing BLACK’S LAW DICTIONARY 1416 (7th ed. 1999)).
But, of course, if the Texarkana court is correct that such silence
counts as an “assertion of fact,” then Applicant’s refusal to answer the
“shotgun comparison” question may well have also become admissible
under Article 38.22, Section 3(c). Section 3(c) provides that Section 3(a)’s
exclusion from evidence of a non-recorded oral statement “shall not
apply to any statement which contains assertions of facts or
circumstances that are found to be true and conduce to establish the
guilt of the accused, such as the finding of . . . the instrument with which
he states the offense was committed.” TEX. CODE CRIM. PROC. article
38.22(3)(c). Applicant’s trial counsel may have believed the trial court
would regard Applicant’s silence as an assertion that the shotgun
comparison would reap a result unfavorable to him, which forensic
testing the next day actually confirmed. In that case, he might
reasonably have expected for the State to argue, and the trial court to
conclude, that Applicant’s silence was admissible under Article 38.22,
Section 3(c), and that on that basis the trial court would overrule any
objection under Article 38.22, Section (3)(a).
This Court refused discretionary review in both Beck and Pina,
thus leaving the question whether silence should be regarded as part of
an “oral statement” for purposes of Article 38.22, Section 3(a), in an
unsettled state. That was the state of the law at the time of Applicant’s
second trial in 2009, and it remains the state of the law to this day.
Under these circumstances, we cannot fault Applicant’s trial counsel for
opting to make an all-encompassing objection based on Applicant’s
SALINAS – 38
constitutional right to silence. That this strategy did not ultimately
prevail does not render trial counsels’ performance constitutionally
deficient. See Martin v. State, 623 S.W.2d 391, 395 (Tex. Crim. App.
1981) (“Ineffectiveness is not shown when the tactic is unsuccessful.”).
V. MISCELLANEOUS CLAIMS OF INEFFECTIVENESS
Applicant raised four other claims of ineffectiveness of counsel.
The convicting court concluded that trial counsel performed deficiently
with respect to each of these claims as well, and concluded that each
instance of deficient performance, by itself, was sufficient to undermine
confidence in the outcome of Applicant’s second trial. It also concluded
that, “even if no single error gave rise to ineffective assistance, the
cumulative effect of defense counsel’s deficiency gave rise to prejudice.”
Having concluded that trial counsel did not perform deficiently with
respect to Applicant’s first two claims, we do not, of course, include those
claims within any “cumulative” prejudice we might find. And even
assuming that trial counsel performed deficiently in every other respect
that the convicting court recommends we find, we do not believe even
the cumulative effect of those four claims rises to the level of Strickland’s
outcome-determinative prejudice standard. Thus, we reject Applicant’s
other claims under Strickland’s prejudice prong.
A. The Claims
Ground Three: At the conclusion of Applicant’s police
interrogation, Sergeant Elliott was asked why he had taken Applicant
into custody. Elliott responded, without any objection by the defense,
that “I had the opinion that he was deceptive and lying to me and I
wanted to hold him.” Applicant now claims that trial counsel should
SALINAS – 39
have objected that Elliott’s testimony constituted objectionable expert
opinion evidence as to his credibility. The convicting court recommends
that we sustain this claim on the basis of cases involving the
inadmissibility of expert testimony with respect to the truthfulness of a
witness, 23 without explaining the applicability of those cases to a police
officer’s explanation of why his investigation took a particular turn.
Ground Four: Applicant argues that trial counsel was deficient
in failing to present readily available alibi testimony showing that
Applicant was at home with his girlfriend at the time the Garza brothers
were shot. This testimony, he contends, was available from both his
girlfriend and Applicant’s sister. Trial counsel McWilliams testified at
the writ hearing that trial counsel had not deemed this evidence credible
(and they even worried somewhat about the risk of suborning perjury).
Ground Five: Applicant argues his trial counsel should have
objected to testimony that Applicant was using crack cocaine “in that
time period” surrounding the murders. He contends that this was bad-
act evidence that was inadmissible. The State had not included this
extraneous misconduct in its notice to the defense under Rule 404(b) of
the Rules of Evidence. TEX. R. EVID. 404(b). Nor did trial counsel seek a
limiting instruction to corral the jury’s consideration of this evidence
once it was admitted. Trial counsel explained in their affidavits, and at
23 Applicant did not take the stand to testify at either his first or second
trial, so his truthfulness as a witness was never an issue. Trial counsel
McWilliams testified at the writ hearing that he had made a tactical decision
to point out in cross-examination that Elliott had never previously said
anything about Applicant’s deceptiveness, either in the offense report or the
first trial.
SALINAS – 40
the writ hearing, that evidence of Applicant’s use of crack cocaine during
that period was not incompatible with their defensive strategy, 24 and
that the failure to request a limiting instruction had been a tactical
decision.
Ground Six: Applicant also contends that trial counsel should
have impeached several important State’s witnesses. First, he argues,
they should have impeached Martha Trevino’s (more about her later)
testimony, which did not wholly conform with the statement she had
given to the police. 25 Second, he argues, they should have impeached
Damien Cuellar’s testimony that Applicant was using crack cocaine
around the time of the murders and could become paranoid when using
crack. Evidently, Cuellar had never made such assertions before, either
in his statements to the police or in his first-trial testimony. Applicant
suggests that impeachment of Cuellar could have provided a potential
explanation for an otherwise apparently motiveless crime. Third, he
argues that trial counsel failed to impeach Officer Elliott with testimony
from Applicant’s first trial that Applicant had in fact not been free to
24 McWilliams testified at the writ hearing that “”[i]t fit with our
narrative that there were drugs and drug usage and potentially drug sales out
of the Garza house.” Admitting that he had tried to keep the evidence out at
the first trial, McWilliams explained that there had been “an evolution of the
defensive strategy” and that “we did make some adjustments to that.”
25Trevino all but admitted to the contradiction at trial, admitting that
she “guessed” she had made the contradictory statement to the police.
McWilliams maintained at the writ hearing that “it was obvious what my point
was about and so I just elected to move on from it.” He thought that “the jury
already understood that that’s what -- that’s what she had said previously
based on my questions.” He did not want the jury thinking he was “making a
mountain out of a molehill about this thing and they got the point.”
SALINAS – 41
leave once he arrived at the police station. 26
B. The Bigger Evidentiary Picture
We do not believe there is a reasonable probability that, even
collectively, these alleged deficiencies⸻even if indeed they were
deficiencies⸻could have affected the outcome of the trial. Factoring
Applicant’s failure to answer the “shotgun comparison” question into the
equation, the inculpatory evidence in this case, though circumstantial,
was nearly overwhelming. The failure of trial counsel to keep out
Elliott’s opinion testimony respecting Applicant’s credibility, to present
apparently questionable alibi testimony, to object to or corral the
admissibility of extraneous misconduct testimony, or to impeach certain
witnesses with relatively minor discrepancies would not likely have
impacted the jury’s verdict of guilty, given the evidence marshaled
against Applicant.
Martha Trevino was another resident of Hector Garza’s small
apartment complex, and after hearing the shotgun blasts, she observed
the apparent shooter from her apartment window as he ran from the
premises and got into the passenger side of a black or dark-colored Trans
Am or Camaro. She did not see the shooter’s face, so it is not a surprise
that she could not later identify Applicant in a line-up. But a few days
after the shooting, Applicant confessed to Cuellar, who was a mutual
26 Applicant also claims that trial counsel should have impeached
Elliott’s testimony that he was a participant in Applicant’s interrogation. He
maintains that the offense report indicated that Elliott was not present, if only
by failing to note his presence. See notes 6 & 10, ante. But Elliott has
consistently testified that he was present, even if the offense report does not
explicitly place him there, and trial counsel testified at the writ hearing that
Applicant never told him that Elliott had not been in the interrogation room.
The offense report does not positively refute Elliott’s claim.
SALINAS – 42
friend of both Applicant and the Garza brothers, that Applicant had
been the one to kill them. Cuellar claimed that Applicant had told him
that “either they’re going to get me or I have to get them[.]” Cuellar did
not admit to the police right away that Applicant had confessed to him,
waiting until the third time he spoke to them, and certain aspects of
what he claims Applicant told him about how the shooting occurred do
not comport with the crime scene and other witness testimony. Nor did
his description of the shotgun he knew Applicant owned jibe with the
shotgun that police recovered from Applicant’s home, which later proved
to be the murder weapon. Moreover, Cuellar was apparently an
idiosyncratic witness, telling police that he finally decided to tell them
about Applicant’s confession only after the Garza brothers appeared to
him in a dream. 27
Nevertheless, according to firearms examiner Kim Downs of the
Houston Police Department Crime Lab, when the police did retrieve the
shotgun from Applicant’s home, forensic testing showed that each of the
six shells recovered from the murder scene “were fired” from that
shotgun “to a reasonable certainty”⸻indeed, she confirmed that the
spent shells were a “unique match to that gun.” Meanwhile, Applicant
refused to answer the “one” question during his oral statement that
would have indicated what he believed that forensic testing would later
reveal. And, when the police alerted Applicant the next day to the fact
that the forensic testing demonstrated the shotgun was in fact the
27 During his summation at the guilt stage of the second trial, even
while arguing Cuellar’s reliability as a witness, the prosecutor acknowledged
that “he’s a goofy guy. Kind of weird, but he was forthright.”
SALINAS – 43
murder weapon, he absconded and was not arrested for fifteen years, all
while living under an alias, thereby manifesting perhaps an even
greater consciousness of guilt than his failure to answer the “one”
shotgun comparison question during interrogation.
The defensive strategy was to impugn the police investigation and
to suggest that Hector Garza had fallen into disfavor with a local crack
dealer who drove a dark-colored Trans Am, which suggested an
alternative suspect who might have had a motive to kill the Garzas. But
this defensive theory could not explain how the murder weapon came to
be found in Applicant’s home. The defense made a concerted effort to call
the reliability of the State’s forensic evidence into question, by cross-
examination of the testifying firearms examiner, and by calling a
defense expert who called the methodology of the State’s expert into
question in some respects. But that effort seems to have been largely
ineffectual, even on a cold record. 28 Applicant’s trial counsel made only
glancing reference to it at the very end of their final guilt-phase
argument.
C. Prejudice?
None of the ways in which Applicant alleges that his counsel
performed deficiently in his last four claims would have made a serious
28 In fact, Kim Downs, the firearms examiner who testified at both of
Applicant’s trials, was not the same firearms examiner who had conducted the
original examination in 1993. However, she had independently re-tested the
evidence prior to Applicant’s first trial and confirmed the original firearms
examiner’s conclusion that the shotgun recovered from the home at which
Applicant was living with his parents and sister was “a match” to the shotgun
that fired the spent shell casings recovered at the murder scene. Moreover, at
Applicant’s second trial, the State also produced the original firearms
examiner, now retired, who also confirmed his original findings.
SALINAS – 44
dent in the State’s evidence.
First--Elliott’s Testimony: It would already have been
apparent to the jury that the police had detained Applicant after his
interrogation because the officers did not believe his denials. Preventing
Elliott from expressly saying so at trial could not have affected the jury’s
deliberations in any substantive way.
Second--Alibi Testimony: To present alibi testimony from
obviously interested witnesses could not have significantly undermined
the State’s compelling evidence that the forensically determined murder
weapon was in fact recovered from Applicant.
Third--Extraneous Misconduct: The evidence already showed
that Applicant had been indulging in crack cocaine at the Garzas’
apartment the night before the murders. That Applicant was more
generally indulging in that habit “in that time period” can only have
incrementally impacted the jury’s deliberations, and it was not even
wholly incompatible with Applicant’s defensive posture that the Garzas
were actually victims of the broader drug culture rather than of
Applicant’s crack-induced paranoia.
Fourth--Failure to Impeach: Applicant would have had trial
counsel impeach Martha Trevino because she refused during her second-
trial testimony to fully acknowledge a statement that she had made to
police suggesting that the Garzas might be dealing drugs from Hector’s
apartment. This could only have very slightly bolstered Applicant’s
defensive suggestion that the Garzas were the victims of a dispute over
drugs or drug money. Likewise, pointing out that Cuellar had not
previously made assertions about Applicant’s drug use and attendant
SALINAS – 45
paranoia would not have constituted particularly compelling
impeachment evidence; at least not in the same way that a prior
inconsistent statement would have. And finally, failure to impeach
Elliott’s testimony with respect to Applicant’s custodial status could not
have affected any material issue with respect to Applicant’s guilt or
innocence; it was relevant only to the admissibility of his oral statement,
an issue that was not up to the jury to decide. Even collectively, there is
no reasonable probability that these purported deficiencies of counsel
were outcome-determinative.
VI. CONCLUSION
We conclude that Applicant’s first two claims do not demonstrate
deficient performance under Strickland, and that his remaining four
claims do not satisfy Strickland’s prejudice prong because there is no
reasonable probability that they would have altered the outcome of
Applicant’s trial. Accordingly, we deny relief.
DELIVERED: November 16, 2022
PUBLISH