Alfonso Sanchez v. The State of Texas--Appeal from 202nd District Court of Bowie County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-06-00223-CR
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ALFONSO SANCHEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 05F0272-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION

During a semi-annual "shakedown" of "every cell on the farm" (1) for contraband, a correctional officer discovered a shank (2) in Alfonso Sanchez's cell. Sanchez was charged with, and a jury convicted him of, possession of a deadly weapon in a penal institution, a third-degree felony. See Tex. Penal Code Ann. 46.10(a)(2), (d) (Vernon 2003). The jury assessed punishment at eight years' confinement, which the judge stacked on Sanchez's prior sentence. See Tex. Code Crim. Proc. Ann. art. 42.08(b) (Vernon 2006) (requiring cumulation of sentence for new offense committed in prison while serving a different prison sentence).

On appeal, Sanchez asserts error in two rulings of the trial court: (1) allowing the State to improperly impeach a defense witness using character evidence and (2) allowing the State to improperly question a witness concerning Sanchez's custodial silence. We affirm the trial court's judgment because Sanchez failed to preserve error on either issue.

To preserve error for appeal, a defendant must (a) object, (b) state the grounds with sufficient specificity, and (c) obtain an adverse ruling. Tex. R. App. P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). The objection must be made at the earliest possible opportunity. Wilson, 71 S.W.3d at 349. An objection is timely when it is made before the evidence is admitted or as soon as the objectionable nature of the evidence became apparent. Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Finally, "the law in Texas requires a party to continue to object each time inadmissible evidence is offered." Id. Two exceptions to the general rule requiring an objection at each offering allow a party "to either (a) obtain a running objection, or (b) request a hearing outside the presence of the jury." Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).

(1) Sanchez Did Not Preserve Any Error Regarding Impeaching a Witness' Character

One of Sanchez's complaints on appeal is that the State improperly inquired into a defense witness' character outside the bounds of Rule 404(a) of the Texas Rules of Evidence by asking about the witness' prison disciplinary record. (3) See Tex. R. Evid. 404.

As his first witness, Sanchez called an inmate named Christopher Woolverton, who was housed in the cell next to Sanchez's on the day of the shakedown. Woolverton's direct examination ended with the assertion that he had told Sanchez the officer's report was a lie. The State began its cross-examination as follows:

Q: Mr. Woolverton, you've got a little bit of a problem with authority, don't you?

A: No sir, I don't.

Q: You don't. But you've been convicted of aggravated assault on a peace officer. Isn't that correct?

A: My car hit his.

Q: Okay. And you've been - - you've lost good time credit on five occasions last year and one occasion this year for threatening an officer. Isn't that correct?

A: Set up.

Q: Oh, those were all set-ups?

A: Yes, sir.

Q: Okay. And you've also threatened other inmates too, haven't you?

A: No, sir.

Q: And you had contraband in your cell?

[Sanchez's Counsel]: Your Honor, I'm going to object. That's just improper impeachment of a - - improper character evidence impeachment.

[State's Counsel]: Your Honor, he has a problem with authority. He's accusing effectively an officer of lying, so I think we're entitled to go into his problems with officers and his problems with the system in general.

THE COURT: Well, his character is in issue in the sense that he's putting his character on the line, I mean, his credibility, so I'm going to allow a little latitude to explore those but let's keep it limited.

[Sanchez's Counsel]: Then, Your Honor, am I to understand my 404a and 405a objection is overruled?

THE COURT: It'll be overruled.

Woolverton never answered the question concerning contraband in his cell, and the State never attempted to further question Woolverton on this subject. The State did, however, repeat the earlier line of questioning, without further objection, of whether Woolverton had "lost good time on many occasions for threatening officers and threatening other inmates," which Woolverton again denied. Sanchez complains on appeal that the State's questions improperly impeached the witness' character. (4) But, in questions leading up to his trial objection, Sanchez allowed the State to question Woolverton, without objection, about (1) whether he had a problem with authority, (2) whether he had been convicted of aggravated assault on a peace officer, (3) whether he had lost good time credit numerous times for threatening an officer, and (4) whether he had threatened inmates. Sanchez objected only after the State's final question in that series, the question regarding Woolverton's possession of contraband. And there was never an answer to the question about contraband. (5)

Sanchez failed to make a timely and specific objection at the earliest possible opportunity, that is, when the State first started questioning Woolverton about his disciplinary record. (6) See, e.g., Ranson v. State, 707 S.W.2d 96, 98-99 (Tex. Crim. App. 1986); Cohran v. State, No. 03-05-00763-CR, 2006 WL 2918560, at *4 (Tex. App.--Austin Oct. 13, 2006, pet. dism'd) (objection late in line of questioning untimely to preserve error relating to entire line). This line of questioning was quite clear, and the nature of each question was immediately apparent when it was asked. Sanchez failed to obtain a running objection, request a hearing outside the presence of the jury, or make a further objection on the next two occasions the State questioned Woolverton on his prison disciplinary record.

This alleged error has not been preserved for our review.

(2) Sanchez Did Not Preserve Any Error Regarding Custodial Silence

Sanchez also asserts that the State improperly commented on Sanchez's custodial silence in asking questions concerning whether an inmate can report contraband without getting in trouble for the contraband. Of course, Sanchez was in custody by virtue of his imprisonment. Sanchez complains of the State's questioning in the following exchange, which occurred during the State's questioning of Office of the Inspector General (OIG) Investigator Jeff Butler:

Q: Is it regular for weapons to be found and no one end up being charged with an offense?

A: Yes.

Q: If an inmate reported to a correctional officer out on the run, hey, there's a weapon in my cell, it's not mine but you need to come get it, or any other contraband for that matter, and they reported that to the guards themselves before it was found, would they end up being charged with a crime?

A: No.

Q: Okay. Have you ever known in the course of your work with the OIG of somebody being charged with a crime when they said, hey, I just found this piece of stuff and reported it to a guard?

A: Not to my knowledge.

[Sanchez's Counsel]: Your Honor, I'm going to object. I believe this is a comment on Mr. Alfonso Sanchez's right to custodial silence under the Fifth Amendment.

[State's Counsel]: Your Honor, I don't believe that's a comment on that at all.

THE COURT: Overruled.

Q: So if someone found something, if an offender just finds something out on the unit and they report it, hey, I found this, they're not necessarily charged with that?

A: No.

 

Sanchez complains on appeal that the State's questions commented on Sanchez's custodial silence, that is, his failure to report the shank before it was discovered by officers. But Sanchez's objection came only after the State had asked the question of Butler twice and he had answered both questions. While the objection would have been timely as to the second question and answer, the first question and answer went without objection.

As with the questions concerning the character of the defense witness, Sanchez failed to make a timely and specific objection at the earliest possible opportunity, that is, as to the State's first question about whether prisoners get in trouble for reporting contraband. See, e.g., Ranson, 707 S.W.2d at 98-99; Cohran, 2006 WL 2918560, at *4. The first question was not at all unclear, and its nature was apparent immediately when it was asked. Sanchez's failure to object to the first question and answer waived any error. (7)

 

Because Sanchez has failed to preserve any error for appeal, we affirm the judgment.

 

Josh R. Morriss, III

Chief Justice

 

Date Submitted: July 27, 2007

Date Decided: September 4, 2007

 

Do Not Publish

1. The prison had a regular general inspection for contraband.

2. "Shank" is prison slang referring to a homemade knife or stabbing device.

3. Although Sanchez complains in his appellate brief under both Rule 404(a) and Rule 405(a), the brief discusses only Rule 404(a). See Tex. R. App. P. 38.1(e), (g), (h). A point of error that is conclusory and cites no authority presents nothing for review. See Garcia v. State, 887 S.W.2d 862, 871 (Tex. Crim. App. 1994). We find the point of error, insofar as it claims error under Rule 405(a), to be inadequately briefed and decline to address its substance. See Tex. R. App. P. 38.1(h); Garcia, 887 S.W.2d at 871.

4. Sanchez's counsel called his objection a "404a and 405a objection." See Tex. R. Evid. 404(a), 405(a). Rule 404(a)(3) would allow evidence of a witness' character only under Rules 607, 608, and 609 of the Texas Rules of Evidence. See Tex. R. Evid. 404(a)(3). And Rule 608(b) forbids impeachment of a witness by inquiry into specific instances of the witness' conduct, except for convictions as set out in Rule 609. See Tex. R. Evid. 608(b).

5. Sanchez does not, in his brief, address any error in the State's unanswered question to Woolverton regarding contraband. We find the point of error, insofar as it claims error under Rule 404(a) from the question regarding contraband, to be inadequately briefed and decline to address its substance. See Tex. R. App. P. 38.1(h); Garcia, 887 S.W.2d at 871.

6. We acknowledge that the State's response to this objection referenced the full line of questioning. Nonetheless, Sanchez did not himself object to the entire line; his objection, by its terms, does not explicitly include any of the earlier questions in its intended scope.

7. We also note that Sanchez's objection to the second question was made solely on the basis of the Fifth Amendment to the United States Constitution. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (Fifth Amendment applies to post-arrest silence after Miranda warnings given, while Article I, Section 10 of Texas Constitution protects post-arrest silence but includes silence before Miranda warnings); see also Miranda v. Arizona, 384 U.S. 436 (1966). Not only is it doubtful that the questions constituted a comment on Sanchez's failure to report the shank in his cell before officers discovered it, but it is doubtful that prosecutorial use of that failure was impermissible under the Fifth Amendment. See Jenkins v. Anderson, 447 U.S. 231 (1980) (no constitutional obstacle to use of prearrest silence for impeachment purposes; "privilege against compulsory self-incrimination is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak." (Stevens, J., concurring)); United States v. Frazier, 408 F.3d 1102, 1110 (8th Cir. 2005).