Arthur Lee Myers v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-93-225-CR

ARTHUR LEE MYERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 24,907-CR

O P I N I O N

Arthur Myers appeals his conviction for murder. A jury found Myers guilty and the court assessed punishment at life in prison. In a single point of error Myers contends that the court erred in permitting the State to impeach him on his silence after his arrest. We affirm the conviction.

On December 17, 1992, Byron Smith, his son, Clay Smith, and Russell Keith were riding around in a four-wheel drive vehicle owned by Keith but driven by Byron Smith. They had visited Byron's sister-in-law, who told Keith about some lots for sale in the Bluebonnet subdivision behind her home. They then drove down a county road into the subdivision and past Myers' house to look at the lots and a lake available to property owners in the subdivision for fishing. They were several hundred yards off the county road looking at the lake when Myers drove up behind them in his car. Keith testified that Byron got out to talk with Myers but that they did not get into an argument. Keith also testified that when Byron got back in his vehicle he told them that Myers said they were trespassing. Byron, however, said they were not trespassing because his sister-in-law and brother-in-law owned property. According to Keith, he then saw Myers writing down the license plate number, so he got out and asked Myers if he had everything he needed. Both Keith and Clay testified that there was no confrontation with Myers and that eventually Myers left.

As Byron drove back down the county road to leave the subdivision, however, they approached Myers' car, which was parked in front of the gate to Myers' lot, blocking the road. Byron stopped several feet in front of the car. Myers, who had returned to his house to retrieve a shotgun and was standing on the other side of the gate, aimed at the open driver's-side window and fired. He then jumped the fence, got into his car, and drove away. Keith moved Byron to the passenger side, drove the vehicle to Byron's sister-in-law's house, and called for help. Clay was wounded by several pellets of birdshot, but Byron died of multiple birdshot wounds to the head.

Myers called Cecelia Glenn to testify that he came to her house and told her, "I think that a man got injured." According to Glenn, Myers asked her son to take him to the Hubbard police station, but no one was there. Glenn then accompanied Myers to Clay's aunt's house, where he turned himself in to the police. Glenn also testified that Myers was worried about the man being injured and suffering, but that Myers did not say how the man was injured.

Myers testified that he followed the vehicle down the road to see who they were and what they were doing at the lake. He testified that he told Byron, "Well, if you don't own property here and the people that own them is not with you, you're not supposed to be here." According to Myers, Byron responded, "You son of a bitch; just because you own one little old lot up front you ain't telling me what to do down here." Myers further testified that Keith also got out as he was writing down the license number and said, "Here's the damn number, if you want it." According to Myers, he hollered back, "Yeah, I've already got it," and drove off. He stopped, however, and followed them to see whether "they was going to go somewheres else where he shouldn't be."

Myers also testified that Byron stopped in the middle of the dam and again got out of the vehicle. According to Myers, when he got out, Byron said, "You don't own this dam road." Myers attempted to explain that they were on private property and said that he was going to call the police. He testified that they continued to approach his car, threatening him until he got back in his car and started backing up. According to Myers, he then drove toward two lots he owned beside the dam, walked onto the lots and said, "This is my lots and it's private property." He claimed that when they "started backing up" on his lots, he got back in his car and drove toward his house. On rebuttal, Clay testified that after the initial confrontation with Myers, neither his father nor Keith got out of the vehicle or spoke with Myers again. Keith also testified that after they offered Myers his license plate number they never got out or talked with Myers again.

According to Myers, he parked his car in front of the gate, leaving room for other cars to pass by on the road. Myers remembered entering his house, getting his shotgun, loading it, and returning to the gate as Byron approached, but he said that he could not remember firing it. All he remembered was getting in his car and taking off. Myers went to Cecelia Glenn's house and told her, "I shot a guy. I don't know if I hurt him or what, but let's go call the police." After looking for the police they returned home and could see red lights flashing at Clay's aunt's house. He walked up to a highway patrolman and asked, "Is the guy hurt?" Myers testified that the officer said, "You killed him," and arrested him immediately.

On cross-examination, the prosecutor elicited the following testimony from Myers:

Q. Okay. All of this stuff that you have told about, what went on an what happened and any threats, if there were any, any lapse of memory; this is the first time you've told it, conveniently; haven't you?

A. What are you saying, now?

Q. This is the first time you have told it; you haven't told anybody else?

[Defense Attorney]: I object to any comments on Mr. Myers exercising his right to be silent. I would ask the question be stricken.

THE COURT: I'm not sure; I'm not following you. Restate your question, Mr. Batchelor.

[Prosecutor]: Your Honor, I'm asking if he's ever said this to any other person.

THE COURT: Restate your question again.

Q. Have you ever told any other person, before today, what you told in here?

A. I sure have.

Q. Who?

A. My family.

Myers' attorney never obtained a ruling on his objection and Myers provided a favorable answer by testifying that he had previously told his family about the threats. Because Myers did not press the objection to the point of an adverse ruling, nothing is preserved for review. // Furthermore, neither the prosecutor's question, defense counsel's objection, nor Myers' answer made any reference to his post-arrest silence. //

It is a general rule of evidence that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances to which he would be expected to speak out, may be used to impeach the witness during cross-examination. // Both Glenn and Myers testified that he told her about the shooting. According to Glenn, however, he did not tell her how it happened. Because he was not yet under arrest, and he could be expected to speak out regarding the threats that he later claimed as justification for the shooting, his silence regarding the threats may be used as evidence of prior inconsistent conduct. // Accordingly, we overrule Myers' single point of error.

We affirm the conviction.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 18, 1994

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