Juan Reyes Solis v. The State of Texas--Appeal from 262nd District Court of Harris County

Affirmed and Memorandum Opinion filed April 12, 2007

Affirmed and Memorandum Opinion filed April 12, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00502-CR

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JUAN REYES SOLIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 1044361

M E M O R A N D U M O P I N I O N

Appellant, Juan Reyes Solis, was charged by indictment with the felony offense of aggravated sexual assault. He pleaded not guilty, and elected to have his case tried before a jury. The jury found appellant guilty, and the trial court assessed punishment at eighty years= confinement in the Institutional Division of the Texas Department of Criminal Justice, plus a ten thousand dollar fine. Appellant filed his written notice of appeal on the same day. Appellant raises four issues: 1) prosecutors improperly commented on appellant=s exercise of his choice not to testify, in violation of the Fifth Amendment of the U.S. Constitution; 2) prosecutors improperly commented on his failure to testify, in violation of the Texas Constitution and article 38.08 of the Texas Code of Criminal Procedure; 3) trial counsel=s failure to object to the Fifth Amendment violations amounted to ineffective assistance; and 4) trial counsel=s failure to object to violations of the Texas Constitution amounted to ineffective assistance of counsel. We find that the first two issues were waived, and that appellant cannot meet the test for showing ineffective assistance in his third and fourth issues. Therefore, we affirm.

Factual and Procedural Background

On August 30, 2003, the complainant was walking from the Galleria, where she worked as a hairstylist, to her car in the employee parking garage, when she saw a man running toward her. The man threw her to the ground, struck her several times, and twisted her neck. He forced her into the passenger side of her vehicle head first. He drove her away from the Galleria some distance, then stopped the car, forced her into the backseat and raped her. He then began driving again, and when the vehicle slowed at a red light, the complainant jumped out of the car and ran. She got into a car with two people who were behind her at the red light.

The complainant was taken to a hospital, where a sexual assault exam was performed. Sperm was recovered and the DNA was eventually matched to appellant. Appellant was arrested and charged with aggravated sexual assault.

Appellant=s complaints all stem from statements made by a prosecutor during the State=s closing arguments. The following are the excerpts from the closing argument which allegedly comment on appellant=s failure to testify:

$ AHe thinks he is real smart. He thinks he=s smarter than the 12 of you. He thinks he is smart enough to come in here and say, It is not me. Why don=t you just forget about the fact that they picked out two and four in the photo spread.@

$ AYou remember in voir dire when I told you about all the rights defendants have and victims have none? None. He has a right to stand up here and tell you: not guilty. And he forced me to bring a trial and bring all the evidence. He has a right to force [complainant] to come in here and tell you what happened. He took that right.@

$ ADon=t give him credit. Don=t let him come in here and tell you: Not me. Don=t let him come in here and tell you some man in Pasadena confessed. You know that=s not what the officer said. He said that some other idiot in Pasadena said that he heard some other idiot bragging about something. That=s not a signed confession.@

$ AYou can=t hold it against him, but you can=t give him credit and pretend like maybe there is something more because there is not. This is it. It is simple. It doesn=t get any more complicated or get any more simple. It=s cut and dried. DNA on a vaginal swab inside the complainant. She told you how scared she was.@

None of the prosecutor=s statements were objected to, and the jury began deliberations immediately following the State=s closing argument.

Analysis

I. Lack of Objection to Alleged Comments on Silence Waived Error

In his first two issues, appellant complains that the prosecutor commented on his failure to testify at trial, in violation of the U.S. Constitution, the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure.

As a prerequisite for appeal, the record must show that the complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a). This rule applies to comments by a court or prosecutor regarding the defendant=s invocation of the right to remain silent. See Griffin v. State, 181 S.W.3d 818, 823 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). A[T]hough such comments are a constitutional violation, a defendant waives her right to complain on appeal if she fails to make a timely, specific objection to those comments.@ Id. Here, no objection was raised by appellant during the prosecutor=s closing argument. Therefore, appellant cannot raise this alleged error on appeal.

Appellant also seems to argue in his brief that because an alleged violation of the U.S. Constitution is involved, we should invoke Federal Rule of Criminal Procedure 52(b), which allows for consideration of unpreserved error when Aplain error affecting substantial rights has been committed.@ See Fed. R. Crim. P. 52(b). However, the federal rules of procedure apply in federal courts, not state courts. See Tribe, American Constitutional Law ' 3 24 at 166 (2d ed. 1988) (AOf necessity, state procedural law determines the manner in which a federal question is to be presented in state court, unless federal substantive law defines its own procedural matrix...@); see also Flores v. State, No. 13-99-561-CR, 2001 WL 34615314, at *1 (Tex. App.CCorpus Christi Feb. 15, 2001, no pet.) (not designated for publication) (AThe Federal Rules of Criminal Procedure are applicable to federal trials, not state trials.@). As stated above, under our state court procedural rules, appellant waived his right to complain of this alleged error by failing to object at trial. We overrule appellant=s issues one and two.

 II. Trial Counsel Was Not Ineffective Because Statements Were Not Comments On Appellant=s Silence

In his third and fourth issues, appellant argues that his counsel was ineffective because he did not object when the prosecutor commented on his choice not to testify. Because appellant cannot meet the threshold requirement of attorney error, we do not agree that his trial counsel was ineffective.

To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel=s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). To argue that a failure to object to the State=s argument amounted to ineffective assistance, appellant must show that the trial judge would have committed error in overruling an objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996) (per curiam).[1] A prosecutor=s statements constitute a comment on the failure of a defendant to testify when the language used was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant=s failure to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). Language that can reasonably be construed to refer to a failure to present evidence other than from the defendant's own testimony does not amount to a comment on the failure to testify. Swallow v. State, 829 S.W.2d 223, 225 (Tex. Crim. App. 1992). But when the State's argument points to a lack of evidence that only the defendant himself can supply, it is error. Id.

 A. Prosecutor Did Not Comment on Appellant=s Failure to Testify

None of the statements made by the prosecutor were manifestly intended as comments on appellant=s failure to testify, nor were they of a character that the jury would necessarily and naturally take them as a comment on his failure to testify.

1. Statement Number One

First, appellant argues that the statement, A[h]e has a right to stand up here and tell you: not guilty. And he forced me to bring a trial and bring all the evidence. He has a right to force [complainant] to come in here and tell you what happened. He took that right@ incites the jury to take appellant=s failure to testify as a circumstance against him. Right before these statements, the prosecutor said, AYou jurors have an easy job in this case. And you may be thinking, what are we missing? Why are we here?@ It seems clear that the prosecutor was saying that the case was so clear-cut that the jurors may have wondered why a plea of guilty was not entered, but that it was appellant=s right to force the State to go through with a trial, no matter how overwhelming the evidence. Taken in context, it appears that the Aright@ being referred to was appellant=s right to a jury trial, rather than his right to remain silent.

While it is true that a juror could have heard the prosecutor=s reference to complainant=s testifying and recalled that appellant had not testified, this is not the natural and necessary interpretation of the prosecutor=s comment. The more natural interpretation is that the reference to complainant=s testimony was meant to refer to the evidence against appellant that the prosecutor was forced to produce at trial.

2. Statement Number Two

Next, appellant complains of the statement, A[h]e thinks he is real smart. He thinks he's smarter than the 12 of you. He thinks he is smart enough to come in here and say, It is not me. Why don't you just forget about the fact that they picked out two and four in the photo spread.@ He claims it is a comment on his failure to testify because he did not actually say these things, he is the only person who could have addressed the issues raised, and the implication is that appellant thought he was Asmart@ for hiding behind the Fifth Amendment.

The meaning of the statement that appellant thought he was smarter than the jurors is not obvious to this court, and probably was not obvious to the jury, but it could easily refer again to his right to a jury trial, and his hope that perhaps the jurors would not take all the evidence at trial into account. The statement does not necessarily and naturally refer to appellant hiding behind his right to remain silent.

When the State referred to appellant saying Ait=s not me@ it was not a reference to anything appellant actually said or should have said at trial, but rather referred to his not-guilty plea. Therefore, it was a summation of appellant=s plea to the charged offense, rather than any sort of comment on a failure to testify. Likewise, the statement concerning the photo spread is an implication from the not-guilty plea. Obviously, appellant never literally said that the jury should forget the photo spread evidence, but this statement does not draw the jury=s attention to the fact that he did not testify. Rather, it attributes to appellant an attitude toward a piece of evidence, consistent with his position at trial.

Appellant also complains that he was the only person who could have addressed the issues the prosecutor raised. A statement by a prosecutor constitutes a comment on the defendant=s silence when the prosecutor=s argument points to a lack of evidence that only the defendant himself can supply. Swallow, 829 S.W.2d at 225. However, none of the statements by the prosecutor pointed to a lack of evidence. Thus, this argument fails.

3. Statement Number Three

Similarly, appellant argues that the prosecutor commented on appellant=s failure to testify when he said ADon't give him credit. Don't let him come in here and tell you: Not me. Don't let him come in here and tell you some man in Pasadena confessed. You know that's not what the officer said. He said that some other idiot in Pasadena said that he heard some other idiot bragging about something. That's not a signed confession.@ He argues that it is a comment on his failure to testify because he never actually said those things, and the only person who could have responded to the statements was appellant. Again, the appellant did not actually say these things, but the prosecutor was not pointing out a failure to testify to certain things. Rather, the prosecutor was summarizing evidence elicited by appellant, and referred to in appellant=s closing argumentCthat he was innocent because another man had claimed responsibility.

Appellant argues again that he was the only person whose testimony could have responded to the issues raised by the prosecutor. However, the prosecutor never pointed to a lack of evidence which could have only been supplied by appellant. See Swallow, 829 S.W.2d at 225. Clearly, if appellant is referring to a confession made by another individual to a third party, at least two other people were able to testify regarding the conversation. In fact, because he was not a part of that conversation, appellant could not testify about it.

Appellant once again attempts to invoke this rule under the wrong circumstances. Nothing in this statement constituted a comment on appellant=s failure to testify.

4. Statement Number Four

Finally, appellant argues that the State commented on his silence when it said, AYou can=t hold it against him, but you can't give him credit and pretend like maybe there is something more because there is not. This is it. It is simple. It doesn't get any more complicated or get any more simple. It=s cut and dried. DNA on a vaginal swab inside the complainant. She told you how scared she was.@ However, in context, when the prosecutor says not to give appellant credit, it appears once again that she is referring to appellant=s willingness to go through a jury trial. The State appears to be arguing that just because a defendant demands a jury trial, rather than reach a plea agreement, that does not mean the defendant is innocent. Whether this is what the State intended to say by its argument, the statements were not such that they would necessarily and naturally lead the jury to understand them as a statement on defendant=s failure to testify.

Appellant also argues that the mention of complainant=s fear was a comment on appellant=s failure to testify because only his testimony would have been responsive to this argument. Once again, appellant wrongly invokes this rule. As with all of prosecutor=s statements, this one did not refer to a lack of evidence which could only have come from appellant. The prosecutor merely referred to evidence which was already in the record. Moreover, the two people who gave the victim a ride when she made her escape could have testified to the level of her fear.

B. Appellant Fails First Prong of Strickland

Since none of the statements by the State constituted a comment on appellant=s failure to testify, it cannot be said that the trial court would have erred in overruling an objection on that basis, had one been raised. See Vaughn, 931 S.W.2d at 566. Therefore, appellant cannot even establish the first prong of the Strickland testCthat his representation fell below the standard of prevailing professional norms. See Strickland, 466 U.S. at 687. We overrule appellant=s issues three and four.

Conclusion

Having overruled each of appellant=s four issues, we affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 12, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Since the standard for ineffective assistance is the same under Federal and Texas law, we consider issues three and four together. See Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986).