Richard Garcia v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-091-CR

RICHARD GARCIA,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 95-550-C

O P I N I O N

A jury convicted Richard Garcia of aggravated robbery and assessed punishment at fifteen years in prison and a $1,025 fine. Tex. Penal Code Ann. 29.03 (Vernon 1994). He appeals on two points, asserting that the court erred in failing to grant a mistrial and in commenting on the evidence. We will affirm the judgment.

BACKGROUND

On June 21, 1995, at around 7 p.m., the E-Z Pak grocery store at 2128 Bosque was robbed. Steve McFerran, the owner of the store, identified Garcia as the person who put a knife within inches of his face and said, Give me the money. The men struggled, and Garcia took twenty-five to thirty dollars from the register. He then fled the store on a bicycle.

Delfino Perez lives at 2011 Bosque. Around 7 p.m. the night of June 21, he saw a person on a bicycle throw something into the dumpster behind the house. Perez saw a police officer parked at the corner of 20th and Bosque. He asked the officer what had happened and told the officer what he had seen. Another officer found a knife in the dumpster. About half an hour later, a police officer brought Garcia to Perez s house. Perez identified Garcia as the man he had seen at the dumpster.

John Clark, an officer with the Waco Police Department, testified that he was patrolling a nearby area around 7 p.m. He received a dispatch with a description of the robber as a heavy-set Hispanic male wearing a blue tee shirt with a white design and blue jeans. Moments later, Clark saw a man matching the description walking from an alley. Clark pulled up even with the man and asked him to stop. The man looked at Clark and took off running toward the alley. Clark pursued the man and placed him under arrest. He identified the man as Garcia.

Garcia testified that he had gone to the E-Z Pak to buy beer, although he was underage . He stated that he was intoxicated, having drunk six to seven beers before arriving at the store. Garcia testified that, although he had previously bought beer without showing proof of age, this time McFerran ID d him. Garcia argued with McFerran, trying to convince him to sell him the beer. McFerran came around the corner to make Garcia leave, and Garcia pushed him off causing McFerran to bump into the glass counter. Garcia then took off running. He denied having a knife and testified that the knife recovered from the dumpster was not his.

When asked why he ran when Clark attempted to detain him, Garcia stated that he was still drunk obviously. Garcia said that Clark pulled up real fast and that he ran just out of panic.

Garcia s first point asserts that the court erred in refusing to grant a mistrial after the State twice attempted to impeach [him] by cross-examining him about his post-arrest silence, and linked his post-arrest silence to his testimony. The following questioning occurred on cross-examination:

[STATE]: So the police officer came over to you, and what happened?

[GARCIA]: He arrested me.

[STATE]: What did you say?

[GARCIA]: Nothing to him. I didn t say nothing to him.

[STATE]: Why not? You hadn t done anything wrong?

[GARCIA]: That s right. Why would I say anything to him?

[STATE]: Why didn t you say, Why are you arresting me?

[DEFENSE COUNSEL]: Objection, Your Honor. This is improper impeachment.

THE COURT: Sustained.

[DEFENSE COUNSEL]: Request that the jury be instructed.

THE COURT: Instruct the jury they will disregard the last statement of counsel

for the State for any purpose whatsoever.

[DEFENSE COUNSEL]: Reluctantly we move for a mistrial.

THE COURT: Overrule the motion for mistrial.

[STATE]: Did you ever give this story that you are telling us now to the police?

[DEFENSE COUNSEL]: Objection, Your Honor. Same objection.

THE COURT: And I again sustain the objection and instruct the jury to disregard the last statement of counsel for any purpose whatsoever.

[DEFENSE COUNSEL]: Move for a mistrial.

THE COURT: Overruled.

The State concedes that the questions were improper, but argues that the court s instruction to disregard for any purpose whatsoever cures any harm. See Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App.), cert. denied, U.S. , 116 S. Ct. 106, 133 L. Ed. 2d 59 (1995). Garcia argues that the State s use of post-arrest silence for impeachment purposes is per se harmful error. Thomas v. State, 812 S.W.2d 346, 350 (Tex. App. Dallas 1991, pet. ref d) (citing Buitureida v. State, 684 S.W.2d 133, 142 (Tex. App. Corpus Christi 1984, pet. ref d)).

In Dinkins, the State elicited testimony from the investigating officer concerning Dinkin s demeanor during the murder investigation. // Dinkins, 894 S.W.2d at 355. The officer testified that Dinkins showed no remorse and did not protest his innocence. The trial court sustained Dinkin s objection that the testimony was a comment on his right to remain silent and instructed the jury to disregard. Id. The Court of Criminal Appeals acknowledged that comments about a defendant s post-arrest silence violate the Fifth Amendment prohibition against self-incrimination. Id. at 356. However, it also held that such comments do not lead to automatic reversal. Id. Because of Dinkin s objection and the court s instruction to disregard, the Court found the error was cured. Id.

Although the State twice questioned the defendant on his post-arrest silence, the court sustained Garcia s objections and instructed the jury to disregard the State s comments for any purpose whatsoever. Furthermore, unlike the facts in Thomas and Buitureida, the State did not urge in its closing arguments that the jury should consider Garcia s post-arrest silence. Thomas, 812 S.W.2d at 350; Buitureida, 684 S.W.2d at 141. We believe the reasoning in Dinkins controls and that the court s instruction cured the error. See Dinkins, 894 S.W.2d at 356. We overrule point one.

Garcia s second point asserts that the court commented on the evidence when, over his objection, it instructed the jury that voluntary intoxication is not a defense to the commission of an offense. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 1996).

Garcia testified that he had consumed several beers and was intoxicated when he argued with McFerran. Garcia objected to the jury instruction as a comment on the weight of the evidence because he had not offered evidence of intoxication as a defensive matter. The State responded that Garcia had raised the issue of intoxication, that it had the burden to prove intent, and that it did not want the jury to understand that intoxication is a defense.

Voluntary intoxication is not a defense to the commission of an offense. Tex. Penal Code Ann. 8.04(a) (Vernon 1994). We do not believe the court s charge was a comment on the weight of the evidence. Rather, in light of Garcia s testimony, it was a permissible statement of the applicable law. We overrule point two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed September 18, 1996

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