
Opinion issued November 22, 2006
 


     










In The
Court of Appeals
For The
First District of Texas




NO. 01-05-00158-CR




PAUL EDWARD WYBORNY, Appellant

V.

THE STATE OF TEXAS, Appellee




On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1013939




DISSENTING  OPINION
          I agree with the majority that the trial court erred in overruling appellant’s
objection to the prosecutor’s comment on his post-arrest silence.  However, I believe
the comment was harmless.  Therefore, I dissent.  I would affirm the judgment of the
trial court.
Standard of Review of Harmful Constitutional Error
          On June 24, 2004, appellant and his girlfriend, Sabrina, went to a bar in Harris
County, Texas called “Uncle Albert’s.”  While playing a game of pool, the two came
into contact with Rene Rodriguez.  All three were served alcohol by Jennifer Bissell. 
Appellant, Rodriguez, and Bissell testified that a dispute arose between appellant and
Patrick Axtell, another patron in the bar.  They testified that appellant struck Axtell
with his hand.  The witnesses disagreed, however, as to whether Axtell initiated the
fight at the bar, how many times appellant struck Axtell, and whether appellant was
acting in self-defense when he struck Axtell.  
          Appellant testified that he was playing pool when he accidentally bumped
Axtell with the pool cue while Axtell was walking behind him.  Axtell called him a
“son of a bitch” and walked to the other side of the bar.  The two men did not make
any further contact with one another until appellant and Sabrina were leaving the bar
for the evening. 
          Appellant testified that Sabrina was paying their bill when he started to walk
toward the door.  As appellant approached him, Axtell “flipped off” appellant. 
Appellant testified that he looked behind him to see if the obscene gesture was
directed toward someone else.  He turned back around, and Axtell said, “I’ll break
your face” and “took a swing” at appellant’s nose.   
          I agree with the majority that the trial court’s failure to sustain appellant’s
objection to the State’s attempt to impeach appellant with his post-arrest silence as
to his self-defense theory was constitutional error that resulted in a violation of
appellant’s right to remain silent under Article I, Section 10 of the Texas
Constitution.  See Tex. Const. art. I, § 10.  Therefore, Texas Rule of Appellate
Procedure 44.2(a) applies.  Texas Rule of Appellate Procedure 44.2(a) requires
reversal in constitutional error cases “unless the court determines beyond a reasonable
doubt that the error did not contribute to the conviction or punishment.”  Tex. R. App.
P. 44.2(a).  In examining the record to assess harm, we consider: (1) the source and
nature of the error; (2) the extent to which the State emphasized it; (3) the weight a
juror would probably place on it; and (4) whether declaring the error harmless would
encourage the State to repeat it with impunity.  Dinkins v. State, 894 S.W.2d 330, 356
(Tex. Crim. App. 1995).  I would hold that the error was harmless under the Dinkins
factors.
          (1) Source of the error
          The source of the error was the State’s single question about appellant’s post-arrest silence as to his claim of self-defense prior to appellant’s counsel’s objection
and its single repetition of the question after the objection was overruled.  
          (2) Extent to which the State emphasized the error
          There was no other mention of appellant’s post-arrest silence, so this evidence
was not strongly emphasized by the State.  
          (3) Weight a juror would probably place on appellant’s post-arrest silence
          In applying the harmless error rule, we are required to “calculate as much as
possible the probable impact of the error on the jury in light of the existence of the
other evidence.”  Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989).  “If
overwhelming evidence dissipates the error’s effect upon the jury’s function in
determining the facts so that it did not contribute to the verdict then the error is
harmless.”  Id.
          As the majority states, this case turned on the credibility of the witnesses, an
issue exclusively within the province of the jury.  Three witnesses, including
appellant, testified to the events surrounding Axtell’s death.
          Appellant testified that, after words were exchanged between them, Axtell said
“I’ve got something for you” and was reaching into his back pocket when appellant
hit him in the face, knocking him to the floor.  Appellant, thinking that Axtell had “a
knife or small pistol or something,” straddled Axtell with one knee on the arm with
which Axtell was reaching into his pocket and his other knee on Axtell’s chest. 
Appellant testified that Axtell then hit him in the ribs, and appellant responded with
three quick hits to Axtell’s face.  Appellant said that he “decided [that it] wasn’t a
good place to be on top of him because [he] was still vulnerable if [Axtell] had a
weapon,” so he got off of Axtell and grabbed a nearby pool cue “for [his] defense
only.”
          Rodriguez testified that appellant struck Axtell once while both men were still
standing and three more times after Axtell hit the floor.  Rodriguez noticed that Axtell
“was out” and “seemed defenseless,” so he intervened and pushed appellant off of
Axtell.  As he was pushing appellant back, appellant grabbed the pool cue. 
Rodriguez testified that appellant appeared ready to hit Axtell with the pool cue and
probably would have done so if he had not stepped in.  He did not see Axtell take a
swing at appellant, and he did not see him raise his hands to defend himself against
appellant’s first punch.  
          Bissell testified that she heard a brief verbal exchange between appellant and
Axtell prior to the fight.  She saw appellant hit Axtell twice with his fists before he
fell to the ground, and she saw appellant hit Axtell “three or four more times” after
that.  She further testified that after Axtell hit the floor she could not see him move
and that she saw appellant with the pool cue. 
          Nobody but appellant testified that Axtell was capable of attacking appellant
or even defending himself from appellant’s blows from the time appellant hit him in
the face and knocked him to the floor until he died.  Not even appellant disputes the
evidence that appellant hit Axtell in the face with his fists, dropping him to the floor,
then beat him to death while he lay on the floor pinned down by appellant.  Nor does
appellant deny that after he felt himself sufficiently unthreatened to get off of Axtell,
he grabbed a pool cue, but was restrained from using it.  The only evidence that
supports appellant’s self-defense theory is his own testimony as to the subjective
threat he perceived from Axtell.  I would hold, therefore, that the jury was well within
its reasonable discretion in rejecting appellant’s self-defense theory and convicting
him of murder. 
          Given appellant’s full development of his self-defense theory at trial and the
nevertheless overwhelming evidence that appellant beat a prone man to death with
his fists after pinning him down on the ground, it is reasonable to infer that a jury 
would place only negligible weight on the State’s comment on appellant’s post-arrest
silence in determining his guilt. 
          (4) Encouragement to the State to repeat the error
          There is nothing to suggest that the State would be encouraged to repeat its
reference to appellant’s post-arrest silence in order to influence the jury’s
determination of guilt.  The only possible result of the State’s repetition of the error
of commenting on the defendant’s post-arrest silence on remand in this case, or in a
similar future case, would be to provoke a second appeal and yet another potential
retrial of a case in which the only evidence of self-defense is the appellant’s own
subjective appreciation of a threat from a person who, on the basis of overwhelming
evidence, is in no position to threaten him and in which the evidence of guilt is
likewise overwhelming.  There is, thus, no rational incentive for the State to repeat
the error.
Conclusion
          I would hold that the State’s reference to appellant’s post-arrest silence was
harmless.  I would affirm the judgment of the trial court.




                                                             Evelyn V. Keyes
                                                             Justice


Panel consists of Justices Nuchia, Keyes, and Hanks.

Publish.  Tex. R. App. P. 47.2(b). 
Justice Keyes, dissenting.
