                                      NO. 07-10-0389-CR

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL E

                                      JULY 18, 2011
                               __________________________

                                       PAUL F. ROSALES,

                                                                     Appellant
                                                  v.

                                    THE STATE OF TEXAS,

                                                                     Appellee
                               __________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

          NO. 2009-425,826; HONORABLE CECIL G. PURYEAR, PRESIDING

                               __________________________

                                  Memorandum Opinion
                               __________________________

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.1

      After pleading guilty to the offense before a jury, Paul F. Rosales was convicted

of burglarizing a habitation. He then tried the issue of punishment to the same jury,

which eventually levied a sentence of fifty years in prison. The two issues before us

concern appellant’s Fifth Amendment right to remain silent and the State’s comment

upon appellant’s refusal to waive that right.            The comment was made during the


      1
       John T. Boyd, Senior Justice, sitting by assignment.
punishment phase of the trial, again, after appellant had already pled guilty.                        We

overrule the issues and affirm the judgment.

        The colloquy between the prosecutor and witness occurred as follows:

        Q. Now, did you and – decide to Mirandize this Defendant and also the
        passenger?

        A.   After Investigator McAdoo got to the scene.

        Q. Okay. And who is Anthony McAdoo?

        A. He is a criminal investigator in our Investigations Division. He was the
        on-call investigator and he was sent out to the scene.

        Q. And when we talk about mirandizing someone, we’re talking about if
        you want to waive your rights and speak to law enforcement, someone
        can – you know, you can hire an attorney if you can’t afford one, you have
        the right to talk to us or not; is that correct?

        A.   Yes, sir.

        Q. I mean, it’s a little bit more detailed than that, but that’s what the
        Miranda warnings are; is that correct?

        A. Yes, sir.

        Q. Did either Jesus or this Defendant ever waive their rights and speak to
        you?

        A. No, they refused.

        Q. Okay.

Thereafter, appellant’s counsel sought leave to approach the bench. Upon receiving

such leave, counsel stated: “. . . at this time I believe that is a comment on his post-

arrest right to remain silent, and it goes to his failure to provide a defense and shifts the

burden.” The trial court overruled the purported objection.2


        2
          Appellant’s quotation of the pertinent colloquy between the prosecutor and witness is inaccurate.
It indicates that he objected to the State’s effort to offer testimony commenting upon appellant’s decision
to remain silent before the law enforcement officer was asked if appellant waived the right. The record,

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        A defendant must timely object to a purported comment about his decision to

remain silent to preserve the error for review. Salazar v. State, 131 S.W.3d 210, 214

(Tex. App.–Fort Worth 2004, pet. ref’d); Maxson v. State, 79 S.W.3d 74, 76 (Tex. App.–

Texarkana 2002, pet. ref’d). To be timely, the objection must be uttered as soon as the

ground for objection became apparent. Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim.

App. 2008). Waiting until after the question has been asked and answered while failing

to show any legitimate reason for the delay does not satisfy the requirement. Dinkins v.

State, 894 S.W.2d 330, 355 (Tex. Crim. App. 1995). And, that is what occurred here. It

is clear that the prosecutor was broaching, for some reason, the topic of remaining

silent and one’s right to do so. It is also clear that the foregoing was a prelude to the

witness being asked if appellant waived his right to remain silent. Why appellant opted

to withhold objection until the question was answered is unexplained. So, under these

circumstances, we conclude that appellant neglected to satisfy the requirement that he

preserved the issues for review by timely objecting. Consequently, the issues before us

were waived.3




however, discloses that appellant’s counsel said nothing until after the question was asked and
answered. This distinction is of import, as we will illustrate, supra.
        3
          Even if not waived, we note that when a defendant pleads guilty, he admits the existence of all
facts necessary to establish his guilt and the introduction of evidence by the State is to permit a judge or
jury to exercise its discretion in the assessment of punishment. Carroll v. State, 975 S.W.2d 630, 631-32
(Tex. Crim. App. 1998). While it is true that a constitutional privilege against self-incrimination still exists
at the punishment phase of trial, Carroll v. State, 42 S.W.3d 129, 132 (Tex. Crim. App. 2001), the entry of
an accused’s guilty plea diminishes the force of his assertion that his post-arrest silence constitutes a
right against self-incrimination and goes only to the issue of punishment and not guilt. See Price v. State,
640 S.W.2d 673, 675 (Tex. App.–Houston [14th Dist.] 1982, no pet.) (quoting Williams v. State, 607
S.W.2d 577, 579 (Tex. Crim. App. 1980)). This is particularly true in light of appellant’s complaints that
the reference to his post-arrest silence went to his “failure to provide a defense” and “shift[ed] the
burden.”


                                                       3
      Accordingly, the judgment is affirmed.



                                               Brian Quinn
                                               Chief Justice

Do not publish.




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