









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-00-00239-CR

______________________________



TUCKER JAMES MAXSON, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 16,362-2000







Before Cornelius, C.J., Grant and Ross, JJ.

Opinion by Justice Grant


O P I N I O N


	Tucker James Maxson appeals from his conviction by a jury for the offense of sexual assault. 
The trial judge assessed punishment at ten years' imprisonment. 
	Maxson contends on appeal the trial court erred by overruling his objection to evidence that
he had received Miranda (1) warnings and by overruling his Motion for Mistrial based on an emotional
outburst by the victim in the presence of the jury.   	
	Maxson first contends the use by the State of testimony that he was given Miranda warnings
was harmful error.  Counsel objected to this testimony as being a direct violation of the court's
ruling.  That ruling was made at a hearing on Maxson's Motion in Limine in which Maxson asked
the trial court to instruct the State and its witnesses not to refer to anything concerning whether
Maxson had asked for counsel or invoked his right to remain silent.  This is supported by the State's
response to the objection that, "Nobody said anything about the defendant invoking his right to
remain silent."  The objection was overruled.  The State then followed up by asking the officer again
whether he had advised Maxson of his constitutional rights.
	The State initially argues the contention is not preserved for review because the substance
of the objection was not apparent.  Where an appellant claims the trial court erred in admitting
evidence offered by the state, the error must have been preserved by a proper objection and ruling. 
 See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); Rawlings v. State, 874 S.W.2d
740, 742 (Tex. App.-Fort Worth 1994, no pet.).  The objection must have been timely, and the
defense must have stated the basis for the objection unless the particular ground was apparent from
the context.  See Lankston v. State, 827 S.W.2d 907, 908-09 (Tex. Crim. App. 1992).  A defendant's
right to remain silent and not have that silence used against him or her at trial is a forfeitable right. 
Specifically, a defendant must object in order to preserve complaints concerning the admission of
evidence showing his or her post-arrest silence.  Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim.
App. 1994) (complaint concerning admission of evidence of defendant's post-arrest silence waived
in absence of objection); Miller v. State, 939 S.W.2d 681, 687-88 (Tex. App.-El Paso 1996, no pet.).
	The objection itself does not set out the complaint now raised.  However, it is clear from our
review of the Motion in Limine and the State's response to the objection, as well as the context in
which the objection was raised (including the later objection to a question designed to elicit the same
testimony), that the objection was understood by all involved as directed at testimony that Maxson
was informed of his Miranda rights.  We conclude the issue was preserved for review.  See Tex. R.
Evid. 103(a); Veteto v. State, 8 S.W.3d 805, 810 (Tex. App.-Waco 2000, pet. ref'd). (2)
	Maxson contends the trial court's ruling was erroneous because it constituted permission to
bring evidence before the jury from which it would conclude Maxson had exercised his right to
remain silent, thus allowing the State to improperly draw the jury's attention to his silence. (3) 
Evidence of post-Miranda silence is prohibited because a jury may improperly consider evidence
of an accused invoking his constitutional rights as an inference of guilt.  See Hardie v. State, 807
S.W.2d 319, 322 (Tex. Crim. App. 1991); Dumas v. State, 812 S.W.2d 611, 614 (Tex. App.-Dallas
1991, pet. ref'd).  
	This case, however, is distinguishable from the cases set out above.  In each of the cases
above, the state introduced evidence not only that the defendant had been informed of his or her
Miranda rights or given his or her rights under Article 38.22, but then either went on to introduce
testimony that clearly showed the defendant had then invoked his or her right to remain silent or his
or her right to counsel or that the obvious conclusion from the evidence was that the defendant had
invoked his or her rights.  Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2002). 
In either situation, the jury was presented with evidence the defendant invoked his or her
constitutional rights.  
	We agree fully with the long line of cases holding that to permit use of evidence that a
suspect stood silent or claimed his or her privilege in the face of incrimination would erode the
protection guaranteed by both the United States and Texas constitutions.  See Dumas, 812 S.W.2d
at 614; Gathright v. State, 698 S.W.2d 260, 261 (Tex. App.-Fort Worth 1985, no pet.).
	In this case, however, a different scenario is shown.  The officer's testimony he had informed
Maxson of his constitutional rights was elicited as background for the officer's further testimony that
after Maxson's arrest but before any custodial interrogation began, Maxson volunteered he had
engaged in sex with the victim, but claimed the sex was consensual.  Under these facts, the evidence
neither shows nor leads to the conclusion Maxson stood silent or claimed the privilege.  It shows
only that he was warned, but chose to attempt to explain his actions.  In such a situation, the evidence
does not show Maxson then exercised his right to remain silent or requested counsel.  Further, there
is no additional evidence from which the jury would necessarily conclude he exercised the rights set
out in the warnings.  We therefore conclude any exercise by Maxson of his constitutional rights was
not improperly brought before the jury in this case.  The contention of error is overruled.
	Maxson next contends an outburst made by the alleged victim in the presence of the jury was
of such a nature that he is entitled to a new trial.  The outburst occurred during the jury's
deliberations at the guilt/innocence phase of the trial.  The jurors had asked for information about
a conflict in testimony.  The jury was brought into the courtroom for the testimony to be read.  After
the jury was released, defense counsel made the following record:
	Your Honor, at this time Jim Attaway, attorney for the defendant, I just want to bring
the Court's attention to the fact that when the jury came in this time, the complaining
witness, [the complainant], was seated in the front seat of the courtroom crying,
showing signs of distress and she was brought in about one minute before the jury
came in, and I believe that was for the expressed [sic] purpose of affecting the jury
in their deliberations.  Then as they left the jury box and during the reading of this
recitation by the court reporter to the jury, they were looking over at her; and when
they left, almost every one of the jurors looked at her as she was showing signs of
distress and crying.  

			We object to that, your Honor, and we ask the Court to declare a
mistrial because I believe that action has adversely affected the jury and they can no
longer fairly determine a verdict in this case, their decision will be affected by the
display by [the complainant].

The trial judge stated that he had been unable to see the complainant because a television was in the
way and that he would have taken action had her emotional display been brought to his attention. 
He then denied the Motion for Mistrial.  We review a trial court's denial of a motion for mistrial
under an abuse of discretion standard.  Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App.
1999).  Mistrial is an extreme remedy for prejudicial events occurring during the trial process.  See
Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996).
	 To show that external influences on the jury created reversible error, a defendant must
demonstrate actual or inherent prejudice.  Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App.
1996); Moreno v. State, 952 S.W.2d 44, 46 (Tex. App.-San Antonio 1997, no pet.).  Actual
prejudice occurs when the jurors articulate "a consciousness of some prejudicial effect."  Howard,
941 S.W.2d at 117.  Inherent prejudice occurs when "an unacceptable risk is presented of
impermissible factors coming into play."  Id.  In other words, bystander conduct that interferes with
normal trial proceedings will not result in reversible error unless the defendant shows "a reasonable
probability that the conduct or expression interfered with the jury's verdict."  Id. (citing Landry v.
State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985)).
	The record does not reveal an outburst that could be described as extreme, but does reflect
some form of emotional display occurred outside the sight of the trial judge.  Counsel did not request
an instruction, and we perceive obvious tactical reasons for not asking that the jury be recalled and
given an instruction to disregard.  An argument can be readily made that such an instruction might
well reiterate, in the minds of the jurors, the conduct they had just observed--which they would then
be instructed to disregard.  
	Nevertheless, this record does not contain anything to suggest the emotional display was of
such a nature that an instruction to disregard would have been ineffectual.  Accordingly, we must
also conclude the trial court's decision not to grant the Motion for Mistrial did not constitute an abuse
of discretion.
	The judgment is affirmed.	


						Ben Z. Grant
						Justice

Date Submitted:	January 23, 2002
Date Decided:		March 26, 2002

Publish
1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
2. This case is instructive, in that the prosecutor did not merely raise the specter of post-arrest
silence, but instead flagrantly persisted in pursuing the line of questioning.  The Waco court
concluded that because of the state's action and "the simplicity of the trial court's instructions when
constitutional guarantees were at stake," the instructions were inadequate to effectively cure the
prejudice caused by the state.  Veteto, 8 S.W.3d at 812.
3. In  Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Supreme Court
held it was a violation of due process to impeach a defendant's testimony with evidence of his or her
post-arrest, post-Miranda silence.  The Court held it was fundamentally unfair to promise a
defendant he or she has a right to remain silent and then violate that assurance by impeaching the
defendant when he or she invokes that right.  See also Jamail v. State, 787 S.W.2d 380, 382 (Tex.
Crim. App. 1990).

