                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-14-00369-CR
                            ____________________

                  ANDREW MINER COLVIN JR., Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee
_______________________________________________________             ______________

                    On Appeal from the 258th District Court
                         San Jacinto County, Texas
                           Trial Cause No. 11,177
________________________________________________________             _____________

                          MEMORANDUM OPINION

      Appellant Andrew Miner Colvin Jr. challenges his conviction for assault by

occlusion against a person with whom he had a dating relationship. See Tex. Penal

Code Ann. § 22.01(a)(1), (b)(2)(B) (Supp. West 2015). In three issues, Colvin

argues the trial court erred in allowing the State to elicit testimony in violation of

his Fifth Amendment right against self-incrimination, erred in allowing the State to

elicit testimony about his post-arrest silence through a witness for the prosecution,

and erred in allowing the State to cross-examine him with his post-arrest silence in

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violation of article 1, section 10 of the Texas Constitution. We affirm the trial

court’s judgment.

                             Trial Court Objections

      Colvin’s brief addresses two instances in the trial when the State developed

testimony about Colvin’s post-arrest silence. In response to a report of assault,

Deputy Jared Zolman executed a warrant for Colvin’s arrest and described the

arrest, as follows:

            [By Prosecutor:] Q. Okay. When the warrant was executed, did
      the Defendant seemed [sic] surprised?

             [Witness] A. Yes, sir, I would say so.

            Q. Okay. Was he initially -- was he asked if he knew why he
      was being arrested?

             A. Yes, sir.

             Q. And what was his initial response to that?

             A. Didn’t say anything.

             Q. Didn’t say anything? Was he then told what he was being
      arrested for?

             A. Yes, sir.

             Q. And what was his response?

            [Defense Counsel]: Your Honor, I would object to that
      statement. That’s a statement made in custody, and he was not -- the
      record hasn’t reflected he was Mirandized at that point.
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      That was an inadmissible statement but -- can we approach,
your Honor?

      THE COURT: Okay.

      (At the bench)

      [Defense Counsel]: Your Honor, I would object to that
statement. Deputy Zolman’s testimony is that he was not Mirandized.
That was a statement as to why he was being arrested.

      That is an inadmissible statement being made as he was in
custody.

       [Prosecutor]: Judge, the State -- the warrant was executed at
that point. We didn’t go into the specifics of the arrest but anything
that the Defendant said, he’s a party to this.

      THE COURT: This is kind of, you know --

      [Prosecutor]: It was just a response to what -- when he was --
when he was told what he was arrested for, what his response was,
and that’s all I'm asking. I’m not asking for any detailed testimony,
just what his response was.

      [Defense Counsel]: Well, your Honor, this is the first I’ve ever
heard of any statement that my client has made.

       THE COURT: Well, I’ll allow that. But you’re not going any
further with it?

      [Prosecutor]: No, sir. No, sir.

      THE COURT: Okay. All right.

      (Open court)

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            THE COURT: Court overrules the objection.

            You may answer the question.

            Q. (By [Prosecutor]) So what was his response when he was
      asked -- when he was told what he was being arrested for?

            A. It was, “oh, okay.”

             Q. Okay. Now, let me ask you: At any time during his arrest
      when he was being Mirandized or having cuffs put on or anything like
      that, did he ever say anything about a gun being pulled on him,
      whether or not he was a victim of a crime or the assault was -- he was
      -- it was self-defense? Did you ever hear those words come out of his
      mouth?

            A. No, sir, I didn’t.

            Q. Okay. Now, let me ask you when he was -- when the warrant
      was served and he was arrested, was the Defendant armed?

            A. Yes, sir.

            Q. Did he have to be disarmed before he was taken into
      custody?

            A. Yes, sir, he did.

            [Prosecutor]: I’ll pass the witness.

      Colvin testified on his own behalf. He testified, in part, that in two previous

arguments, the complaining witness pointed a loaded firearm at him. Colvin

claimed the choking incident he was on trial for occurred when he put the

complaining witness in a basket hold because his loaded .357 was on the counter

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and he feared for his life. According to Colvin, the complaining witness had her

eye on the gun and reached out her hand towards the gun from a distance of twelve

feet.

        The State developed cross-examination testimony concerning Colvin’s post-

arrest silence, as follows:

              [By Prosecutor] Q. When you were arrested, did you tell the
        police officer that she had pulled a gun on you?

                [Defendant] A. No, sir. I did tell --

                Q. Okay. They indicated --

                A. I did tell the officers that she bit me.

              Q. Okay. They indicated to you that you were being arrested for
        assault, correct?

                A. Yes, sir.

                Q. And they were putting you in handcuffs and taking you
        away?

                A. Yes, sir.

                Q. And you never thought to mention --

              [Defense Counsel]: Your Honor, I would object to this
        statement. Defendant has no burden to make a statement to police. He
        has a Fifth Amendment right against self-incrimination. That right
        cannot be used to incriminate [him].

                [Prosecutor]: Judge, I --

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      THE COURT: That’s overruled.
      Cross-examination.

      Q. (By [Prosecutor]) And at that point when you’re in cuffs and
you’re being taken away and you’ve been told you’re arrested, it
never occurred to you to say, hey, she had a gun; I was trying to -- I
was trying to stop that?

      A. Sir, I’ve been on many arrest scenes; and the first thing you
need to do is shut up when you’ve been arrested.

       Q. Okay. But that never occurred to you to defend yourself and
say, hey, this wasn’t self-defense?

      [Defense Counsel]: Your Honor, we would renew our
objection.

       THE COURT: Objection overruled.

       Q. (By [Prosecutor]) Okay. Now, how long were you in jail?

       A. Six and a half weeks.

       Q. Okay. Six and a half weeks?

       A. Yes, sir.

      Q. Did you ever give a statement to anybody in the jail, any law
enforcement official that you were innocent --

       A. Yes, sir. When I first got in the jail, I -- the booking officer, I
showed him the scar on this arm and said [the Complaining Witness]
did that to me.

       Q. That’s not the same. Obviously, [the Complaining Witness]
did it to you. [The Complaining Witness] doesn’t say she didn’t do it
to you. Everybody said [the Complaining Witness] did it to you.

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             A. Okay.

            Q. Nobody disputes the fact that [the Complaining Witness] bit
      your arm --

             [Defense Counsel]: Your Honor, counsel is testifying.

             THE COURT: Y’all just ask questions.

           Q. (By [Prosecutor]) Okay. So you never asked to speak with
      anybody in the jail to give a statement?

             A. No, sir.

             Q. In the six weeks you were there?

             A. No, sir.

                              Preservation of Error

      As a prerequisite to presenting a complaint for appellate review, the record

must show that the complaint was made to the trial court by a timely request,

objection, or motion that “stated the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the

context[.]” Tex. R. App. P. 33.1(a). To preserve an issue for appellate review, the

complaint on appeal must comport with the objection at trial, and an objection

stating one legal theory may not be used to support a different legal theory on




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appeal. Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998); Broxton v.

State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).

      Issues two and three complain of the admission of evidence concerning

Colvin’s post-arrest silence but the issues fail to comport with an objection made in

the trial. When Deputy Zolman was asked how Colvin responded when he was told

why he was being arrested, Colvin objected, “That’s a statement made in custody,

and he was not -- the record hasn’t reflected he was Mirandized at that point[,]”

and “[t]hat is an inadmissible statement being made as he was in custody.” This

objection complained of unwarned, custodial interrogation in violation of the Fifth

Amendment. See Miranda v. Arizona, 384 U.S. 436, 444-45 (1966) (“Prior to any

questioning, the person must be warned that he has a right to remain silent, that any

statement he does make may be used as evidence against him, and that he has a

right to the presence of an attorney, either retained or appointed.”). When the

prosecutor cross-examined Colvin about his failure to mention that the

complaining witness tried to get his gun, Colvin objected to the question

specifically on Fifth Amendment self-incrimination grounds. The only other

objection made by Colvin in that exchange was an objection that opposing counsel

was testifying.




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      A similar situation occurred in Heidelberg v. State, 144 S.W.3d 535, 537

(Tex. Crim. App. 2004). Defense counsel objected on Fifth Amendment grounds

when the defendant was asked about his willingness to speak to the investigator

and whether he knew a detective was trying to contact him. Id. at 536. Heidelberg

contended on appeal that the trial court erred in allowing the State to refer to his

post-arrest silence in violation of Article I, section 10 of the Texas Constitution. Id.

at 537. The Court of Criminal Appeals held that the complaint was waived. Id. at

542-43. The Court noted there was “no indication in the record that the judge

understood [Heidelberg] was trying to invoke a protection different from the Fifth

Amendment protection he was citing.” Id. at 541. As was the case in Heidelberg,

Colvin invoked the protection of the Fifth Amendment and Miranda but never

mentioned the state constitution or a case that was decided under article I, section

10 of the Texas Constitution.1 We overrule issues two and three because Colvin

failed to preserve error on those grounds. See Tex. R. App. P. 33.1(a).

      1
         Colvin suggests his objection to the prosecutor’s cross-examination differs
from the defendant’s objection in Heidelberg. In Heidelberg, counsel stated,
“Objection, Your Honor. This goes to the Fifth Amendment right, my client’s Fifth
Amendment. He doesn’t have to talk to anybody[,]” and “Objection, Your Honor.
My client – all of this line of questioning goes to the Fifth Amendment. My client
does not have to speak with anyone about it.” 144 S.W.3d at 536. Here, counsel
stated, “Your Honor, I would object to this statement. Defendant has no burden to
make a statement to police. He has a Fifth Amendment right against self-
incrimination. That right cannot be used to incriminate [him].” In Colvin’s case,
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                              Fifth Amendment Issue

      In issue one, Colvin complains the trial court erred in permitting the

prosecutor, over Colvin’s objection, to elicit testimony in violation of Colvin’s

Fifth Amendment right against self-incrimination. The State argues Colvin was not

being interrogated when Deputy Zolman told Colvin why he was being arrested

and Colvin responded, “oh, okay.”

      The State may not use statements elicited through custodial interrogation of

the defendant “unless it demonstrates the use of procedural safeguards effective to

secure the privilege against self-incrimination.” Miranda, 384 U.S. at 444. We

conduct a bifurcated review of a trial court’s ruling on a Miranda-violation claim,

affording almost total deference to the trial court’s rulings on questions of

historical fact and on application of law to fact questions that turn upon credibility

and demeanor, and reviewing de novo the trial court’s rulings on application of law

to fact questions that do not turn upon credibility and demeanor. Alford v. State,

358 S.W.3d 647, 652 (Tex. Crim. App. 2012).

the State was cross-examining Colvin about something that occurred when Colvin
was in custody, but there is no indication in the record that the trial court
understood Colvin’s objection invoked the protection of the Texas Constitution.
See id. at 542-43. Article I, section 10 of the Texas Constitution protects a
defendant from impeachment with his post-arrest, pre-Miranda silence while the
Fifth Amendment protects post-arrest silence made only after the suspect has been
Mirandized. See id. at 537; Sanchez v. State, 707 S.W.2d 575, 579-80 (Tex. Crim.
App. 1986).
                                         10
      The State concedes that Colvin was in custody, but argues his right against

self-incrimination was not violated because Colvin was not being interrogated.

Interrogation includes express questioning and “any words or actions on the part of

the police (other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating response from

the suspect.” Rhode Island v. Innis. 446 U.S. 291, 301 (1980). Offhand remarks,

not designed to elicit any kind of incriminating response, do not constitute

interrogation. Id. at 303; Janecka v. State, 739 S.W.2d 813, 828-29 (Tex. Crim.

App. 1987).

      This case is similar to Earnhart v. State, 582 S.W.2d 444, 448 (Tex. Crim.

App. 1979). In Earnhart, the defendant had been arrested but had not yet received

his Miranda warnings when he went into a bedroom to get a shirt. Id. He picked up

a shirt and remarked that the shirt had blood on it and he wanted to get a clean one.

Id. The trial court sustained the defendant’s objection to testimony concerning the

question and response regarding whether it was his shirt, but the defendant’s

remark about the shirt being bloody was properly admitted because it was a

volunteered statement not made in response to interrogation. Id. Here, Colvin did

not respond when Deputy Zolman asked Colvin if he knew why he was being

arrested. Deputy Zolman’s subsequent statement to Colvin merely informed Colvin

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what he was being arrested for, and was not designed to elicit a response. We

overrule issue one and we affirm the trial court’s judgment.

      AFFIRMED.



                                               ________________________________
                                                       CHARLES KREGER
                                                             Justice

Submitted on September 4, 2015
Opinion Delivered June 15, 2016
Do Not Publish

Before Kreger, Horton, and Johnson, JJ.




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