                  IN THE COURT OF CRIMINAL APPEALS
                              OF TEXAS

                                                NO. PD-0570-11


                                     GENOVEVO SALINAS, Appellant

                                                           v.

                                           THE STATE OF TEXAS


                               ON DISCRETIONARY REVIEW
                         FROM THE FOURTEENTH COURT OF APPEALS
                                    HARRIS COUNTY


      Womack, J., delivered the opinion of the Court, in which Keller, P.J., and Price, Keasler,
Hervey, Cochran, and Alcala, JJ., joined. Johnson, J., dissented. Meyers, J., did not participate.


         The appellant was convicted of murder.1 The Fourteenth Court of Appeals affirmed the

conviction.2 We granted the appellant’s petition for discretionary review on one ground: whether



         1
          The Fourteenth Court of Appeals’s opinion states that the jury found the appellant guilty of two counts of
murder. See Salinas v. State, 2011 W L 903984, 2011 Tex. App. LEXIS 1923 (Tex. App.–Houston [14th Dist.] Mar.
17, 2011). Both parties’ briefs, as well as the clerk’s record, however, indicate that the appellant was found guilty of
one count of murder. See T EX . P EN AL C O D E § 19.02.

         2
             Salinas, 2011 W L 903984, 2011 Tex. App. LEXIS 1923.
                                                                                                      2

the Court of Appeals erred in holding that the Fifth Amendment right against compelled self-

incrimination does not apply to pre-arrest, pre-Miranda3 silence used as substantive evidence of

guilt in cases in which a defendant does not testify. Holding that such silence is admissible, we

will affirm the Court of Appeals’s decision and uphold the appellant’s conviction.

                                             I. BACKGROUND

       Houston police officers discovered two homicide victims on the morning of December

18, 1992. An investigation led to the appellant, and he voluntarily accompanied officers to the

police station for questioning. For approximately one hour, the appellant answered every

question asked. Then, when asked whether shotgun shells found at the crime scene would match

a shotgun found at his home, the appellant remained silent, and, according to the interrogating

officer, demonstrated signs of deception. A ballistics analysis later matched the shotgun with the

casings left at the murder scene. Subsequent investigation led police to a witness who stated that

the appellant had admitted murdering the victims. On March 4, 1993, the appellant was charged

with murder, though police could not locate him at the time.

       After evading arrest for nearly 15 years, the appellant was captured in 2007. His first trial

ended in a mistrial. In the appellant’s second trial, the State sought to introduce evidence of his

silence when he was questioned about the shotgun shells in the 1992 interview. The appellant’s

trial counsel objected to the State’s introduction of this evidence, arguing that the appellant could

“invoke the Fifth Amendment privilege whether he was in custody or not.” The trial court

overruled the objection and allowed the evidence to be introduced. The jury found the appellant

guilty of murder and assessed punishment of twenty years’ imprisonment and a $5,000 fine.


       3
           Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                                                                3

        On appeal to the Fourteenth Court of Appeals, the appellant argued that the trial court

erred in admitting evidence of his pre-arrest, pre-Miranda silence. The Court of Appeals noted

that this issue had not yet been addressed by our Court or the United States Supreme Court, and

that other state courts and federal courts of appeals were divided on whether such silence was

admissible.4 The Court of Appeals sided with those courts holding that it is. Now, in one ground

for review, the appellant argues that the Court of Appeals erred in its holding, citing the decisions

of those courts that have held that such silence was inadmissible. The State responds that the

Court of Appeals correctly held that his silence was admissible, citing the decisions of those

courts that have held so.

                                                 II. DISCUSSION

        The Fifth Amendment to the United States Constitution states, “No person … shall be

compelled in any criminal case to be a witness against himself.”5 The United States Supreme

Court has interpreted this as prohibiting the State from commenting on a defendant’s refusal to

testify at trial.6 A defendant’s silence before trial, however, is considerably less protected from

being commented upon at trial. We read the relevant caselaw as holding that the level of

protection provided by the Fifth Amendment to pre-trial silence varies according to several

factors: (1) whether the defendant was in police custody; (2) whether he was informed of his

Miranda rights; and (3) whether evidence of such silence is offered as substantive evidence of

guilt or elicited from a testifying defendant.

        4
          Salinas, 2011 W L 903984, 2011 Tex. App. LEXIS 1923; see also State v. Lee, 15 S.W .3d 921, 924 n.5
(Tex. Cr. App. 2000).

        5
            U.S. C O N ST . amend. V.

        6
            Griffin v. California, 380 U.S. 609, 614 (1965).
                                                                                                                     4

        The Supreme Court has held that a defendant’s Fifth Amendment right against compelled

self-incrimination is violated if the State is allowed to impeach the defendant’s testimony by

using his post-arrest, post-Miranda silence.7 The State does not violate a defendant’s Fifth

Amendment rights, however, by cross-examining a defendant as to post-arrest, pre-Miranda

silence when a defendant chooses to testify.8 Furthermore, the Supreme Court has held that pre-

arrest, pre-Miranda silence can be used to impeach a defendant who testifies.9

        Neither the Supreme Court nor our Court has decided whether pre-arrest, pre-

Miranda silence (which is at issue here) is admissible evidence against a non-testifying

defendant.10 As the Fourteenth Court of Appeals noted, the courts that have weighed in on the

issue are split.11 Those courts holding such silence to be admissible, guided by Justice Stevens’s

concurring opinion in Jenkins v. Anderson,12 generally reason that the Fifth Amendment right

against compulsory self-incrimination is “irrelevant to a citizen’s decision to remain silent when




        7
             Doyle v. Ohio, 426 U.S. 610 (1976).

        8
             Fletcher v. Weir, 455 U.S. 603 (1982); but see also Sanchez v. State, 707 S.W .2d 575, 579-80 (Tex. Cr.
App. 1986) (plurality opinion) (holding that the Texas Constitution provides more expansive protection to a
defendant in this circumstance; specifically, that once a defendant has been arrested – regardless of whether he has
received his Miranda warnings – his silence may not be used against him for any purpose, even impeachment. (citing
T EX . C O N ST . art. I, § 10)).

        9
             See Jenkins v. Anderson, 447 U.S. 231 (1980); Cisneros v. State, 692 S.W .2d 78 (Tex. Cr. App. 1985).

        10
           At least one notable Texas treatise has presumed that it is. See 41 George E. Dix & John M. Schmolesky,
Texas Practice: Criminal Practice and Procedure § 16.190 (3d ed. 2011) (“[A] defendant testifying at trial may be
cross-examined concerning his failure to make exculpatory claims to police officers in prearrest circumstances in
which a defendant would be expected to do so. Presumably, such matters could also be proved as evidence of the
accused’s guilt.”).

        11
          See Salinas, 2011 Tex. App. LEXIS 1923, n.2 (citing State v. Lee, 15 S.W .3d 921, 924 n.5 (Tex. Cr.
App. 2000), our earlier opinion in which we discussed, but did not decide, this issue).

        12
             Jenkins, 447 U.S., at 241 (Stevens, J., concurring).
                                                                                                                         5

he is under no official compulsion to speak.”13 Those courts holding such silence to be

inadmissible view the Fifth Amendment right more expansively, reasoning that “once a

defendant invokes his right to remain silent, it is impermissible for the prosecution to refer to any

Fifth Amendment rights which [the] defendant exercised.”14 Nearly all of the courts that have

addressed this issue have noted the conspicuous split and the lack of guidance from the Supreme

Court.

         In determining that the appellant’s silence could be admitted as substantive evidence of

guilt, the Court of Appeals – citing the decisions of many state and federal courts15 – pointed to

the reasoning in Justice Stevens’s Jenkins concurrence.16 We agree with the Court of Appeals.17

         The plain language of the Fifth Amendment protects a defendant from compelled self-

incrimination.18 In pre-arrest, pre-Miranda circumstances, a suspect’s interaction with police

officers is not compelled. Thus, the Fifth Amendment right against compulsory self-

incrimination is “simply irrelevant to a citizen’s decision to remain silent when he is under no



         13
              See United States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir. 1998) (citing Jenkins, 447 U.S., at 241.).

         14
          See Combs v. Coyle, 205 F.3d 269, 283 (6th Cir. 2000) (citing United States v. Burson, 952 F.2d 1196,
1201 (10th Cir. 1991).

         15
            See Oplinger, 150 F.3d, at 1066-67 (9th Cir. 1998), overruled on other grounds, United States v.
Contreras, 593 F.3d 1135 (9th Cir. 2010) (per curiam); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996);
United States v. Rivera, 944 F.2d 1563, 1568 (11th Cir. 1991); State v. Leecan, 504 A.2d 480, 484 (Conn. 1986);
Key-El v. State, 709 A.2d 1305, 1310-11 (Md. 1998), overruled by Weitzel v. State, 863 A.2d 999, 1002 (Md. 2004);
State v. Masslon, 746 S.W .2d 618, 626 (Mo. Ct. App. 1988); State v. Dreher, 695 A.2d 672, 705 (N.J. App. Div.
1997), disapproved by State v. Brown, 919 A.2d 107, 116 n.1 (N.J. 2007); State v. Helgeson, 303 N.W .2d 342,
348-49 (N.D. 1981).

         16
              Jenkins, 447 U.S., at 241 (Stevens, J., concurring).

         17
           W e recognize that the facts of Jenkins differ from the instant case. W e nonetheless find the reasoning in
Justice Stevens’ concurrence to be relevant and persuasive.

         18
              U.S. C O N ST . amend. V.
                                                                                                                        6

official compulsion to speak.”19

                                               III. CONCLUSION

         We hold that pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment

right against compelled self-incrimination, and that prosecutors may comment on such silence

regardless of whether a defendant testifies. The trial court did not err in allowing the State to do

just that. We affirm the appellant’s conviction.


Delivered April 25, 2012.
Publish.




         19
            Jenkins, 447 U.S., at 241 (Stevens, J., concurring); see also Jenkins, 447 U.S. at 250 n.4 (Marshall, J.,
dissenting) (“Of course the voluntary decision to remain silent in the absence of any official compulsion does not
‘raise any issue under the Fifth Amendment’”).
