VII.       STATEMENTS

Chapter 28.       Statements

              § 28:1    Involuntary statements—Generally

• Texas Codes and Statutes
  • Texas Penal Code § 37.01(3)
    • (3)  "Statement" means any representation of fact.

CCP Art. 38.21

• • • A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.

• • CCP Art. 38.22, Sec. 2(a)(2)
    • No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that…the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that: (1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; (2) any statement he makes may be used as evidence against him in court…
      
  • CCP Art. 38.23
    • (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.  In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
    • (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

• Supreme Court of US
  • Colorado v. Connelly (479 U.S. 157)
    • Held that voluntariness of waiver of privilege of Fifth Amendment depends upon absence of police overreaching not on “free choice” in any broader sense of the term.
    • Even when there is a causal connection between police misconduct and defendant's confession, it does not automatically follow that there has been a violation of due process.

• • Arizona v. Fulminate (499 U.S. 279)
    • Determination regarding voluntariness of confession must be viewed in totality of the circumstance.
    • Although state court's factual findings are normally entitled to great deference, ultimate issue of voluntariness of defendant's confession is legal question requiring independent federal determination.

• Texas Court of Criminal Appeals
  • Creager v. State (952 S.W.2d 852)
    • A warning to a suspect before interrogation that a statement could be used “for or against” the suspect is an impropriety that, of itself, can require that the statement be held inadmissible. The rule of the inadmissibility of a statement made after a warning that it could be used “for or against” a suspect has a statutory basis. The warning now appears in Code of Criminal Procedure Article 38.22, § 2(a)(1), which requires that to be admissible a statement of an accused made as a result of custodial interrogation 855 must show that the suspect was warned “that any statement he makes may be used against him at his trial.” The requirement was first enacted in Article 662 of the Code of Criminal Procedure of 1856, which excluded the statement of an accused made while in custody unless the accused was “first cautioned that it may be used against him.”
    • The totality of the circumstances under which the statement was obtained is used to determine whether the statement was voluntary or not.

• • Rayford v. State (423 S.W.2d 300)
    • Held that defendant's oral confession to armed robbery was admissible where defendant made statement voluntarily and was warned of his right to remain silent, that any statement given him might be used against him and that he was entitled to have counsel.

• • Ramirez v. State (2007 WL 4375936 (Tex.Crim.App.,2007)
    • held that defendant's statement to police was knowing and voluntary
    • Capital murder defendant's statement to police was knowing and voluntary; police officer read defendant his rights before he was interviewed, which defendant indicated he understood and he agreed to waive his rights and speak with officer, officer did not observe any signs that defendant was intoxicated, and defendant did not complain of being tired

• • State v. Terrazas (4 S.W. 3d 720)
    • Overruled Nenno v. State (970 S.W.2d 549) statute that sets forth procedure for pretrial litigation of voluntariness of statements applies to noncustodial, as well as custodial, statements.
    • When a defendant presents evidence raising a question as to the voluntariness of her confession, the prosecution must controvert that evidence and prove voluntariness by a preponderance of the evidence; however, the prosecution is not put to this burden unless a defendant presents evidence that raises a voluntariness question.
    • Defendant's noncustodial statement was not rendered involuntary by fact that government agent told defendant "what had to be" in that statement.

• Houston
  • Galloway v. State (778 S.W.2d 110)
    • held that two oral statements made by defendant to the arresting officer were admissible.
    • Defendant's prearrest statement to police officer, that he had “been drinking a lot,” did not violate Miranda or the confession statute; defendant's case involved routine traffic stop, and there was nothing in record to suggest that any police officer would view conduct of police officer in question as “interrogation.”

§ 28:2    --Involuntary statements resulting from mental condition/intoxication

Supreme Court of the United States

• Colorado v. Connelly, 479 U.S. 157 (1986)
•  Absent police conduct causally related to confession, there is no basis for concluding that any state actor has deprived criminal defendant of due process of law (14th amendment DPC)
•  Defendant’s mental condition, by itself and apart from its relation to official coercion, should never dispose of inquiry into constitutional involuntariness; even when there is a causal connection, it does not automatically follow that there has been a violation of due process (14th DPC)
•  Admissibility of statement rendered by one who is mentally ill is a matter to be governed by evidentiary laws of the forum and not by due process.
•  Coercive police activity is necessary predicate to finding that confession is not voluntary within meaning of due process clause.
•  Statements made by Defendant when he approached police officer and stated that he wanted to confess to murder and then did so after receiving his Miranda rights could be admitted without violation of due process regardless of defendant’s mental health.

• United States Court of Appeals, 5th Circuit

• Jurek v. Estelle, 593 F.2d 672 (C.A.Tex., 1979)
• Written confessions, which were admitted into evidence at trial and were instrumental in convicting petitioner and causing him to be sentenced to death, were involuntarily given, and thus petitioner was entitled to new trial
• Where defendant's verbal intelligence was limited and statements used against defendant were apparently not his own words, where confessions were fruits of extraordinary series of actions by police and prosecutors, involving delays, long trips, questioning concerning polygraph results, and failure to appoint defendant an attorney despite his request for one, and where, although police frequently warned defendant of his rights, it was not clear that defendant could have understood warnings given, written confessions were involuntarily given and petitioner was entitled to new trial. U.S.C.A.Const. Amend. 5

Texas Court of Criminal Appeals

Jones v. State, 944 S.W.2d 642 (Tex.Cr.App., 1996)

• The trial court did not err by overruling appellant’s motion to suppress and admitting Defendant’s confession into evidence
•  Intoxication, while relevant, does not render confession involuntary per se; question becomes whether defendant's intoxication rendered him incapable of making independent, informed decision to confess.
• In giving the rule regarding statements resulting from intoxication, cites Nichols v. State, 754 S.W.2d 185 (Tex.Cr.App., 1988), a case that was reversed in part; this portion of the case has not been overturned: Intoxication, while relevant, is not per se determinative of voluntariness of confession; central question is extent to which defendant was deprived of his faculties due to intoxication; if intoxication rendered defendant incapable to make an independent, informed choice of free will, then his confession was given involuntarily.  

§ 28:3    --Involuntary statements made to private individual

• Constitution
  • Fifth Amendment
    • …nor shall be compelled in any criminal case to be a witness against himself

• • Sixth Amendment
    • In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
• Supreme Court of US
  • Colorado v. Connelly (479 U.S. 157)
    • Absent police conduct causally related to confession, there is no basis for concluding that any state actor has deprived criminal defendant of due process of law.
    • Even the most outrageous behavior by private party seeking to secure evidence against defendant does not make that evidence inadmissible under due process clause.

• • Massiah v. US (377 U.S. 201)
    • Held that defendant's Fifth and Sixth Amendment rights were violated by use in evidence against him of incriminating statements which he made to co-defendant after their indictment and their release on bail and in absence of defendant's retained counsel and which were overheard on radio by government agent without defendant's knowledge that co-defendant had decided to cooperate with government and had permitted agent to install radio transmitter under front seat of co-defendant's automobile.
    • To find a Sixth Amendment violation, the statements in question must have been (1) “deliberately elicited” (2) by a “government agent.”

• • Manns v. State (122 S.W.3d 171)
    • Held that, as a matter of first impression, defendant’s fellow inmate was not an agent of the state when he conversed with defendant, and, thus, there was no violation of the Sixth Amendment right to counsel when defendant made incriminating statement.
    • The fellow inmate was not an agent of the state because no promise of reward was made here, and the DA’s office made no attempt to encourage the further gathering of info.

• • Wong Sun v. U.S. (371 U.S. 471)
    • Held, inter alia, that rule which regulates use of out-of-court statements is one of admissibility, rather than simply of weight, of evidence, and codefendant's statement which will not suffice to convict may not serve to corroborate.
    • We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’

• • Arizona v. Fulminate (499 U.S. 279)
    • In determining voluntariness of confession, finding of coercion need not depend upon actual violence by government agent; credible threat is sufficient.

• San Antonio
  • State v. Hernandez (842 S.W.2d 306)
    • Held that… (2) reporter was not “state agent,” within meaning of United States Supreme Court Massiah decision, for purposes of Sixth Amendment right to counsel; (3) jail officials' facilitation of contact between defendant and reporter did not trigger Massiah doctrine; and (4) defendant's statements to reporter were voluntary.
    • Sixth Amendment right to counsel does not attach until after initiation of formal charges; however, right does attach at initiation of adversary judicial criminal proceedings whether by way of formal charges, preliminary hearing, indictment, information or arraignment.
    • To find violation of Sixth Amendment right to counsel under United States Supreme Court Massiah doctrine, statements in question must have been deliberately elicited by government agent.

• • Esquivael v. State (2003 WL 21697227 (Tex.App.-San Antonio)
    • Held that defendant's conversation with criminal investigator for DA’s office did not result in an involuntary statement.
    • Under the totality of the circumstances, defendant's conversation with criminal investigator for district attorney's office did not result in an involuntary statement; defendant voluntarily called investigator and arranged to come to investigator's office “to find out where the case was at,” and at the end of the conversation, investigator reviewed with defendant the fact that defendant had been under no obligation to come to the office, he had not been read his rights, and he was free to leave at any time, and because investigator was a party to the taped conversation and knew the conversation was being taped, defendant's statement was not rendered inadmissible merely because defendant was unaware of the recording.

§ 28:4 --Involuntary statements may not be used to impeach

• Supreme Court of the United States
• Mincey v. Arizona, 437 U.S. 385 (1978)
•  statements made by defendant in a hospital, while in great pain, while depressed almost to the point of coma, and while he was encumbered by tubes, needles, and breathing apparatus were involuntary and could not be used against him, either as direct evidence or for impeachment purposes.
•  Any use in a criminal trial of a defendant's involuntary statement is a denial of due process. (US – 5th Amendment)

 § 28:5 Hearings regarding the voluntariness of statements

• Supreme Court of US
• Jackson v. Denno, 378 U.S. 368 (1964)
•  Conviction overturned; the New York procedure did not provide a reliable determination of the voluntariness of a confession offered in evidence at trial and did not withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment.
•  Defendant has constitutional right at some stage in proceedings to object to use of confession and to have fair hearing and reliable determination on issue of voluntariness, determination influenced by truth or falsity of confession. (U.S.C.A. Const. Amend. 14)
•  State procedures with respect to confessions must be fully adequate to insure reasonable and clear cut determination of voluntariness, including resolution of disputed facts upon which issue may depend. (U.S.C.A. Const. Amend. 14)
•  States are free to allocate functions between judge and jury as they see fit with respect to determination of voluntariness of confessions. (U.S.C.A. Const. Amend. 14)

§ 28:6: Applicability of the harmless error doctrine

• Texas Code of Criminal Procedure
• CCP 38.22 Sec. 6
• In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause. Such order shall not be exhibited to the jury nor the finding thereof made known to the jury in any manner. Upon the finding by the judge as a matter of law and fact that the statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statement was voluntarily made, the jury shall not consider such statement for any purpose nor any evidence obtained as a result thereof. In any case where a motion to suppress the statement has been filed and evidence has been submitted to the court on this issue, the court within its discretion may reconsider such evidence in his finding that the statement was voluntarily made and the same evidence submitted to the court at the hearing on the motion to suppress shall be made a part of the record the same as if it were being presented at the time of trial. However, the state or the defendant shall be entitled to present any new evidence on the issue of the voluntariness of the statement prior to the court's final ruling and order stating its findings.
  • Court of Criminal Appeals of Texas
  • Wicker v. State, 740 S.W.2d 779 (Tex.Cr.App., 1987)
  •  Issue of voluntariness of defendant's confession to sexual assault was raised at trial by defendant's counsel's objection, prior to introduction of confession, that “the statement, whatever statement was taken, was not voluntary,” and, therefore, trial court was required to file findings of fact and conclusions of law as to voluntariness of confession.
  • Even though defendant neither testifies nor offers any evidence on voluntariness of statement or confession, trial objection by counsel is sufficient to raise issue and it is error for trial court not to resolve that issue.
  • Statute requiring that trial court file specific findings of fact and conclusions of law as to voluntariness of defendant's confession prior to its admission applies not only to jury trials, but to court trials as well.
  • Supreme Court of the US
    • Fahy v. State of Connecticut (375 U.S. 85)
      • It is permissible for defendant to seek to show in state court that illegally seized evidence induced his admissions and confession.
  • • Chapman v. California (386 U.S. 18)
      • Held that before a federal constitutional error can be held harmless the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt, and that comment on failure of defendants to testify was not harmless error where state prosecutor's argument and trial judge's instruction to jury continuously and repeatedly impressed jury that from refusal of defendants to testify, to all intents and purposes, the inferences from facts in evidence had to be drawn in state's favor, and where state failed to demonstrate beyond reasonable doubt that such comments and instructions did not contribute to defendants' convictions.
      • Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

• • Arizona v. Fulminate (499 U.S. 279)
    • Held that defendant's confession was coerced; error in admission of the confession was not harmless; and harmless error rule applied to admission of involuntary confessions.
    • “Trial error” is error which occurred during presentation of the case to the jury and may therefore be quantitatively assessed in context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.
    • Admission of an involuntary confession is subject to harmless-error analysis.
    • Admission of involuntary confession is a “trial error” similar in degree and kind to erroneous admission of other evidence, and therefore evidentiary impact of involuntary confession and its effect on composition of record is subject to harmless-error analysis.
    • Admission of involuntary confession is not the type of error which “transcends the criminal process,” so as to make harmless-error review improper.
    • In determining whether admission of a defendant's confession was harmless error, it was impossible to create a meaningful distinction between confessions elicited in violation of the defendant's Sixth Amendment right to counsel and those in violation of his due process rights under the Fourteenth Amendment.
    • Texas Court of Criminal Appeals
      • Connor v. State (773 S.W.2d 13)
        • Held that error in admitting an oral confession obtained by threatened physically coercive tactics on the part of an agent of the police is not subject to a harmless error analysis.
        • Error in admitting an oral confession obtained by threatened physically coercive tactics on the part of an agent of the police is not subject to a harmless error analysis.
        • Error in admitting an oral confession obtained by threatened physically coercive tactics on the part of an agent of the police is not subject to a harmless error analysis.

§ 28:7                  Language barrier results in suppression

• Texas Statutes, Codes and Rules
  • Texas Code of Criminal Procedure 38.22, Sec. 3
    • (a) No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:
      (1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;
      (2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;
      (3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;
      (4) all voices on the recording are identified; and
      (5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.
      
    • (b) Every electronic recording of any statement made by an accused during a custodial interrogation must be preserved until such time as the defendant's conviction for any offense relating thereto is final, all direct appeals therefrom are exhausted, or the prosecution of such offenses is barred by law.
      
    • (c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.
      
    • (d) If the accused is a deaf person, the accused's statement under Section 2 or Section 3(a) of this article is not admissible against the accused unless the warning in Section 2 of this article is interpreted to the deaf person by an interpreter who is qualified and sworn as provided in Article 38.31 of this code.
      
    • (e) The courts of this state shall strictly construe Subsection (a) of this section and may not interpret Subsection (a) as making admissible a statement unless all requirements of the subsection have been satisfied by the state, except that:
      (1) only voices that are material are identified; and
      (2) the accused was given the warning in Subsection (a) of Section 2 above or its fully effective equivalent. 

• United States Court of Appeals, 5th Circuit
  • U.S. v. Martinez-Gaytan, 213 F.3d 890 (C.A.5 [Tex.], 2000)
    • Court held that absence of inspector who translated Spanish-speaking defendant's confession into English, and lack of any other witness who heard and understood untranslated confession, at hearing on defendant's motion to suppress confession rendered only English-speaking federal agent's testimony about confession unreliable hearsay, where defendant asserted that what agent claimed to have heard differed in some respects from what defendant actually said, government supplied the translator, translator's Spanish fluency could not be determined, and defendant refused to sign confession prepared by translator.
  • U.S. v. Broussard, 80 F.3d 1025 (C.A.5 [Tex.], 1996)
    • Spanish-speaking defendant's incriminating statements to police officer during officers' search of defendant's residence were voluntary, where defendant was immediately informed of his Miranda rights in Spanish, given opportunity to read Spanish Miranda warning card, and was not promised leniency in exchange for his statements. U.S.C.A. Const.Amend. 5.

• Court of Criminal Appeals of Texas
  • Engledow v. State, 407 S.W.2d 789 (Tex.Cr.App., 1966)
    • Totality of circumstances surrounding defendant's confession to rape of his granddaughter, including his age, his poor vision, fact that he appeared to be perturbed and distraught while making and before signing confession and his claim that he was ill did not render confession inadmissible as a matter of law.

§ 28:8                  The use of defendant's  pre-arrest silence

• Texas Statutes and Codes
  • CCP Art. 15.22
    • A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.

• • CCP 38.38
    • Evidence that a person has contacted or retained an attorney is not admissible on the issue of whether the person committed a criminal offense. In a criminal case, neither the judge nor the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case.

• Supreme Court of US
  • Doyle v. Ohio (426 U.S. 610)
    • Held that although the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings, that where defendants, who were given the Miranda warnings on arrest, did not complain to arresting officer that they had been framed but gave their exculpatory story for first time at trial, prosecutor's cross-examining defendants as to why they had not told the frame-up story on arrest violated due process and that cross-examination as to defendants' postarrest silence was not justified on grounds of necessity, i. e., that discrepancy gave rise to inference that story was fabricated and that such cross-examination was necessary in order to present to the jury all information relevant to the truth of such story.
    • A defendant in a criminal trial who testifies may not be impeached by his silence at the time of his arrest and after receiving Miranda warnings.
    • Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982) modified Doyle by allowing cross-examination by the State in absence of the sort of assurances embodied in the Miranda warnings (pre-Miranda warnings).
    • Doyle not followed on State grounds by Fort Worth Court of Appeals  case of Anderson v. State (758 S.W.2d 676 (Tex.App.-Fort Worth)).  A defendant may not be impeached through the use of a postarrest, pre-Miranda silence under Texas law since such impeachment violates the defendant's right to be free from compelled self-incrimination, and also since such impeachment is improper from an evidentiary standpoint. Sanchez, 707 S.W.2d at 582 (declining to adopt the federal standards for postarrest, pre-Miranda silence as set forth in Doyle and Fletcher ).

• • Jenkins v. Anderson (447 U.S. 231)
    • Held that (1) the Fifth Amendment, as applied to the states through the Fourteenth Amendment, is not violated by the use of prearrest silence to impeach a criminal defendant's credibility; impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial; (2) use of prearrest silence impeach a defendant's credibility does not deny him the fundamental fairness guaranteed by the Fourteenth Amendment; but (3) a state court is not required to allow impeachment through the use of prearrest silence; each jurisdiction is free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial.
    • Testifying defendant can be impeached on cross-examination by pointing out pre-arrest silence
    • While the Fifth Amendment prevents the prosecution from commenting on the silence of a defendant who asserts the right to remain silent during is criminal trial, it is not violated when a defendant who testifies in his own defense is impeached with his prior silence.
    • Use of prearrest silence to impeach a defendant's credibility does not deny him the fundamental fairness guaranteed by the Fourteenth Amendment.
    • A state court is not required to allow impeachment through the use of prearrest silence; each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.
    • Prior silence cannot be used for impeachment where silence is not robative of a defendant's credibility and where prejudice to the defendant might result.
    • Fifth Amendment, as applied to the states through the Fourteenth Amendment, is not violated by the use of prearrest silence to impeach a criminal defendant's credibility; impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial and does not deny him the fundamental fairness guaranteed by the 14th Amendment. U.S.C.A.Const. Amends. 5, 14.

• Texas Court of Criminal Appeals
  • Sanchez v. State (707 S.W.2 575)
    • Held that defendant's postarrest, pre- Miranda silence could not be used against him at trial.
    • The Olson case and its progeny indicate that in some instances the Texas and federal privileges against self-incrimination are co-extensive. As stated in Olson, supra 484 S.W.2d at 762: “As to the outer reaches of ‘due process' or ‘self-incrimination,’ we give great weight to the reasonings and holdings of the United States Supreme Court. Nevertheless, as to the true scope of the Texas Constitution, we must ultimately follow our own lights.”
    • With regard to the use of post-arrest, pre- Miranda silence against the accused, however, we cannot equate the two privileges and yet accord the accused his rights as already set down by prior state caselaw.
    • The United States Supreme Court presented an example of federal constitutional prohibitions in Doyle. The Court held that a defendant could not be impeached concerning his failure to relate exculpatory matters to officers after he had been arrested and after he had been advised of his Miranda warnings. The Court based its decision upon two factors. First, since the required Miranda warnings are a prophylactic means of safeguarding an arrestee's Fifth Amendment rights, silence in the wake of these warnings may be nothing more than the arrestee's exercise of these rights. Second, inherent in the Miranda warnings is an implicit assurance that an arrestee's silence will not be used against him in violation of due process.  Thus, impeachment of an arrestee by the use of post-arrest, post- Miranda silence violates the arrestee's privilege against self-incrimination and his right to due process under the federal constitution. 

• • Cisneros v. State, 692 S.W.2d 78 (Tex.Cr.App., 1983)
    •  Prior silence of witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination.
    •  Questions on cross-examination of defendant about defendant bringing up his self-defense claim for first time in courtroom inquired only into defendant's prearrest silence and not any postarrest silence, and questions did not infringe on defendant's federal and state constitutional rights. U.S.C.A. Const.Amends. 5, 14; Vernon's Ann.Texas Const. Art. 1, §§ 10, 19; Vernon's Ann.Texas C.C.P. arts. 1.04, 1.05, 38.08. 

• • Turner v. State, 719 S.W.2d 190 (Tex.Cr.App., 1986)
    •  Reversed appellate court holding and remanded to consider other points of error; prosecutor was properly permitted to impeach defendant through prearrest statements which failed to mention alibi that was used as defense at trial. 

• • Ex parte Lewis (219 S.W.3d 335)
    • The Court determined that the appropriateness of the type of comment at issue--on pre-arrest, pre-Miranda silence--was a question of first impression in Texas and was unsettled in the federal system.
    • Overruled State v. Lee (15 S.W.3d 921) for other reasons.

• • State v. Lee (15 S.W.3d 921)
    • Defendant's prearrest, pre- Miranda statement to police officer that he was not interested in talking about charges against him and to call his attorney was statement of desire to remain silent, rather than invocation of right to counsel, and thus prosecutor's comment on defendant's statement did not violate article prohibiting state to comment on fact that defendant contacted or retained attorney.  
  Franklin v. State (606 S.W.2d 818)

• • • It is a general rule of evidence that the prior silence of a witness as to a fact to which he has testified, where such silence occurred under circumstances in which he would be expected to speak out, may be used to impeach the witness during cross-examination.
  Ayers v. State (606 S.W.2d 936)
  • • Held that the prosecutor's cross-examination and argument in this case were proper to test the credibility of appellant's testimony. The questions and argument did not violate appellant's right against self-incrimination.
    • Appellant's statement to his daughter that he shot Hammett when Hammett had his hands in his lap cannot be reconciled with appellant's testimony that he acted in self-defense. Moreover, appellant's failure to mention in his pre-arrest statements that he blacked out or acted in self-defense is inconsistent with his assertion of those defenses at trial. Had appellant blacked out or acted in self-defense it would have been only natural for him to say so when he made the pre-arrest statements. His failure to assert those facts amounted in effect to an assertion of the non-existence of those facts.
    • When appellant altered his story at trial, the prosecutor properly could test appellant's credibility by pointing out the inconsistencies between appellant's testimony and his pre-trial statements.
    • Any silence on appellant's part with respect to acting in self-defense or blacking out was not the product of governmental assurances of his right to remain silent.

• Fort Worth
  • Anderson v. State (758 S.W.2d 676)
    • A defendant may not be impeached through the use of a postarrest, pre-Miranda silence under Texas law since such impeachment violates the defendant's right to be free from compelled self-incrimination, and also since such impeachment is improper from an evidentiary standpoint. Sanchez, 707 S.W.2d at 582 (declining to adopt the federal standards for postarrest, pre-Miranda silence as set forth in Doyle and Fletcher ).

 Dallas

• • Milson v. State (2008 WL 82242 (Tex.App.-Dallas)
    • Neither the Texas Court of Criminal Appeals nor the United States Supreme Court has addressed the admissibility of a defendant's pre-arrest silence where the Δ does not testify at trial.

• • West v. State (666 S.W.2d 545)
    • Prosecutor’s comments during argument respecting defendant's prearrest silence were not improper where alibi asserted by defendant on cross0examination was not mentioned to police prior to arrest.
    • The State has a right to comment on a defendant's pre-arrest silence.
    •  Since no governmental inducement exists to remain silent in the pre-arrest context, no unfairness exists in using the defendant’s silence.