Opinion issued November 22, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-05-00158-CR
PAUL EDWARD WYBORNY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1013939
DISSENTING OPINION
I agree with the majority that the trial court erred in overruling appellant’s objection to the prosecutor’s comment on his post-arrest silence. However, I believe the comment was harmless. Therefore, I dissent. I would affirm the judgment of the trial court.
Standard of Review of Harmful Constitutional Error
On June 24, 2004, appellant and his girlfriend, Sabrina, went to a bar in Harris County, Texas called “Uncle Albert’s.” While playing a game of pool, the two came into contact with Rene Rodriguez. All three were served alcohol by Jennifer Bissell. Appellant, Rodriguez, and Bissell testified that a dispute arose between appellant and Patrick Axtell, another patron in the bar. They testified that appellant struck Axtell with his hand. The witnesses disagreed, however, as to whether Axtell initiated the fight at the bar, how many times appellant struck Axtell, and whether appellant was acting in self-defense when he struck Axtell.
Appellant testified that he was playing pool when he accidentally bumped Axtell with the pool cue while Axtell was walking behind him. Axtell called him a “son of a bitch” and walked to the other side of the bar. The two men did not make any further contact with one another until appellant and Sabrina were leaving the bar for the evening.
Appellant testified that Sabrina was paying their bill when he started to walk toward the door. As appellant approached him, Axtell “flipped off” appellant. Appellant testified that he looked behind him to see if the obscene gesture was directed toward someone else. He turned back around, and Axtell said, “I’ll break your face” and “took a swing” at appellant’s nose.
I agree with the majority that the trial court’s failure to sustain appellant’s objection to the State’s attempt to impeach appellant with his post-arrest silence as to his self-defense theory was constitutional error that resulted in a violation of appellant’s right to remain silent under Article I, Section 10 of the Texas Constitution. See Tex. Const. art. I, § 10. Therefore, Texas Rule of Appellate Procedure 44.2(a) applies. Texas Rule of Appellate Procedure 44.2(a) requires reversal in constitutional error cases “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a). In examining the record to assess harm, we consider: (1) the source and nature of the error; (2) the extent to which the State emphasized it; (3) the weight a juror would probably place on it; and (4) whether declaring the error harmless would encourage the State to repeat it with impunity. Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995). I would hold that the error was harmless under the Dinkins factors.
(1) Source of the error
The source of the error was the State’s single question about appellant’s post-arrest silence as to his claim of self-defense prior to appellant’s counsel’s objection and its single repetition of the question after the objection was overruled.
(2) Extent to which the State emphasized the error
There was no other mention of appellant’s post-arrest silence, so this evidence was not strongly emphasized by the State.
(3) Weight a juror would probably place on appellant’s post-arrest silence
In applying the harmless error rule, we are required to “calculate as much as possible the probable impact of the error on the jury in light of the existence of the other evidence.” Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989). “If overwhelming evidence dissipates the error’s effect upon the jury’s function in determining the facts so that it did not contribute to the verdict then the error is harmless.” Id.
As the majority states, this case turned on the credibility of the witnesses, an issue exclusively within the province of the jury. Three witnesses, including appellant, testified to the events surrounding Axtell’s death.
Appellant testified that, after words were exchanged between them, Axtell said “I’ve got something for you” and was reaching into his back pocket when appellant hit him in the face, knocking him to the floor. Appellant, thinking that Axtell had “a knife or small pistol or something,” straddled Axtell with one knee on the arm with which Axtell was reaching into his pocket and his other knee on Axtell’s chest. Appellant testified that Axtell then hit him in the ribs, and appellant responded with three quick hits to Axtell’s face. Appellant said that he “decided [that it] wasn’t a good place to be on top of him because [he] was still vulnerable if [Axtell] had a weapon,” so he got off of Axtell and grabbed a nearby pool cue “for [his] defense only.”
Rodriguez testified that appellant struck Axtell once while both men were still standing and three more times after Axtell hit the floor. Rodriguez noticed that Axtell “was out” and “seemed defenseless,” so he intervened and pushed appellant off of Axtell. As he was pushing appellant back, appellant grabbed the pool cue. Rodriguez testified that appellant appeared ready to hit Axtell with the pool cue and probably would have done so if he had not stepped in. He did not see Axtell take a swing at appellant, and he did not see him raise his hands to defend himself against appellant’s first punch.
Bissell testified that she heard a brief verbal exchange between appellant and Axtell prior to the fight. She saw appellant hit Axtell twice with his fists before he fell to the ground, and she saw appellant hit Axtell “three or four more times” after that. She further testified that after Axtell hit the floor she could not see him move and that she saw appellant with the pool cue.
Nobody but appellant testified that Axtell was capable of attacking appellant or even defending himself from appellant’s blows from the time appellant hit him in the face and knocked him to the floor until he died. Not even appellant disputes the evidence that appellant hit Axtell in the face with his fists, dropping him to the floor, then beat him to death while he lay on the floor pinned down by appellant. Nor does appellant deny that after he felt himself sufficiently unthreatened to get off of Axtell, he grabbed a pool cue, but was restrained from using it. The only evidence that supports appellant’s self-defense theory is his own testimony as to the subjective threat he perceived from Axtell. I would hold, therefore, that the jury was well within its reasonable discretion in rejecting appellant’s self-defense theory and convicting him of murder.
Given appellant’s full development of his self-defense theory at trial and the nevertheless overwhelming evidence that appellant beat a prone man to death with his fists after pinning him down on the ground, it is reasonable to infer that a jury would place only negligible weight on the State’s comment on appellant’s post-arrest silence in determining his guilt.
(4) Encouragement to the State to repeat the error
There is nothing to suggest that the State would be encouraged to repeat its reference to appellant’s post-arrest silence in order to influence the jury’s determination of guilt. The only possible result of the State’s repetition of the error of commenting on the defendant’s post-arrest silence on remand in this case, or in a similar future case, would be to provoke a second appeal and yet another potential retrial of a case in which the only evidence of self-defense is the appellant’s own subjective appreciation of a threat from a person who, on the basis of overwhelming evidence, is in no position to threaten him and in which the evidence of guilt is likewise overwhelming. There is, thus, no rational incentive for the State to repeat the error.
Conclusion
I would hold that the State’s reference to appellant’s post-arrest silence was harmless. I would affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Nuchia, Keyes, and Hanks.
Publish. Tex. R. App. P. 47.2(b).
Justice Keyes, dissenting.