Erik Forrest Friend v. State
01-14-00884-CR
| Tex. App. | Jan 9, 2015Background
- Appellant Erik Forrest Friend was convicted by a Brazoria County jury of misdemeanor DWI; sentence probated. This brief is his appellate challenge.
- While in custody, Trooper Joel Gonzalez prepared a written "DWI interview with legal warnings" (State's Exhibit No. 2), which Friend signed; the form did not expressly state on its face that he "knowingly, intelligently, and voluntarily waived" the rights listed in Art. 38.22 §2(a).
- On the written form Friend answered some questions but wrote "not saying" in response to questions about whether, what, how much, and when he had been drinking.
- At a pre-admission hearing the trooper testified he read warnings and believed Friend waived; Friend testified he did not recall the warnings and intended "not saying" as an invocation of silence.
- Trial court admitted State's Exhibit No. 2 over Friend's objections (Art. 38.22 §2(b), Fifth Amendment, Tex. Const. Art I §10, Rules 401/403). During rebuttal the prosecutor repeatedly highlighted Friend's written "not saying" responses and argued Friend was "keeping that evidence from you."
- During rebuttal the prosecutor also referred to Friend as having "hired a dream team to sit there with him;" the court sustained an objection and instructed the jury to disregard but denied a mistrial motion.
Issues
| Issue | Plaintiff's Argument (Friend) | Defendant's Argument (State) | Held (trial court) |
|---|---|---|---|
| 1) Admissibility under Art. 38.22 §2(b): whether the written statement shows on its face a knowing, intelligent, voluntary waiver | The written form lacks the statutory express waiver language on its face; §2(b) requires the waiver to appear on the document — admission violated statute | Trooper orally gave warnings and the court should find substantial compliance; waiver can be inferred from conduct/signature | Trial court found the warnings and waiver complied/substantially complied and admitted the exhibit over objection |
| 2) Admission of invocation-of-silence material under the Fifth Amendment and Tex. Const. Art I §10 | Friend’s written "not saying" responses were an invocation of his right to remain silent; evidence of invoking that right is inadmissible and constitutionally prohibited because it can be used as inference of guilt | State argued "not saying" did not amount to invoking rights and the answers were not a comment on silence | Trial court overruled the Fifth Amendment/Art I §10 objections and admitted the portion of the document showing "not saying" |
| 3) Relevance and balancing under Rules 401/403 | Friend argued the refusal to answer questions about drinking had no probative value (not material to intoxication) and was unfairly prejudicial—probative value substantially outweighed by prejudice | State maintained the exhibit was relevant to credibility and full factual context and not unduly prejudicial | Trial court held the exhibit was relevant and not more prejudicial than probative and admitted it |
| 4) Prosecutorial argument: comments on post-arrest silence and on retention of counsel ("dream team") | Friend argued rebuttal comments improperly penalized him for invoking silence (Doyle/Miranda) and the remark about hiring counsel violated Art. 38.38; he moved to strike and for mistrial | State argued remarks were fair commentary on evidence and not constitutionally forbidden; for the "dream team" comment the court sustained and instructed to disregard | Trial court overruled objections to comments on silence; sustained objection to "dream team" and instructed jury to disregard but denied mistrial |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (custodial warnings and prohibition on penalizing silence)
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) (prosecution may not use post-arrest silence against defendant)
- Hardie v. State, 807 S.W.2d 319 (Tex. Crim. App. 1991) (evidence of invocation of right to counsel or silence inadmissible as inference of guilt)
- Garcia v. State, 919 S.W.2d 370 (Tex. Crim. App. 1994) (Art. 38.22 §2(b) requires waiver appear on the statement; strict compliance)
- Cooper v. State, 961 S.W.2d 222 (Tex. App.—Houston [1st Dist.] 1997) (written or recorded refusals can constitute invocation and are inadmissible as evidence of guilt)