*1 Inns, Inc., as found Agreement and its amendments Holiday F.Supp. Inc. v. (E.D.Va.1980). this court. alleged that Conoco contrary good to the faith Northern acted arbitrarily canceling all of its
obligation by Although the
gas purchase contracts. requires only that Northern sell
Agreement gas in
gas pursuant quantities to the its Agree
purchase agreements, nothing in the its permits to cancel all of
ment Northern MILLER, Jr., Appellant, A decrease in deliv- contracts bad faith. Martin Milton subject good obligation eiy is still to the faith of Section 1.203 defined Sections Texas, Appellee. STATE fact) 2.103(a)(2)(for 1.201(19)(honesty in merchants, honesty in fact and observance 08-95-00111-CR. No. fair deal
reasonable commercial standards of Texas, Appeals of Court of trade). ing in TexBus. & Ann. Com.Code El Paso. 1994). 2.103(a)(2)(Vernon 1.201(19), §§ delivery reductions are limited Northern’s Dec. good in contractual obli faith decreases gations gas purchase agreements under its Corpora producers. Lenape Resources Pipeline Company,
tion v. Tennessee Gas (Tex.1996). 565, 571 Whether gas purchase all
Northern canceled of its
agreements good question faith remains a jury.
for the
CONCLUSION points
Northern raises four of er regarding damages
ror and two alternative
points raising ambiguity Agreement. disposition point
Our of Northern’s first unnecessary
makes it for us to address these evidentiary
points. also raises two Northern
points. Evidence that was either admissible pursuant to trial court’s
or inadmissible contract,
previous interpretation of the how
ever, might opposite well become the under
our construction. The trial court has never light questioned
ruled on the apply in
the contractual construction we Thus, admissibility
opinion. any opinion on new construction would be adviso
under our
ry. appellate An court should not render
advisory opinions. See Olson v. Commission Lawyer Discipline, 901 writ). 1995, no Accord (Tex.App. Paso - El judgment of the trial ingly, we reverse the proceedings the cause for
court and remand unambiguous terms of the
pursuant *3 Garcia, Jr., Odessa, Appel- for
Robert V. lant. Valadez, Attorney, Fort District
Albert G. Stockton, Appellee. BARAJAS, C.J.,
Before and McCLURE CHEW, JJ. OPINION McCLURE, Justice. (“Miller”) Miller,
Martin Milton Jr. brother, guilty of murder of his found (“Bruce”). He was Bruce Edward Miller fined imprisonment and sentenced to life error, $10,000. point first ten- that the should not have asserts post-arrest of his silence dered evidence no theory. Because impeach his self-defense objection he asserts was made funda- of this evidence constituted admission points of In his next three mental error. error, counsel was asserts that his he faded to to evi- ineffective because silence, in- post-arrest dence affirm. acts. We terrogation, and other bad kitchen, mostly open. area and this THE EVIDENCE SUMMARY OF area, precise but hallway A led into its argued theories Because of the defensive A staircase was point is uncertain. entrance family dysfunctional relation- at trial and the hallway. end of the located at the other Sev- fratri- ships culminated this case of casings that shell from deputies eral cide, analysis of the evidence detailed parts laying various a .45 automatic were of De- required. At 4:20 on the afternoon room, kitchen, living and down a of the 27, 1991, Miller walked into the cember murder, day hallway. On the of the County department. Brewster Sheriffs casings. was found deputies found four One deputies sitting reception in the Four room; living in the front of the television entered. He turned to one area Miller in the dishwasher another was found keys to his deputies, handed kitchen; behind the was found still a third said, pickup, ‘You had better lock me found in casing was couch. The fourth why, up.” deputy asked him When stairway. The hallway at the base just my replied, ler “I killed brother.” *4 continued their day, deputies following the had deputies then told the that his brother casings more found three investigation and asked him to turned off the television and casings was found of the and a bullet. One deputies pat- conducted a leave. While the telephone nook located in a under a chair said, search, “All I have is this down Miller found under the was hallway. the Another it, well, get through reading I book and when couch, found on an end third was and the you go After then can ahead and shoot me.” The bullet was couch. of the table at the end warning, receiving Miranda Miller re- No in the couch. top springs found on appointed for him quested that counsel be Bruce. near weapons found on or were have means to other- because he did not the attorney. Deputy an Alfred Alee wise hire scene, Sheriff visiting the crime After that Miller continued to talk on jail in at the to see Miller McDaniel went requesting appoint- that counsel be own after identify as to the order to obtain information an ambu- Deputy inquired ed. Alee whether pur- notification and location of relatives for might be needed in the event Miller’s lance replied and poses. uncooperative Miller was this, still To Miller re- brother was alive. anything him not tell that his relatives did n “Oh, plied, right.” he all re- is dead With was the rea- anymore. that this He alluded cutting spect to his brother off the television When his brother. fight son for the house, telling get him to out of the Miller and fight, talking the Sheriff began about Miller said, why got “I I so mad. He don’t know “fine,” question- said, discontinued McDaniel just I walked in made me so Goddamn mad him, ing and left. shooting.” there and started had been that Bruce autopsy revealed The McDaniel learned that When Sheriff Jack and times, the head times to shot nine three brother, killing Miller had confessed neck, body, and once upper the five times to gun the was the asked Miller where Sheriff chest the in the One bullet entered back. it was in his replied located. Miller that Another lodged in the heart. area and got keys the pickup. McDaniel then Sheriff arm, arm, and pierced right exited the outside to deputies from one of the and went body, passing upper the then reentered it, half-empty a the truck. he found check lung lodging near through and chicken, knife belt with a box survival Bruce in hit spinal column. A third bullet flashlight, .45 semiautomatic and a a loaded colon; another perforated his and the back Colt, .38 Cup a loaded Smith & Wesson Gold remaining three bullets The hit his left arm. Special, and two loaded rifles. neck, traveling in a and hit Bruce the head of these bullets right direction. One dispatched to Bruce’s left to deputies Four bullets re- lodged in they Bruce’s Bruce’s brain. investigate and found ranch to Colt body matched the from Bruce’s fireplace moved body living in the room between gun pickup, a in Miller’s layout of the .45 automatic found precise and a couch. While evidence, coroner testified holding eight it rounds. The crime scene is not clear from wounds would gunshot attached to that four of these living room was appears that the shots, likely most gun and fired two Bruce and concluded that have been fatal He did not mean gunshot hitting He Bruce in the chest. multiple wounds. had died entry fire, trigger hair and gun several of the had a also testified but the happen- that Bruce had been discharged could indicate he knew what was wounds before laying ground. A forensic while his brother shot testified that ing. Miller then wounds, fatal testified that one of the position chemist up a choke turned his hands heart, was pierced one that had Bruce’s him, an animal. growling like charged at likely fired. The coroner testi- the first shot this, gun in his Seeing Miller unloaded person suffering this kind fied that spun Bruce to the direction. brother’s conscious for probably would remain wound ground. Miller admitted fell to the and then seconds and would die within about fifteen might have shot Bruce the back that he hemorrhaging. minutes from massive spun around. during in an took the stand Miller done, had Miller con- Recognizing what he attempt explain day’s events. At the instead that templated suicide. He decided time, living with his brother and Miller and ask if she were he should find his mother ga- family in a room over the his brother’s wrought. she had He satisfied with what rage. up he woke He testified that her, Alpine looking for but he drove around morning began watching television in his for a did not know where she lived because morning, Phyllis (“Phyl- room. That protec- two-year period, he had been under lis”), wife, telephoned Bruce’s Bruce and told away keep from her. tive order returning home until that she was up stopped gasoline picked a box this, hearing gone.1 At Bruce cut *5 hungry. He then chicken he was because the cable television connection to Miller’s Alpine to Fort Davis and on drove from room. When Miller came down investi- he was Marfa in search of his mother. As gate, at the kitchen he found his brother Davis, sister, Cynthia Ming leaving his Fort fixing counter a sandwich. When Miller him in (“Ming”), passed her Mercedes. television, going asked what was on with the because his truck was old ler claimed that him that cable and Bruce told he had cut the down, keep up could not with her. and run he that he wanted Miller to move out. Miller hand, Ming, testified that Miller on the Bruce him that if he did testified that told per speeds reaching 95 miles chased her at out, get not Bruce would kill him. Miller Marfa, driving through Miller hour. After returned to his room and sat for two or three mother and gave up trying to locate his minutes, growing increasingly angry. He into the authorities. decided to turn himself then decided that he would not leave because ranch, guns his He returned to the loaded he had as much as his brother to live in pickup, and drove to the Sheriffs into the house, belonged the ranch to their department. mother. Miller that because his testified length dys- testified at about the Miller ferociously person, brother was a violent he family and about the functional nature his going armed himself before down to confront para- him of his life that left twisted course him. then and told his He went downstairs fantasy of television lyzed world between leaving, that had brother that he was not he everything him and the real world owed there, Phyllis to be and that and Admittedly, Miller nothing. him paid and off in As he children were better Houston. forty accomplished much in his some had not leave, chair turned to he heard Bruce’s murder, life, he did years prior to the around, he his squeak. When he looked saw others, charity nothing off the but live charging at him with his fists brother industry contributing his own for little of nothing “pure Bruce had but clenched. he upon hospitality whose benefit of those eyes no doubt as rage” in his and Miller had day spent much of his dependent. intentions. He testified that to his brother’s beer, television, off, drinking and smok- watching raised his brother to back he as he told 20, 1991, approximately for Houston. one two sons and left 1. On December murder, Phyllis before the had taken her week phase of Miller’s Miller’s 'mg cigarettes. quit Miller school the ment mother money College originated that all the grade. ninth He went to Lee family Baytown welding, her and that Miller was not to learn but he never made entitled to any baekhoe business of it until her death. it a career. He was year and a half. Miller testified for about a cross-examination, During elic- go paid had for him to to a his mother testimony ited that Miller had not been Angelo, trucking school in but he was San severely mistreated his mother. She obtaining necessary process still in the living provided housing him with and a al- licensing Texas. Other than these brief during his life. lowance several times employment, forays into the world of return, properties and he worked on her jobs did odd around the house and the ranch. grandparents. Miller’s moth- eared for his many years spent He also of his earlier cars, two gave er him at least three also caring grandparents. for his maternal Corvettes, and a four bed- of them new Baytown. paid for length concerning room house in She also Miller testified at what was, driving and for go him truck school cruel woman his mother and that he living expenses during this time. Mil- everything unfortunate that his blamed her Austin, life, he cared for including moved from where had befallen in his Bruce’s ler grandparents, to a house on portrayed mean-spirited, her as a his death. He rock him, join tyrant nothing Alpine ranch. His wife did controlling who cared for her to live with they very young, moving instead to California sons. When Shortly Miller moved away their her sister. after and Bruce were sent to live with house, mother evicted grandparents had little contact with into the rock his Nevertheless, him, unclear although exact reason is parents after that. his their joined wife in from record. He mother maintained control over both sons them, them, There, days withholding spent promising but from California. beer, television, drinking Alpine. watching title to the ranch outside She show- little daughter, smoking cigarettes. He contributed her entire affection on her ered eventually living arrangement and Ming. example, to this As an Miller related that his $53,000 him to leave. given Ming relatives asked mother had to travel wife’s *6 there, to Aus- Miller’s wife returned through Europe. Ming lived with her moth- From tin, er, Bruce. and Miller moved with while Miller and Bruce were shunned. Specifically, that his mother had he claimed picture painted an evil of his Miller also him from one of the houses at the evicted brother, person him a portraying violent nothing to do with ranch and would have boys high severely several who had beaten him. his routinely and who assaulted wife. school Phyllis story in he saw that was ten He related a which
Miller also testified
when he
old,
mouth over the bath-
cleaning
had
blood from her
years
he discovered that his mother
tendered voluminous
withholding
on stock
room sink. He also
been
dividend checks
Family Crisis
from the Rio Pecos
given
by
him and Bruce
their maternal
records
long history of do-
a
deposited these Center which reflected
grandfather.
She had not
that
also testified
attempted
preserve
to
mestic violence. Miller
or otherwise
checks
benefit,
and
him on several occasions
despite Bruce had beat
them for the brothers’ future
Ming’s
of his brother.
depositing
that he was afraid
the fact that she had been
him with a
claimed that Bruce had once shot
Ultimately,
the brothers received
checks.
him
stock,
gun
BB
and that Bruce had shoved
they sold in order to cover
which
door at
against
through
the wall or
a screen
living expenses. After Miller’s father
their
witnesses
1985,
birthday party.
a
Several other
mother had all three chil-
died
Finally, Miller
to this occurrence.
sign papers
were related to the
dren
severely
beat
Miller came
testified that his brother
probate of their father’s estate.
he men-
attempted
strangle him when
effectively disin-
and
to
papers
that
to
believe
their
should sue
tioned that he and Bruce
him of
interest
in an estate he
herited
uri-
hard that he
Bruce hit him so
During
punish-
mother.
at
million.
valued
$60
687
in his
See Cuellar
days
lay
testifying
behalf.”
several
in bed witness
nated blood for
State,
494,
(Tex.Crim.App.
613
495
v.
S.W.2d
for a week.
1981). However,
general
quali
rule is
this
story
Phyllis
much of Miller’s
confirmed
any overriding
or
by
constitutional
statu
fied
root
was the
cause
that her mother-in-law
Id.;
Cisneros,
tory
see
692
prohibitions.
also
However,
family’s
contra-
this
troubles.
she
at 83. It is well established that
S.W.2d
Bruce
Miller’s assertions that
dicted much of
may
post-arrest, post-Miranda
not use
a
that
was
killer at heart. She testified
impeach
exculpato
to
or discredit an
silence
in,
shortly
moving
began break-
after
Miller
claim,
theory, including a
elic
ry
self-defense
ing many
ground
laid
rules
down
Doyle
at
for the first time
trial. See
ited
Bruce.
Bruce suffered from severe
Because
610,
2240,
Ohio,
49 L.Ed.2d
426 U.S.
96 S.Ct.
allergies,
cigarette
not
smoke.
he could
abide
84;
(1976); Cisneros,
Cuel
S.W.2d
disregarded
soon
the rule that he
Miller
lar,
613 S.W.2d at
The Court Crimi
Phyllis
the house.
testi-
could
smoke
expanded
prohibition
Appeals
nal
has
guest
like
acting
fied that
Miller ceased
pursuant to
to include
the Texas Constitution
began behaving
had a
to
as if he
post-arrest, preMiranda
silence. Sanchez
Furthermore, he
live in the house.
continu-
State,
(Tex.Crim.App.1986).
buy
ally
money
asked
her
Bruce
night,
cigarettes.
beer and
Late one
Miller
concerning
preserve
To
error
into
room
that
came
their
and demanded
evidence,
erroneous admission
defendant
join
filing
against
him in
Bruce
lawsuit
objection.
timely lodge
specific
Tex.
must
evening,
their
That
mother.
same
R.App.P.
103(a)(1);
52(a); Tex.R.Crim.Evid.
changed
break
arm if she
threatened to
her
869,
(Tex.
State,
Rezac v.
782 S.W.2d
again.2 Phyllis
on the
channels
television
Cisneros,
Crim.App.1990);
688 preserve
order to complaints concerning (d), In subsection the federal rule refers to showing admission of pre-arrest evidence plain error. This changed has been to funda- post-arrest State, silence. Wheatfall mental error which conforms to prac- Texas 829, 882 S.W.2d 836 tice. The Committee intends change no (Tex.Crim.App.1994)(complaint concerning 103(d) law.”). through present Texas admission of evidence of post- defendant’s Therefore, 103(d) purposes, for our Rule arrest objec silence waived absence interpreted must be light existing law tion); Smith v. considering when whether Miller is excused (Tex.Crim.App.1986)(defendant’s failure to from objecting to the admission of this evi- object to admission of showing post- evidence dence. arrest, pr e-Miranda silence waived in ab objection; sence of admission of this evidence Shortly adoption after the of the Rules of error); Cisneros, is not fundamental Evidence, Criminal the Court of Criminal (defendant’s S.W.2d at 83 complaints con Appeals specifically impeachment held that cerning pre-arrest posi>arrest use of si through post-arrest, pr the use of e-Miranda lence objection). waived absence of No Smith, silence is not fundamental error. objection any during was made at time S.W.2d at 855. argue Smith did not and the presentation Thus, State’s of this evidence. Court of Appeals Criminal did not discuss error has been waived unless Miller can es whether admission of this evidence rendered tablish that required object he was not to at fundamentally defendant’s trial unfair. trial. Nevertheless, in our review of case law exist Miller, 103(d) citing Rule and our ing at or near the adoption time of the Cacy, decision in argues that admission of his 103(d), any Rule we been unable to have find impeachment silence for purposes holding decisions that the admission of evi is fundamental error because it rendered his dence rendered a defendant’s fundamen trial fundamentally Cacy, unfair. In we held tally unfair, therefore, constituted funda that admission of showing evidence the de mental error so that the defendant’s failure fendant’s invocation of her to counsel is object fact, excused. the Court of Cacy, fundamental error. Appeals Criminal has reversed decisions of Thus, Cacy support does not Miller’s appellate intermediate argument 103(d) courts which reached appeal. Although Rule purportedly exception gen contains an Briggs to the conclusion. See eral rule party object that a must (Tex.Crim.App.1990)(revers- evidence, admission application of this ing appeals’ holding pursuant court of exception extraordinarily has been frugal. 103(d), Rule the defendant’s failure to One commentator has stated that “funda did complaints not waive his that admission mental error in the admission or exclusion of videotape pursuant to Tex.Code Crim. opposing when counsel has failed to rights art. 38.071 violated his ProcAnn. object or an proof make offer of is so rare in confrontation, process, due and due course of current jurisprudence Texas criminal that it law; disagreed appeals’ Court with court of Wallace, almost nonexistent.” James P. allegedly conclusion that admission of the Provisions, Article I: General 30 Hous. improper proceedings evidence rendered the (1993); L.Rev. see also Steven Goode unfair”); “fundamentally Perry v. al., et Texas Practice: Guide to Texas (Tex.Crim.App.1986)(revers- *8 Rules of Evidence: Civil and Criminal 24 ing appeals’ holding court of that defendant (2d ed.1993). It must be remembered that required object was not to to of admission 103(d) exception Rule does not an create to unconstitutionally suggestive pretrial photo 103(a) requirements the of Rule or Rule lineup preju since error was “so clear and so 52(a), purely but was intended to be declara dicial”; court held that defendant’s failure to prior tive of law. 1 Steven Goode et al. at object 24; waived his constitutional to iden Official Comment to Tex.R.Crim.Evid. Thus, (“Adoption by process). tification of this rule is due we con not meant to change 103(d) the Texas harmless error doctrine. clude that Rule does not excuse Mil Wheatfall, right. object to a See failure to this evidence at forfeitable ler’s 836; Smith, 855; S.W.2d at trial.3 at S.W.2d Thus, Cisneros, at 83. under 692 S.W.2d 103(d) regarding Rule is Our conclusion 52(a), object at and Rule failure to Marin consistent with the recent decision in Marin procedural default. Miller’s trial results (Tex.Crim.App.1993). v. State 851 S.W.2d complaint regarding attempt to remove his Court, 103(d), specifically citing Rule this out of the the admission of widely rights some are considered held that by arguing that it rendered category third functioning proper to the of so fundamental fundamentally contrary to unfair is his trial adjudicatory process enjoy special to our upon teaching of in that it focuses the Marin Marin, system. protection the 851 S.W.2d by the harm caused the admission principle A at 278. characteristic of occupied category than evidence rather the rights they or is that cannot be forfeited Marin, by particular right issue. the at See extinguished by inaction alone. Id. As a com- at 279. Because Miller’s determining guideline for whether a defen evidence, plaint of we concerns the admission particular right, a the Court dant has waived object required hold he to at trial in that was categories described three distinct of rules Having to preserve order error. failed do to (1) system: require found in our absolute so, is waived. Tex.R.Ceim. the contention (2) litigants prohibitions; rights ments of and Tex.R.App.P. 52(a). 103(a)(1); Point of Evid. system implemented which must be the Error No. One is overruled. (3) waived; expressly rights unless and of litigants implemented upon to which are be ASSISTANCE INEFFECTIVE
request.
requirement
at
Id.
279. The
of
52(a)
OF COUNSEL
object
a
Rule
that
defendant
in order to
fall
preserve
apply
rights
error does not
to
Four,
through
of Error
Two
Points
Nos.
ing
categories.
within either of the first two
Miller asserts that he was denied effective
Marin,
By
at
851 S.W.2d
279-80.
definition
First,
alleges
he
that
assistance
counsel.
then,
falling
rights
violations of
within these
attorney
he
his
was ineffective because
failed
categories may
two
be considered fundamen
object to
to
the numerous times
hand,
tal error.4 On the other
Marin includ
his
presented
evidence of
evidentiary
procedural
ed
rules
Second,
complains
that he
silence.
Marin,
group
rights.
of forfeitable
presence
interrogated
was
outside
complain
at 278. In order
to
on at
two different occasions
counsel
least
admission or exclusion
evidence at
a
incriminating
that he
statements
because
comply
require
defendant must
into evidence
made as a result were admitted
Tex.R.App.P. 52(a)
ments
and Tex.R.CRIM.
Third,
objection.5
Miller asserts that
with no
103(a)(1). Marin,
279-
851 S.W.2d at
Evid.
attorney
testimo-
was ineffective because
ny
concerning
admitted
statements
earlier,
regarding
desire to kill his
ler made
As stated
defendant’s
using
proposed
mother and the methods
remain silent and not have that silence used
urges
bring
death. Miller
against
long
him at trial has
been considered
about her
arguments
prior opinions may
subjected
jury
any
to incurable erroneous
3. To the extent
of our
be
103(d)
suggesting
rights
read as
that Rule
excuses a
that is forfeited
failure
one of those
objecting
Cockrell,
from
defendant
admission of
upon
S.W.2d at 89-90.
it.
insist
trial, they
expressly
are
evidence at
disavowed.
object
Consequently,
defendant must now
ruling
an
in order to
trial and obtain
adverse
Appeals recently
4. The Court of
reaf
Criminal
jury
appeal
complain of erroneous incurable
by over
firmed its intention to adhere to Marin
turning
argument.
longstanding
rule that
defendant
jury argument
need not
to incurable
happened
Deputy
when
Alee
5. The first occasion
preserve
v.
order to
error. Cockrell
an ambulance was needed. To
asked whether
(Tex.Crim.App.1996)[overrul
89-90
replied
inquiry,
brother
(Tex.Crim.
ing
him,
counsel,
during
denied
sumption
challenged
that the
conduct can be
guilt-innocence phase
both the
pun-
Jackson,
and the
strategy.
considered
sound
phase
ishment
of his trial.
771;
State,
Lyon
877 S.W.2d at
v.
885 S.W.2d
506,
'd).
1994,
519 (Tex.App
pet.
Paso
ref
. -El
A
is
defendant
entitled to “reason
Consequently, allegations of ineffectiveness
ably effective assistance.”
v.
Strickland
firmly
of counsel must be
founded in the
668, 687,
Washington, 466 U.S.
104 S.Ct.
State,
65,
record. Hawkins v.
660 S.W.2d
75
2052, 2063,
674,
(1984);
80 L.Ed.2d
693
Staf
Lyon,
(Tex.Crim.App.1983);
885 S.W.2d at
State,
(Tex.Crim.
503,
v.
813 S.W.2d
506
ford
test,
519.
appel
Under
the Strickland
However,
App.1991).
a defendant is not enti
lant
proving
bears
the burden
ineffective
tled to errorless counsel or counsel whose
preponderance
assistance
of the evi
competency
judged by hindsight.
is
Staf
Jackson,
771; Lyon,
dence.
S.W.2d at
877
When a of ineffective assis tance of trial comisel is 141 (Tex.Crim.App. reviewed 1973). Court, indulge strong presumption strategy we must Trial counsel must be taken falls within gauging counsel’s conduct the wide into account in the effectiveness of reasonable, range professional representation. Long, assistance See 502 S.W.2d at *10 Deputy When right to counsel. Though Duffy solely to the rea invoked his looks need- an ambulance was representation of and does not asked whether sonableness Alee may ed, brother prong, anticipating a harm that Miller’s apply Strickland’s second alive, responded that analysis Miller required. is See Stone v. still have been 579, Next, (Tex.App. surely when [1st dead. his brother was - Houston Canedo, incident, 1988, 'd); pet. parte Ex he ref of the Dist.] McDaniel learned Sheriff cf. 814, n. weapon was. Miller the asked Miller where harm); (Tex.Crim.App.1991)(discussing Ex pickup. it in his the that was told sheriff Felton, parte 815 S.W.2d this, weapon recov- the murder was From (Tex.Crim.App.1991)(employing a harm anal Miller a self-defense ered. Because asserted ysis that had been inef to determine counsel facts that his theory during the the fective). Finally, appel the is the him, burden dead, had killed brother was that Miller lant ineffective assistance of to demonstrate used .45 automat- and that Miller had Colt by preponderance of the counsel evidence. result, even in issue. As ic were not (Tex. Moore v. may unnecessary, or have felt it ler’s counsel Crim.App.1985); Jaile v. improvident, object to to evidence perhaps 680, 683, n relevant (Tex.App. 686-87 Paso no ancillary In only to issues. these - El pet.). addition, this Miller has failed to show how prejudiced his defensive theories evidence Two, In of Point Error No. Miller arguably evi- unaffected this which attorney asserts that his was ineffective be dence. object of his failure to evidence of cause to post-arrest Miller’s silence and because he Second, complains Miller questioned concerning Miller this silence. permitted the of evi counsel introduction above, may As discussed the not use State bad showing only possessed that he dence post-arrest impeach of evidence silence for Namely, points character. to fact By failing object, purposes. ment to Miller killing Phyllis that he obsessed over underlying waived error and the constitution daily tying her his mother. He talked about upon al it is based. This waiver her, letting an ant the ants devour to bed accentuated fact that Miller’s attor alive, burning shooting her to death. her ney post-ar questioned concerning de primary themes of Miller’s One presented rest silence. Because treat fense concerned his mother’s shameful ample refuting evidence Miller’s claim of self- resulting hatred for her. ment of him and his defense, Miller fails demonstrate how the theory, find that Given that we cannot preju State’s use of his silence not to this evidence was failure light diced his defense. In of the entire not purely strategic. Additionally, Miller has record, probability no we find reasonable prejudiced de shown how evidence this in the proceeding that the result would have light of his For that matter and fense. words, has been different. strategy, may it well have been defensive n prong. to establish Strickland second failed integral to his defense. Error No. Two is overruled. Point of Four Points of Error Nos. Three and are Finally, not demonstrate Miller does they complain the ad- related about during the this evidence introduced how objectionable allegedly evidence. mission phase penalty guilt-innocence affected deciding Assuming without that the admis- phase primary in that of his trial. issue erroneous, we sion this con- phase, perspective, was wheth from Miller’s attorney clude that the actions of Miller’s jury probation. The er he should receive respect do fall items within rejected the theo point had self-defense parameters of either Strickland’s position ry and alternative that Miller’s prongs. culpability voluntary man maximum ad that he could
First, slaughter. two Miller testified complains inci probation, interrogated by the terms of elicited in which he was here dences witness, testimony dem- one character deputies one of the after he had Sheriff and *11 history onstrated that did not have a of jury rejected The arguments
violence.
as well penalty and assessed the maximum Considering entirety
allowed law. of representation provided Miller in this
case, nothing suggests alleged that the errors guilt-innocence phase of the trial so representation
affected the that it fell below of reasonably threshold coun- effective
sel. We no reason find to believe that Mil- during
ler’s counsel ineffective
phase trial. of his Points Error Nos.
Three and Four are judg- overruled. The
ment affirmed. of the trial court is
CHEW, Justice, concurring. fully disposition
I concur of this
appeal necessary but feel it sepa write First,
rately. I do not believe that this case
involves the silent. remain voluntary
made numerous unsolicited arrest, arrest,
statements before his after his receiving warnings.
and after Miranda “Doyle
did not remain silent. apply does not merely inquiries cross-examination that prior
into inconsistent statements.” Monto
ya State, (Tex.Crim.App.1987). case, opinion If is the then the
unnecessarily deals with fundamental error procedural default.
Finally, though opinion well states the
jurisprudence day regarding funda- default, procedural
mental error and I re- degree regulation
main troubled
undermining to remain silent which jury-proof miscarriages jus-
can result in
tice. HERNANDEZ, Appellant,
Claudio Frank Texas, STATE State.
No. 2-95-551-CR. Texas, Appeals
Court
Fort Worth.
Jan. 27,1997.
Rehearing Overruled March