Marcus Dewayne McPherson v. The State of Texas

On January 19, 2016, Jefferson County Sheriff’s Officer Allen Burleson was

working interdiction on Interstate 10 (I-10). Burleson stopped McPherson for traffic

violations in Jefferson County on I-10 westbound, headed to Houston. Dash camera

video of the stop from Officer Burleson’s vehicle was admitted as evidence. The

video showed that after Officer Burleson approached the vehicle, he told McPherson

why he stopped him. Officer Burleson questioned McPherson about where he had

been and where he was traveling. Officer Burleson explained to the jury that I-10 is

a known drug corridor.

At trial, Officer Burleson testified McPherson was nervous, and he did not

believe McPherson’s stated reasons for traveling. Other suspicious items in the

vehicle included a bottle of air freshener, a Gatorade bottle that appeared to contain

urine, three cell phones, and mail from McPherson’s address in Florida, which

indicated he was not working in Baton Rouge as he claimed. While Burleson

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acknowledged it is not illegal to possess those items by themselves, he explained

they were “indicators to lead to the bigger picture” and felt McPherson may have

been involved in criminal activity. Officer Burleson also confirmed he found

evidence that the vehicle was rented.

Officer Burleson asked to search the vehicle, and McPherson consented.

Approximately twenty minutes into the search, Officer Burleson located vacuum

sealed bundles of money hidden under a cover near the spare tire and bumper.

Burleson continued searching and located a backpack in the same area of the vehicle,

near the money. The backpack contained vacuum sealed bags of high-grade

marijuana. A forensic scientist, employed by Jefferson County Regional Crime Lab,

later testified the substance seized from the vehicle was marijuana that weighed

22.03 ounces, and the trial court admitted his report into evidence.

Officer Burleson testified that after he searched the vehicle, he believed

McPherson came from Florida and was traveling to Houston. Officer Burleson

testified he retrieved $28,380.00 from the vehicle. Officer Burleson confirmed that

if the money was proceeds from criminal activity, and if McPherson knew the money

was in the car, he committed the crime of money laundering by transporting the

money.

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Officer Burleson testified that when they locate money, Department policy

requires the money to be taken to the bank, where the bank counts it and puts it in a

subject to being seized by the County. He explained that in a Chapter 59 seizure

affidavit, the officer provides the reasons the money is believed to have been

involved in criminal activity, such as the illegal sale of narcotics. The affidavit is

then filed with the District Attorney’s office, where it becomes included in a civil

forfeiture proceeding. The State offered McPherson’s answers to interrogatories

from the civil forfeiture proceeding as State’s Exhibit 19 in presenting its evidence

in McPherson’s trial. In a bench conference, the state explained that it wanted

defense counsel to have an opportunity to look at the exhibit before offering it into

evidence. McPherson’s counsel responded he had been furnished with a copy, and

specifically stated, “I don’t believe the proper predicate has been laid for its

admissibility at this time.” This was the only objection made, which the trial court

initially sustained. When trial re-convened the following day, however, the trial

court stated, “Before I do that, you tendered yesterday, and I sustained [defense

counsel’s] objection, No. 19. I’ve reviewed that. I believe I was incorrect. [Defense

counsel], your objection to 19’s overruled; and 19’s admitted as evidence.” The

defense did not make any further objection, and the trial court admitted McPherson’s

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answers to the interrogatories that he filed in the civil forfeiture proceeding into

evidence as State’s Exhibit 19.

Later, the State had the opportunity to examine Officer Burleson when he was

recalled and the prosecution questioned him about McPherson’s interrogatory

answers. The prosecutor specifically asked Burleson about interrogatory 13, which

inquired about the source of the money seized. Burleson read McPherson’s answer,

indicating McPherson’s answer said: “It was Defendant’s money.” There was no

objection to this line of questioning. Only when the State asked Officer Burleson if

McPherson prepared the answer to the interrogatory himself did the defense object

claiming the answer was speculation. The trial judge sustained the objection. The

State went on to question Officer Burleson about the interrogatory answers

pertaining to McPherson’s prior felony convictions. At that point, the defense stated,

“Your Honor, we renew our objection, especially to this question and answer, as

being inadmissible and the proper predicate hasn’t been laid or door opened.” The

trial judge overruled the objection and noted State’s Exhibit 19 was already in

evidence.

Analysis The State argues that McPherson failed to preserve his complaint for our

review. However, in support of his argument that the trial court erred by admitting

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his interrogatory answers from the civil forfeiture proceeding in the guilt-innocence

phase of his criminal trial, McPherson essentially asserts that his right against self

incrimination under the Fifth Amendment is a fundamental, category-two right, and

he suggests his objection cannot be waived unless waived knowingly, voluntarily,

and intelligently.1

Generally, a contemporaneous objection must be made to preserve error for

appeal. See Tex. R. App. P. 33.1(a). The rule, however, is not absolute. In Marin,

the Court of Criminal Appeals “held that the general preservation requirement’s

application turns on the nature of the right allegedly infringed.” Grado v. State, 445

S.W.3d 736, 739 (Tex. Crim. App. 2014); Marin v. State, 851 S.W.2d 275 (Tex.



1 McPherson argues that no warnings were given to him in the civil proceedings with respect to the interrogatory answers on the subject of his right not to incriminate himself in his answer. However, with the exception of McPherson’s interrogatory answers, the record in McPherson’s civil forfeiture case is not before us. We cannot take as true allegations not supported by the record before us in the appeal. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2014) (citing Janecka v. State, 937 S.W.2d 456, 476 (Tex. Crim. App. 1996). Further, we “cannot go to the record of another case for the purpose of considering testimony not shown in the record of the case before [us].” Evans v. State, 622 S.W.2d 866, 868 (Tex. Crim. App. [Panel Op.] 1981); see also Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987) (internal citations omitted). The discovery responses contained in State’s Exhibit 19 indicate McPherson was represented by the same attorney who represented him in the criminal proceedings, and there were no objections to the interrogatories in the document that is before us here. Thus, nothing in the record shows that McPherson ever objected to the discovery requests in the civil forfeiture proceeding.

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Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262

(Tex. Crim. App. 1997). Defendants’ rights may be separated into three categories.

See Proenza v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017) (recognizing

category one, category two, and category three rights outlined in Marin); Grado, 445

S.W.3d at 739; Marin, 851 S.W.2d at 278–80. Absolute rights fall into the first

category and are “widely considered so fundamental to the proper functioning of our

adjudicatory process . . . that they cannot be forfeited . . . by inaction alone.” Marin,

851 S.W.2d at 278 (internal citations omitted). The second category consists of

rights “that are ‘not forfeitable’—they cannot be surrendered by mere inaction, but

are ‘waivable’ if the waiver is affirmatively, plainly, freely, and intelligently made.”

Grado, 445 S.W.3d at 739 (citing Marin, 851 S.W.2d at 279–80). A trial judge has

a duty to implement this second category of rights without any request unless there

is an effective express waiver. Id. (citing Marin, 851 S.W.2d at 279–80). “[T]he third

category of rights are ‘forfeitable’ and must be requested by the litigant.” Id. (citing

Marin, 851 S.W.2d at 279–80). This includes many rights of a criminal defendant,

some which are constitutional, and can be forfeited by inaction. Id. (citing Marin,

851 S.W.2d at 279).

The general error preservation rules apply to many constitutional errors. See

Saldano v. State, 70 S.W.3d 873, 888–89 (Tex. Crim. App. 2002). The two narrow

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exceptions to the rule that generally requires a timely and specific objection to

preserve error are “rights which are waivable only” and denials of “absolute systemic

requirements.” Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Errors

that fall in these two categories may be raised for the first time on appeal, and

examples of waivable-only rights include the right to assistance of counsel and the

right to a jury trial. Id.; Badall v. State, 216 S.W.3d 865, 867 (Tex. App.—Beaumont

2007, pet. ref’d). Although McPherson argues otherwise, the Fifth Amendment right

against self-incrimination can be forfeited by failing to raise a timed and specific

objection during the defendant’s trial. See Grado, 445 S.W.3d at 741 n.29 (internal

citations omitted); Johnson v. State, 357 S.W.3d 653, 658 n.3 (Tex. Crim. App.

2012). “The Fifth Amendment privilege against self-incrimination under a Marin

analysis is a forfeitable privilege.” Johnson, 357 S.W.3d at 658 n.3 (citing Marin,

851 S.W.2d at 278–79). The Court of Criminal Appeals explained in Johnson, “[t]his

is true because any relinquishment of the privilege need not be expressly made, and

a trial judge has no independent duty to implement a defendant’s Fifth Amendment

privilege.” Id. (citing Minnesota v. Murphy, 465 U.S. 420, 427 (1984); Marin, 851

S.W.2d at 279). The “privilege against compelled self-incrimination is not ordinarily

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self-executing. In all but a few specific situations, a criminal defendant must timely

assert his privilege[.]”2 Chapman v. State, 115 S.W.3d 1, 6 (Tex. Crim. App. 2003).

We conclude McPherson was required to make a specific, timely objection in

the trial court to preserve his right to complain that admitting his interrogatories from the civil forfeiture case violated his 5th Amendment right to preserve his right to

complain about that subject in his appeal. See Tex. R. App. 33.1(a)(1); see also

Johnson, 357 S.W.3d at 658 n.3; Chapman, 115 S.W.3d at 6.

McPherson’s objections at trial to the admission of State’s Exhibit 19 do not

comport with the complaint he has raised in his appeal. Therefore, nothing regarding

the argument he presents in his brief has been preserved for our review. We affirm

the trial court’s judgments.

AFFIRMED.