Opinion
05-22-00412-CR
06-28-2023
ROGER DUMON ALLISON, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F-2175258-T
Before Justices Pedersen, III, Garcia, and Kennedy
MEMORANDUM OPINION
DENNISE GARCIA JUSTICE.
A jury convicted appellant of murder and assessed punishment at eighty years in prison. In two issues on appeal, he argues he was denied due process because his trial was not conducted by a fair and impartial tribunal and the trial court erroneously denied his requested jury instruction on the voluntariness of his confession. In a cross-point, the State argues the judgment should be modified to reflect the jury's affirmative finding that appellant used a deadly weapon. As discussed below, we conclude the record does not demonstrate bias from an extrajudicial source or such a high degree of favoritism as to make fair judgment impossible. We further conclude that statements made by the interrogating officer during appellant's interview did not raise a question about the voluntariness of appellant's confession requiring submission of the issue to the jury. We modify the judgment, and as modified, affirm.
I. Background
On February 14, 2021, appellant shot his wife, Raesha Allison, eight times as she held their five-month-old daughter in her arms. Raesha's four-year-old son was also in the apartment at the time. Appellant fled the apartment after the shooting, leaving the two children alone with their dying mother.
An upstairs neighbor heard the couple arguing and then heard gunshots and a baby crying and called 911. When the neighbor looked outside, she saw appellant running away from the apartment with a gun in his hand. When officers arrived, they found the baby lying face-up on the floor next to Raesha, who lay face-down in a pool of blood. The four-year-old boy sat curled up on a nearby couch, pretending to be asleep.
Appellant was arrested the following afternoon at his mother's house. He waived his rights and agreed to speak with Dallas Police Detective Phillip Wheeler. The interview was videotaped.
Initially, appellant claimed to know nothing about the shooting and denied being at his apartment that day. Then, he said that an altercation with a group of unidentified men outside the apartment precipitated the shooting. First, he claimed that the men started shooting into the apartment and he ran away without realizing Raesha had been hit. Next, he claimed he shot at the men from inside the apartment and must have accidentally struck Raesha in the process.
As the interview progressed, appellant claimed that he and Raesha were arguing, and Raesha threatened him with a gun while holding the baby. The two struggled over the gun, and the gun accidentally fired, striking Raesha. Appellant said he panicked after the shooting, ran from the apartment, and disposed of the gun by giving it to someone on the street.
Prior to trial, appellant moved to suppress his post-arrest interview statements to Detective Wheeler, arguing that his statements were not knowing and voluntary and that Detective Wheeler "used deception" during the interview. After a hearing, the trial court ruled that appellant knowingly, intelligently, and voluntarily waived his Miranda rights, and expressed doubt about whether Detective Wheeler's comments were deceptive. The motion to suppress was denied and the court made findings of fact and conclusions of law in support of its ruling.
See Miranda v. Arizona, 384 U.S. 436, 464-65 (1966).
Appellant did not testify during the guilt phase of trial. The jury was charged on the lesser-included offense of manslaughter but convicted appellant of murder. Appellant testified during the punishment phase in support of a sudden passion theory. The jury rejected appellant's sudden passion claim and sentenced him to eighty years in prison. This timely appeal followed.
II. Analysis
A. Judicial Bias and Due Process
In his first issue, appellant contends his due process rights were violated because his trial was not conducted by a fair and impartial tribunal. He identifies four areas in which he contends the trial judge "became an active advocate for the State." Each of the four instances involved the trial judge overruling a defense objection to evidence proffered by the State. Appellant does not assign error to any of the rulings individually; instead, he argues the cumulative impact of the trial court's alleged bias entitles him to a reversal of his conviction.
Due process requires a neutral and detached judge. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A defendant is entitled to a fair trial before a judge with no actual bias against him or interest in the outcome of his particular case. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997); see also Alivez v. State, 333 S.W.3d 661, 673 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd). Accordingly, a judge should not act as an advocate or adversary for any party. Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd).
To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed, and (2) probable prejudice to the complaining party. Id.; Wilson v. State, 473 S.W.3d 889, 903 (Tex. App.-Houston [1st Dist.] 2015, pet. ref'd). Judicial remarks during the course of a trial that are critical, disapproving, or even hostile to counsel, the parties, or their cases ordinarily do not support a bias or partiality challenge. Id. Such remarks may constitute bias if they reveal an opinion deriving from an extrajudicial source. Id. When no extrajudicial source is alleged, however, such remarks will constitute bias only if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. Id. Normal expressions of impatience, dissatisfaction, annoyance, and even anger do not establish bias or partiality. Liteky v. U.S., 510 U.S. 540, 555-56 (1994); Luu v. State, 440 S.W.3d 123, 129 (Tex. App.-Houston [14th Dist.] 2013, no pet.). "A judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration-remain immune." Liteky, 501 U.S. at 556.
The Hearsay Objection
The first instance of alleged bias involved a hearsay objection to a responding officer's testimony about the 911 call. Specifically, during Officer Ryan Kareliusson's testimony about responding to the 911 call, he said that someone saw a person running out of the apartment. Defense counsel lodged a hearsay objection, and the State responded that the witness was testifying to what he saw in the call notes. The judge then said, "It's not for the truth of the matter asserted, ladies and gentleman. It's basis for his further action for why he did what he did, so overruled." According to appellant, this demonstrates that the judge was acting as an advocate for the State.
Article 38.05 of the code of criminal procedure requires that:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.Tex. Code Crim. Proc. Ann. art. 38.05. Comments from the bench must therefore be limited. Strong v. State, 138 S.W.3d 546, 552 (Tex. App.-Corpus Christi-Edinburg 2004, no pet.). But to constitute reversible error, any unauthorized comments must be reasonably calculated to benefit the State or prejudice a defendant's rights. See Brokenberry v. State, 853 S.W.2d 145, 153 (Tex. App.- Houston [14th Dist.] 1993, pet. ref'd) (judge's comments to the jury providing instructions and noting that defendant's objection was groundless failed to detrimentally affect defendant's rights). A judge can lawfully provide guidance and manage the presentation of evidence from the bench without abandoning his role as an independent arbiter. See Tex. R. Evid. 611(a) ("The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence."); Barron v. State, 630 S.W.3d 392, 408 (Tex. App.-Eastland 2021, pet. ref'd); Zhigang v. State, No. 09-17-00462-CR, 2019 WL 5057206, at *14 (Tex. App.-Beaumont 2019, pet. ref'd) (mem. op., not designated for publication).
Here, the judge's management of the evidence did not assist the State in establishing admissibility or constitute otherwise improper commentary. Although it is unclear whether the State's response was intended to argue that the testimony was not hearsay because of the purpose for which it was offered, or was admissible as a hearsay exception, the judge made no suggestions about the evidentiary basis for admission. In fact, the judge's comment was not directed to the State; it was more akin to a sua sponte instruction to the jury. And that instruction favored appellant by clarifying the limited purpose for which the evidence should be considered, thereby circumventing the potential for the jury to assign the evidence undue weight. This does not demonstrate judicial advocacy or bias, See Barron, 630 S.W.3d at 408 (providing guidance concerning the presentation of evidence does not constitute abandonment of the court's role as a neutral and independent arbitrator); Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.-Corpus Christ-Edinburg 1996, no pet.) (to be reversible error, comments from the bench must be calculated to benefit the state or prejudice defendant), nor does it raise a concern about unfairly influencing or prejudicing the jury.
Objection to Admissibility of Pre-Miranda Statements
The next instance of alleged partiality occurred during testimony about appellant's pre-Miranda statements to the police. When testifying about appellant's arrest, Officer Kareliusson said that appellant began talking on his own. The second time he stated that appellant initiated conversation while en route to the police station, the prosecutor asked what appellant said. The following exchange ensued:
DEFENSE COUNSEL: Objection, Your Honor. At this point, he was not read his rights. We are going to object to any statements coming in.
THE COURT: There was no custodial interrogation; is that right? Just spontaneous res gestae?
THE STATE: Yes, Your Honor. He's responding to no questions. He's talking on his own.
THE COURT: Is there an objection?
DEFENSE COUNSEL: We're just going to renew the objection, Your Honor.
THE COURT: Okay. That's overruled.
DEFENSE COUNSEL: Judge, we would ask that we be allowed to have a hearing with regard to what the defendant said on the way to jail because it is our position that the Miranda should have been read . . . .
THE COURT: Well, so far, there hasn't been any interrogation, whatsoever. Therefore, there's no reason for a hearing.
Did you ask the suspect any questions, sir?
THE WITNESS: Negative. Just name and date of birth.
THE COURT: All right.
THE WITNESS: That's all I asked the suspect.
THE COURT: The objection is overruled.
Notwithstanding appellant's assertion, in context, the court's inquiry "there was no custodial interrogation, right?" does not suggest a high degree of favoritism toward the State. The court was seeking confirmation of what had already been established-that appellant's statements were not made in response to interrogation. After the State confirmed the court's understanding of the testimony, the judge provided defense counsel with the opportunity to advance a different theory of inadmissibility, but the defense offered nothing beyond its original Miranda-based objection. After seeking further confirmation from the witness about the context of appellant's statements, the court overruled the objection. The court's efforts to understand the testimony, its context, and the objection do not evince bias. To the contrary, this demonstrates that the court afforded careful consideration to the potential inadmissibility of the statements.
The judge may also have been seeking assurance that further testimony from the witness would not demonstrate otherwise.
Likewise, the denial of defense counsel's request for a hearing does not reflect partiality. The absence of Miranda warnings before appellant's volunteered statements was the sole basis for counsel's objection. It is well-established, however, that when an accused volunteers information that is not in response to interrogation, the statement is admissible because it is not the product of custodial interrogation. See Stevens v. State, 671 S.W.2d 517, 520 (Tex. Crim. App. 1979); see also Illinois v. Perkins, 496 U.S. 292, 297 (1990) (Miranda only required when there is both custody and interrogation). The court's refusal to conduct an unnecessary hearing falls squarely within the scope of the court's wide discretion to maintain control of the trial. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (trial court has broad discretion in maintaining control and expediting trial); Gallegos v. State, No. 01-16-00885-CR, 2018 WL 3384631, at *4 (Tex. App.-Houston [1st Dist.] 2018 (judge can manage presentation of evidence to avoid wasting time).
Objection to Body-Cam Authenticity and Witness Testimony
Appellant's next example of alleged bias involves the court's ruling on a defense objection to the authentication of body-camera footage through an officer who was not wearing the camera. The State laid the foundation for the admission of the body-camera footage through an officer on the scene. The officer testified that the footage fairly and accurately depicted everything that happened that day, and although it was not footage from his body camera, he could identify everyone who was there and explain everything to the jury. When the State offered the footage into evidence, defense counsel asked to take the officer on voir dire. During that questioning, counsel elicited testimony that the officer could not be 100% certain that the camera footage had not been altered. Counsel then objected and the court ruled that the footage would be admitted as follows:
DEFENSE COUNSEL: At this time, Your Honor, we would object. He's not the original source of this body cam and he can't authenticate it. We would object under 901.
THE COURT: The witness testified that the body cam fairly and accurately portrayed the scene as he saw it. It's not necessary that he be the one wearing the body cam. Overruled. [The exhibit] is admitted.
Appellant contends the court's comments indicated to the jury that the evidence was reliable. While counsel's voir dire inquired about reliability, the court's comment and ruling pertained to the authentication and admissibility of the evidence, in response to the objection that was raised. See Ostolin v. State, No. 05-19-00181-CR, 2020 WL 4034965, at *4 (Tex. App.-Dallas Jul. 17, 2020, no pet.) (mem. op., not designated for publication) (comment on admissibility was not an improper comment on weight). Nothing about the court's comment or ruling demonstrates bias or prejudice.
Objection to Speculative Witness Testimony
Appellant's final alleged example of judicial bias occurred when the court overruled a defense objection that testimony was speculative. Appellant maintains that the testimony was "clearly speculative" and "impressed upon the jury a view of the evidence which certainly did not reflect well on appellant's defensive positions."
Bias can rarely be established based on a judge's rulings in a case. McDaniel v. State, No. 05-15-01086-CR, 2016 WL 7473902, at *11 (Tex. App.-Dallas Dec. 29, 2016, pet. ref'd) (mem. op., not designated for publication). The terms bias and prejudice "do not encompass all unfavorable rulings toward an individual or her case, but instead must connote a favorable or unfavorable disposition that is somehow wrong or inappropriate . . . ." Liteky, 510 U.S. at 550. Thus, the remedy for unfair rulings is typically to assign error to the ruling itself rather than complain of bias. See Shabazz v. State, No. 05-20-00002-CR, 2021 WL 2943924, at *11 (Tex. App.-Dallas Jul. 12, 2021, pet. ref'd) (mem. op., not designated for publication).
Appellant has not raised an issue challenging the merits of these rulings on appeal. Regardless of the merits, there is nothing to indicate the judge was biased or not impartial. Nothing about the court's rulings, individually or collectively, raises the kind of fundamental procedural unfairness that implicates appellant's due process rights. See Brumit, 206 S.W.3d at 645. The record reflects that the rulings were nothing more than commonplace legal rulings.
Courts enjoy a presumption of impartiality. Abdygapparova v. State, 243 S.W.3d 191, 198 (Tex. App.-San Antonio 2007, pet. ref'd). Considering the entirety of the record, including the examples appellant cites, we find nothing to overcome that presumption. See Dockstader, 233 S.W.3d at 108 (we consider the entire record in examining claims of bias and impartiality); Armstrong v. State, No. 05-10-01246-CR, 2011 WL 6188608, at *5 (Tex. App.-Dallas Dec. 14, 2011, no pet.) (considering entire record). The judge was courteous, careful, and impartial, and even complimented the defense on its advocacy. There is nothing to establish bias from an extrajudicial source or to show such a high degree of favoritism as to make fair judgment impossible. See Liteky, 510 U.S. at 555-56. Appellant's first issue is overruled.
B. Charge Error and the Voluntariness of Appellant's Confession
Appellant's second issue argues he was entitled to an instruction on the voluntariness of his confession pursuant to Tex. Code Crim. Proc. Ann. art. 38.22 § 6. Appellant claims he was entitled to the instruction because Detective Wheeler made misleading statements during appellant's interview that raised the issue of whether his confession was voluntary. We disagree.
The jury charge did include an Article 38.22 instruction about whether appellant was properly warned of his rights, but the court refused to include an additional voluntariness instruction under § 6.
[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether error occurred; if no error occurred, our analysis ends. Id. If error occurred, whether it was preserved then determines the degree of harm required for reversal. Id.; see Sandoval v. State, 665 S.W.3d 496, 537 (Tex. Crim. App. 2022). Where, as here, appellant raised a timely objection to the jury charge, we reverse if appellant suffered some harm as a result of the error. See Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009).
Article 38.22 is known as the Texas Confession Statute. See Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App. 2008); Tex. Code Crim. Proc. Ann. art. 38.22. Section 6 pertains to the admissibility of an accused's custodial and noncustodial statements and provides that only voluntary statements are admissible at trial. Tex. Code Crim. Proc. Ann. art. 38.22 § 6; see Oursbourn, 259 S.W.3d at 171. Section 6 is independent of other sections contained within Article 38.22 and is triggered where a question is raised about the voluntariness of the accused's statement. Oursbourn, 259 S.W.3d at 174-175.
To be entitled to a Section 6 instruction, the defense must introduce evidence at trial from which a reasonable jury could conclude that the statement was not voluntary. Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007). The evidence must be such that a reasonable jury could find that the confession was not made voluntarily. Id. However, there is no error in refusing to include an Article 38.22 instruction where there is no evidence before the jury to raise the issue. Id.; Oursbourn, 259 S.W.3d at 174.
Lack of voluntariness may be based on many factors, including physical or mental illness, intoxication, being on medication, or acting under a threat of harm. See Oursborn, 259 S.W.3d at 172-73. It may also arise from police coercion. See Green v., State, 934 S.W.2d 92, 99-1000 (Tex. Crim. App. 1996). Appellant's argument here is that the alleged misrepresentations constitute coercion.
Specifically, appellant contends that Detective Wheeler attempted to trick him into making incriminating admissions when he "lied to appellant that his cell phone records put him in the apartment where the shooting occurred and that there were cameras outside the apartment showing him possessing a gun." The record reflects however, that Detective Wheeler did not say he had reviewed the cellphone records and surveillance footage, but rather, spoke in terms of what the records and footage were "going to show."
But we need not parse whether Detective Wheeler's statements were simply nuanced or misrepresentations, because assuming for the sake of argument that they were misrepresentations, they do not constitute coercion.
The State points out that a witness had already reported seeing appellant leave his apartment with a gun after the shooting, so the detective could reasonably have believed that the cell phone records would place appellant at the apartment and the surveillance footage would show him leaving.
For a misrepresentation by law enforcement to render an otherwise voluntary statement inadmissible, the misrepresentation must rise to the level of coercion capable of "overbearing the will of the accused and bring about a confession not freely given." Green, 934 S.W.2d at 99-100. Of the numerous types of police deception, a misrepresentation relating to an accused's connection to the crime is least likely to render a confession involuntary. Id. at 100. Detective Wheeler's statements about the cell phone records and surveillance fall into that category.
Moreover, appellant did not make immediately incriminating admissions after Detective Wheeler commented about the cell phone records and surveillance footage. Instead, appellant continued to deny responsibility for the shooting. It was only after Detective Wheeler pointed out the lies and inconsistencies of appellant's story that appellant finally admitted he shot his wife. Even then, he claimed it was an accident and that Raesha was the first aggressor. A defendant is not entitled to a voluntariness instruction when the evidence shows that a misrepresentation by law enforcement did not affect the defendant's decision to confess. See Olivos v. State, No. 14-08-00660-CR, 2009 WL 5791030, at *4 (Tex. App.-Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op., not designated for publication).
Appellant also insists that Detective Wheeler was deceitful because he told appellant he would decide what charges to file against appellant based on what he said in the interview. There is nothing misleading about this statement. Detective Wheeler testified at trial that although he did not expect it to happen in this case, suspects sometimes provide information that proves their innocence.
Viewing the alleged misrepresentations in the context of the entire interview and the entirety of the record, we find nothing that demonstrates the kind of police overreaching that supports the submission of a voluntariness instruction. See Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993) (no evidence to support instruction); Martinez v. State, No. 04-12-00739-CR, 2014 WL 5464157, at *4 (Tex. App.-San Antonio Oct. 29, 2014, pet. ref'd) (mem. op., not designated for publication) (interviewer's lie did not constitute police overreaching). There is nothing to suggest that the complained-of statements in any way "distorted an otherwise rational choice of whether to confess or remain silent." Green, 934 S.W.2d at 100. Because there was no evidence from which a jury could reasonably find that appellant's statements to Detective Wheeler were involuntary, the trial court did not err in refusing to submit a 38.22 § 6 instruction to the jury. Appellant's second issue is overruled.
C. Reformation of the Judgment
The State's cross-point argues that the judgment should be modified to reflect the jury's affirmative finding that appellant used a deadly weapon, a firearm, in the commission of the offense.
We are authorized to reform a judgment to make the record speak the truth when we have the necessary information to do so. Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). Here, the record reflects that the jury found that appellant used deadly weapon, a firearm, in the commission of the offense. We therefore sustain the State's cross-point and modify the judgment accordingly.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to reflect that he jury made an affirmative finding that appellant used a deadly weapon in the commission of the offense. As REFORMED, the judgment is AFFIRMED.
Judgment entered.