Coleman v. State

Full title: RYAN VINCENT COLEMAN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Dec 17, 2007

No. 05-06-01454-CR (Tex. App. Dec. 17, 2007)

Opinion

No. 05-06-01454-CR

Opinion Filed December 17, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F06-00355-IYS.

Before Justices, O'NEILL, RICHTER, and LANG. Opinion By Justice LANG.

OPINION

DOUGLAS S. LANG, JUSTICE.

Ryan Vincent Coleman appeals his conviction by a jury for cruelty to animals. The jury assessed punishment at eight years' confinement. Appellant raises three issues on appeal, asserting the trial court erred by: (1) determining City of Dallas animal control officers did not acquire the status of law enforcement officers; (2) determining appellant's interview by City of Dallas animal control officers was not a custodial interrogation; and (3) allowing a psychologist to testify. We decide appellant's second and third issues against him. Accordingly, we need not reach appellant's first issue. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Fedrico Chavez, a cruelty investigator for the City of Dallas Animal Services, testified at trial that on November 17, 2003, he responded to a call at Truett Elementary School regarding a report of a dead, burned cat found on school grounds. Chavez observed the burned cat lying on the ground in a fetal position. The cat's tail and one ear had been cut off. Chavez testified that when he knelt down to pick up the cat, it made a gurgling noise like it was "trying to meow." Realizing the cat was alive, Chavez took the cat to a veterinarian. A microchip implanted underneath the cat's skin provided information identifying the cat's owner, Brian Hankins, and Hankins was contacted. Hankins testified at trial that although the cat received specialized emergency veterinary care, it died the following day. Vincent Medley testified that while employed as field supervisor and chief cruelty investigator for the City of Dallas Animal Services in November 2003, he was the lead investigator assigned to the incident involving Hankins's cat. Medley testified the incident went unsolved for almost two years. According to Medley, in 2005 he was contacted by appellant's uncle, Charles Coleman, and appellant's aunt, Kelly Coleman. Medley testified that, based on information provided to him by Charles and Kelly Coleman, he interviewed Zyana Coleman and Eric Coleman, appellant's cousins; Omar Hernandez, an acquaintance of appellant; and a young woman named Maria, also an acquaintance of appellant. In addition, Medley testified, on October 25, 2005, he and Chavez drove to the house where appellant lived with his grandmother, Bobbye Coleman, to interview appellant. Medley testified appellant admitted causing injuries to Hankins's cat in November 2003. According to Medley, appellant stated he and his cousin had shot the cat with a BB gun. Also, Medley testified, appellant admitted beating and stomping on the cat, cutting off the cat's ear and tail with a knife, and setting the cat on fire. Appellant was arrested in March 2006 and charged with cruelty to animals. At trial, appellant initially pleaded not guilty. After the jury was impaneled, the trial court held a hearing outside the presence of the jury on a motion by appellant to suppress his statement obtained during the October 25, 2005 interview conducted by Medley and Chavez.¹ Medley testified at the suppression hearing that on October 25, 2005, appellant was not under arrest or charged with any crime, nor had any warrants been obtained for appellant's arrest. According to Medley, he and Chavez arrived at the home of appellant's grandmother between noon and 2 p.m. Medley testified they spoke to appellant's grandmother and "asked her if the defendant was home and if it was possible for her to contact him and let him know that [they] wanted to interview him." Then, Medley testified, appellant came into the living room of the house, where he sat down with the officers. Although no other persons were present in the room, Medley stated, appellant's grandmother "passed back and forth" during the interview. Medley asked appellant, "Is it okay if we talk?" Medley testified the interview was conducted with the "thought of filing a case." According to Medley, appellant was free to choose not to talk with them, and was free to stop talking at any time or "walk away" at any time. Medley testified he did not give appellant "Miranda warnings" during the visit or specifically tell appellant he could terminate the interview. After appellant admitted injuring Hankins's cat, Medley testified, appellant was not arrested or detained. Medley stated, "I just advised him that-you know, that it's possible we-we could file a case against him and-and we left." Chavez testified at the suppression hearing that it was "relayed" to appellant that he was free to talk or not to talk during the October 25, 2005 interview. Chavez testified he did not know whether Medley had identified other suspects in the case at that time. No electronic recording was made of the interview. Appellant argued at the suppression hearing that the October 25, 2005 interview was not a "voluntary visit situation . . . where he was unknown to [the animal control officers]." Appellant contended the interview was conducted by law enforcement officers and he was a suspect. Further, he argued, he was not informed "of any of his warnings to include or indicate the right not to discuss this, the right to terminate the interview, nothing. . . . [n]o kind of warnings that our system said a suspect should have." Based on the total circumstances, appellant argued, "these types of statements" should not be admissible. The State argued that although appellant was a suspect at the time of the October 25, 2005 interview, he was not detained or under arrest. Therefore, the State contended, the interview was not a custodial interrogation and no warnings respecting appellant's rights were required. The trial court denied appellant's motion to suppress, stating, "The Court finds that the defendant was not in custody, nor was the-he-there any indication that would cause any reasonable person to believe they were in custody at the time." Following the denial of appellant's motion to suppress, the jury was seated and the State presented testimony of Hankins, Medley, and Chavez respecting the incident giving rise to this action and the ensuing investigation. At that point, appellant changed his plea from "not guilty" to "guilty." During the punishment phase of the trial, Medley testified appellant did not appear remorseful for what he had done to Hankins's cat. Martha McManus, who was the lead cruelty investigator for the City of Dallas Humane Society from 2001 to 2004, testified she observed the cat soon after it arrived at the veterinary clinic. McManus testified the burned cat was conscious and whimpering, and appeared to be in pain. According to McManus, when she went to the elementary school where the cat was found, she saw trails of blood from the concrete to the grass area, "zip" ties where the cat was tied up, and burned grass where the cat was set on fire. Dr. Ken Cantrell, the veterinarian who treated the cat, testified the cat died from heart and respiratory failure as the result of its injuries. Cantrell testified that in his thirty-four years of practicing veterinary medicine, he had never seen a worse case of abuse. Eric Coleman, a cousin of appellant, testified that on November 16, 2003, he and appellant were driving around the block shooting at squirrels with a BB gun when they saw a cat sitting on the corner. Eric testified appellant stopped the car and shot the cat with the BB gun. According to Eric, when he and appellant saw the cat was incapacitated, they took the cat to a veterinarian. However, because it was Sunday, the veterinarian's office was closed. They left the cat near the door to the veterinarian's office and drove away. Later that same day, Eric testified, he and appellant returned to the veterinarian's office and put the cat in the trunk of their car. According to Eric, they stopped at a store, where appellant bought "zip" ties, lighter fluid, and gloves. Eric testified he and appellant and two acquaintances, Omar Hernandez and Maria Parra, drove to Truett Elementary School with the cat in the trunk. Eric stated he held a video camera and taped what appellant then did to the cat. Omar Hernandez testified appellant tied the cat's paws with the "zip" ties, stomped on the cat's head several times, and "slammed" the cat against the school building. At that point, Hernandez testified, the cat was "screaming." Hernandez testified appellant, wearing gloves, stabbed the cat and cut off the cat's tail and one of the cat's ears with a knife. According to Hernandez, appellant then doused the cat with lighter fluid, set the cat on fire, and threw the cat in the air. Hernandez stated the four of them drove to appellant's house and showed the video to Zyana. Hernandez testified that while he was at appellant's house, appellant licked the cat's bloody ear and tail while being videotaped. Kelly Coleman testified that, approximately a year later, she found a cat's tail in the front yard while raking leaves. In addition, Kelly testified, she found a knife in appellant's car, which she thought was "suspicious." She eventually contacted Medley and arranged for him to interview Zyana. Kelly stated she believed appellant is mentally ill, and hoped that by turning him in, he would receive psychiatric care. She testified she did not believe appellant is a threat to the community. Bobbye Coleman testified appellant has lived with her since he was four years old. Bobbye said appellant became troubled starting in middle school, and has been to many doctors. According to Bobbye, appellant has stolen from her, expressed anger by throwing and breaking things, and refused to take his medication. Bobbye testified appellant had changed for the better since he had been on medication in jail, and she believed he would continue taking his medication if he was released. Appellant's father, Robert Coleman, testified appellant is a "sociopath" and has been treated by numerous psychologists since adolescence. Robert testified that since appellant has been in jail, he has been taking his medication properly and has "become a human being again." According to Robert, appellant had expressed remorse for shaming the family. However, Robert testified he does not believe appellant is capable of saying he is sorry for his actions. Appellant testified he was nineteen years old on November 16, 2003. He admitted to the actions attributed to him by Eric and Hernandez. Appellant testified he "did a horrendous, horrible, horrible thing." He testified he doesn't know why he committed such acts. Appellant testified he does feel remorse and does not want to remain in jail. The State called Dr. Mary Lou Randour, a psychologist employed by the Humane Society of the United States, as a rebuttal witness. After a voir dire examination outside the presence of the jury, the trial court found Randour met the qualifications to testify as an expert in this case. Appellant's counsel stated, "We have no objections to the qualifications, Judge. We, at some point, will probably have an objection regarding testimony, but we have no objection to the qualifications." Subsequently, when the State called Randour to testify in front of the jury, appellant's counsel stated:

Your Honor, we'd object as to this rebuttal witness. I think this is an expert and I believe if there's any rebuttal available at this point, it's been-we've presented straightforward information from-I don't believe there's any area for rebuttal. We haven't denied anything whatsoever. We would object to allowing rebuttal of this nature at this time, Your Honor.

Appellant's objection was overruled by the trial court. Randour testified in front of the jury respecting the link between animal cruelty and human violence and the significance of animal cruelty to community safety. According to Randour, studies have shown a person who is cruel to an animal is more likely than others to be cruel to a person. Randour testified she did not think appellant would be a good candidate for probation. During the course of her testimony, Randour referred to a domestic violence study by Dr. Jacqueline Campbell of Johns Hopkins University. At that point, appellant objected to the trial court allowing testimony "about tracts or books and what have you that are not before the Court and they're not here for any type of cross-examination. Nor are they involved or written, authored or anything about this witness." Appellant also objected to the same testimony "in terms of hearsay." The trial court overruled both of appellant's objections, stating, "This testimony relates to established treaties that's recognize [sic] in the field, then I'm going to allow it in." The jury found appellant guilty of cruelty to animals and assessed punishment at eight years' confinement. Appellant filed a motion for new trial, which was overruled by operation of law. This appeal followed.

II. CUSTODIAL INTERROGATION

We begin with appellant's second issue, in which he asserts the trial court erred in determining his October 25, 2005 interview by City of Dallas animal control officers was not a custodial interrogation. Appellant argues officers Medley and Chavez were "investigating a criminal offense with the intention to have appellant arrested and tried for the offense they were investigating." Further, appellant asserts, the officers had targeted appellant as the main suspect and had sufficient probable cause to obtain an arrest warrant. Appellant contends the officers "disregarded [his] constitutional rights and interviewed him." The State asserts the trial court did not err in denying appellant's motion to suppress his statement because appellant was not in custody at the time of his statement. The State argues that during the officers' visit to appellant's home, appellant was not detained or under arrest. The State contends appellant was free to answer or not answer the officers' questions and voluntarily chose to give a statement. After appellant gave his statement, the State asserts, the officers left appellant's home. Therefore, the State argues, appellant was not in custody when questioned by the animal control officers.

A. Standard of Review

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App. 2006); Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App. 2005). We view the record in the light most favorable to the trial court's conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement. Dixon, 206 S.W.3d at 590. We will sustain the lower court's ruling if it is reasonably supported by the record and is correct on any theory of the law applicable to the case. Id. (citing Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990)). We give almost total deference to a trial court's express or implied determination of historical facts and review de novo the court's application of the law. Id.; see also State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App. 2006); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000).

B. Applicable Law

In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination provided under the U.S. Constitution. The holding of Miranda is codified in article 38.22 of the Texas Code of Criminal Procedure.² Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005); Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex.Crim.App. 1996). Section 3(a) of article 38.22 provides that no oral statement made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless, among other things, prior to giving the statement, the accused received the statutory warnings of section 2(a) of article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22 §§ 2-3. Those statutory warnings include: (1) that he has the right to remain silent and any statement he makes may be used against him at trial; (2) that any statement he makes may be used as evidence against him in court; (3) that he has the right to have a lawyer present to advise him during any questioning; (4) that if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) that he has the right to terminate the interview at any time. Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a). The Miranda requirement that police advise a person of rights prior to questioning applies if the person is "in custody or otherwise deprived of his freedom of action in any significant way." See Miranda, 384 U.S. at 445. The determination as to whether a person is in custody within the meaning of Miranda must be made on a case by case basis considering all the objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 254-55 (Tex.Crim.App. 1996). A person is in custody only if, under all the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with an arrest. Id. at 255. The Texas Court of Criminal Appeals has outlined at least four general situations that may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe his freedom of movement is significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect he is free to leave. Id. In the first through third situations, the restriction on freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. With respect to the fourth situation, the officer's knowledge of probable cause must be manifested to the suspect. Id. Such manifestation can occur if information sustaining probable cause is related by the officer to the suspect or by the suspect to the officer. Id. Moreover, situation four does not automatically establish custody. Id. Rather, custody is established if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe he is under restraint to the degree associated with an arrest. Id.

C. Application of Law to Facts

At the hearing on appellant's motion to suppress, Medley testified appellant voluntarily joined Medley and Chavez in the living room of his grandmother's house. Although appellant was alone in the living room with the officers, his grandmother "passed back and forth" during the interview. The record contains no evidence showing appellant was subject to any restriction of movement, or that any situation was created that could have led appellant to reasonably believe his freedom of movement was significantly restricted. See id. Further, even assuming, without deciding, that appellant's statement constituted a manifestation of probable cause, Medley testified he told appellant it was "possible" a case "could" be filed against him. That comment, indicating a possibility of action in the future, would not lead a reasonable person to believe he was under restraint, at that time, to the degree associated with an arrest. See id. (manifestation of probable cause does not automatically establish custody); State v. Stevenson, 958 S.W.2d 824, 829 (Tex.Crim.App. 1997) (mere fact that suspect becomes focus of criminal investigation does not convert investigation into arrest). We conclude appellant's October 25, 2005 interview with City of Dallas animal control officers did not constitute a "custodial interrogation." Accordingly, regardless of whether Medley and Chavez were "law enforcement officers," as asserted by appellant in his first issue, the trial court did not abuse its discretion in denying appellant's motion to suppress. Appellant's second issue is decided against him.

III. TESTIMONY OF STATE'S EXPERT

In his third issue, appellant asserts, "Reversible error occurred when the court allowed a psychologist to testify." In the "Argument and Authorities" section of his appellate brief, appellant restates this issue as, "THE COURT ERRED IN DETERMINING THAT THE STATE PSYCHOLOGIST WAS AN EXPERT." (emphasis original). Appellant argues that once he changed his plea to guilty, the only issue became "what was the proper punishment." Appellant asserts this issue was to be determined by the jury and "the jury was able to make a proper determination without the assistance of a physiologist [sic] who had no connection to the Appellant and did not conduct an independent evaluation." Appellant argues Randour, the State's expert witness: (1) did not apply any scientific techniques to appellant; (2) substituted or influenced the jury's job of deciding punishment in this case based upon her own personal opinion that appellant was not remorseful; (3) testified to other psychological studies without having those studies present for cross-examination; and (4) provided testimony that was general and abstract, with no application to the scientific facts of this case. In addition, appellant argues, the State did not prove Randour's "scientific theory or testimony was widely accepted or applied properly." Appellant asserts he "was harmed by [Randour's] testimony which conflicted with other family member's [sic] testimony, who actually knew the Appellant and observed changes in him." Further, appellant contends, he was harmed because "[t]he State also used Dr. Randour's testimony to substitute the jury decision making process." The State argues appellant failed to preserve the issue he presents to this Court for appellate review. In addition, the State contends the trial court did not abuse its discretion in finding Randour was qualified. Finally, the State asserts, any error was harmless. In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely, specific objection. Tex. R. App. P. 33.1. In addition, the issue on appeal must comport with the objection at trial. Swain, 181 S.W.3d at 367; Rice v. State, 195 S.W.3d 876, 882 (Tex.App.-Dallas 2006, pet. ref'd). Here, appellant made three specific objections respecting Randour's testimony. First, prior to Randour's testimony in front of the jury, appellant objected "to allowing rebuttal of this nature at this time." Then, during Randour's testimony before the jury, appellant objected to the trial court allowing testimony "about tracts or books and what have you that are not before the Court and they're not here for any type of cross-examination. Nor are they involved or written, authored or anything about this witness." Finally, appellant objected to that same testimony "in terms of hearsay." On appeal, appellant asserts in his third issue, "Reversible error occurred when the court allowed a psychologist to testify." In the "Argument and Authorities" section of his appellate brief, appellant restates this issue as, "THE COURT ERRED IN DETERMINING THAT THE STATE PSYCHOLOGIST WAS AN EXPERT." Because appellant's trial objections do not comport with the issue he raises on appeal, we conclude he has failed to preserve his complaint for our review. Appellant's third issue is decided against him.

IV. CONCLUSION

We conclude the trial court did not err in determining appellant's October 25, 2005 interview with City of Dallas animal control officers was not a custodial interrogation. Therefore, regardless of whether the animal control officers were "law enforcement officers," the trial court did not abuse its discretion in denying appellant's motion to suppress his statement made during that interview. In addition, we conclude appellant's third issue presents nothing for our review. Appellant's second and third issues are decided against him. We need not address appellant's first issue. The trial court's judgment is affirmed.