Opinion
No. 05-04-00456-CR
Opinion Filed March 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-25625-JW. Affirm.
Before Justices WRIGHT, MOSELEY, and LANG.
MEMORANDUM OPINION
Dale Curtis Hanks appeals his conviction for solicitation of a minor, sexual assault. After the jury found appellant guilty, the trial court assessed punishment at ten years' confinement and a $800 fine. In four issues, appellant contends (1) the trial court erred by admitting his oral statement into evidence; (2) the trial court erred by overruling his objection to certain questioning by the State; (3) the trial court erred by excluding certain testimony; and (4) the cumulative effect of these errors mandates a reversal of his conviction. We overrule appellant's issues and affirm the trial court's judgment. In his first issue, appellant contends the trial court erred by admitting his oral statement. Specifically, appellant argues he invoked his right to counsel and did not reinitiate contact with the police. We disagree. Once an accused indicates that he desires the assistance of legal counsel, all interrogation of the accused must cease and any statement thereafter must be suppressed unless he makes a voluntary and knowing waiver of his right to have counsel present. Edwards v. Arizona, 451 U.S. 477, 480 (1981). This rule is not violated, however, when the accused initiates further communication with the police, and his statements are admissible in evidence if the totality of the circumstances shows that he made an intelligent and voluntary waiver of his right to counsel. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). After reviewing the conversation between appellant and Marshall, we conclude that after appellant invoked his right to counsel it was appellant, not Marshall, who continued the interview. When appellant expressed a desire to ask Marshall some questions, Marshall explained to him that because appellant had invoked his right to counsel, Marshall could not continue to talk with appellant unless appellant waived his rights. Appellant chose to continue speaking with Marshall. There is no evidence that Marshall made any threats, promises, or inducements to talk. Because appellant changed his mind about talking to Marshall within a short time after requesting an attorney and after being expressly reminded of his rights, we conclude the totality of the circumstances shows appellant's statement to Marshall was voluntary and the result of a knowing waiver of his right to counsel and to remain silent. See Bradshaw, 462 U.S. at 1046-47. We overrule appellant's first issue. In his second issue, appellant contends the trial court erred by overruling his objection to certain questioning by the State. In particular, appellant claims we must reverse his conviction because two questions by the State improperly "implied appellant would not need an attorney during the interrogation . . . if he was not guilty." With respect to the first complained-of question, the State questioned appellant about why he did not tell Marshall he was not guilty during the interview, and appellant answered that he "didn't know what to say . . . and needed to get advice." The State followed up on that answer by asking appellant why he needed advice to know he was not guilty. The focus of the State's questioning was on appellant's failure to tell Marshall that appellant was not guilty. Such questioning is proper. See Garcia v. State, 126 S.W.3d 921, 924 (Tex.Crim.App. 2004). It was not, as appellant suggests, about appellant's right to have an attorney present during questioning. Consequently, we cannot conclude the trial court erred by overruling appellant's objection that the State was improperly questioning appellant "regarding [his] right to have an attorney present during questioning." With respect to the second complained-of question, asking appellant why he needed counsel if he knew it was against the law to have sex with children, the State withdrew the question immediately after appellant objected. Appellant did not ask the jury to be instructed to disregard and did not seek a mistrial. Because appellant received all of the relief he requested, there is nothing for this Court to review. See Dixon v. State, 2 S.W.3d 263, 273 (Tex.Crim.App. 1998). We overrule appellant's second issue. In his third issue, appellant contends the trial court erred by determining that "statements made to Appellant by a high school receptionist" were inadmissible hearsay. At trial, the State stipulated Molly Shaw was a "fictional entity" and there was no Molly Shaw enrolled at the high school. Appellant testified that he believed "Molly" was an adult, even though she told him she was fifteen years old, and he called the high school she said she attended "to make sure." When the State objected to hearsay, a hearing was conducted outside the presence of the jury. During the hearing, the trial court noted that appellant had already testified that he called the high school and suggested appellant could testify that after doing so, he felt "comfortable proceeding on" without violating the hearsay rule. After the prosecutor stated she had no objection, appellant's counsel said, "Fair enough." Appellant then testified before the jury that he called the high school and "got the answer he was looking for." Under these circumstances, we cannot conclude appellant preserved error regarding the hearsay determination. See Dixon, 2 S.W.3d at 273. In his final issue, appellant claims the "cumulative effect" of the errors complained of in his first three issues denied him due process of law. Contrary to appellant's claims, however, we have examined appellant's allegations of error and concluded that, when preserved for our review, they lack merit. While it is conceivable that a number of errors might be found harmful in their cumulative effect, the cumulative effect of issues not preserved and not found to be error does not constitute error. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999) (no authority holding that non-errors may in their cumulative effect cause error); Owens v. State, 96 S.W.3d 668, 673 (Tex.App.-Austin 2003, no pet.) (no cumulative error where appellant did not pursue complaints to adverse rulings). We overrule appellant's fourth issue. Accordingly, we affirm the trial court's judgment.
Appellant's issue is that the trial court erred by determining the statements made to him were hearsay and cites to the reporter's record concerning his testimony about the receptionist's statements. Later, appellant called the receptionist to testify. After a hearing, the trial court determined her testimony was not relevant. Appellant does not complain about that ruling and we do not discuss it.