Opinion
No. 04-03-00797-CR
Delivered and Filed: June 8, 2005. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-8344, Honorable Maria Teresa Herr, Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Barry Richardson appeals his murder conviction, urging four issues on appeal. We overrule all four issues and affirm the judgment of the trial court.
Factual and Procedural Background
On October 2, 2003, Richardson was in his front yard when a vehicle approached his house. Richardson retrieved a gun from his house and shot and killed one of the car's occupants. Richardson moved to suppress statements he gave to police officers after he was taken into custody. After hearing evidence, the trial court denied Richardson's motion to suppress. Following a jury trial, Richardson was convicted and sentenced to forty-five years of confinement. Richardson argues that the trial court abused its discretion in: (1) finding his statements to be voluntary and therefore admissible in violation of the U.S. and Texas Constitutions; (2) finding his statements to be in compliance with article 38.22 of the Texas Code of Criminal Procedure in that there was no recording of the statements; (3) denying proper cross-examination and admitting evidence in violation of the U.S. and Texas Constitutions; and (4) failing to suppress evidence of a weapon in violation of Texas Rules of Evidence 401, 403, and 404(b) and the Texas Constitution.Discussion
A. Standard of Review We review the trial court's ruling on a motion to suppress for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). Under this standard, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Id. When reviewing a trial court's ruling on a mixed question of law and fact, we review de novo the trial court's application of the law to the facts of the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). However, we also afford almost total deference to the trial court's evaluation of the credibility and demeanor of the witnesses. Id. And, when there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling. Id. The trial court's ruling must be upheld if it is correct under any theory of law applicable to the case. Id. B. Were Richardson's statements involuntary? At the hearing on the motion to suppress, three police officers testified to the events surrounding the taking of Richardson's statements. Detective Thomas Froelick testified that he was called to the crime scene on the morning of the murder. Richardson's mother was on the phone with Richardson and asked Detective Froelick if he would talk to her son. Froelick explained to Richardson that they believed he had been involved in a shooting and asked if he would tell the police what had happened. Richardson indicated he would and agreed to meet Detective Froelick at a police substation. When Detective Froelick arrived at the substation, he was told that Richardson had been advised of his rights by another officer. Richardson then agreed to talk about his involvement in the crime. Richardson also agreed to give a written statement. During the time Detective Froelick spoke with Richardson, Richardson was articulate and did not appear to be under the influence of drugs or alcohol. He did not appear to have a mental condition or problems recalling events or speaking about those events. He did not at any time request to speak with a lawyer. Richardson was then transported from the substation to the homicide office where he gave a statement to Detective Slaughter. When Detective Slaughter walked into the interview room, Detective Tim Angel was also in the room with Richardson. Detective Angel had just advised Richardson of his rights by reading from a SAPD Form 66-E card. The card, which contained the Miranda warnings, was signed by both Detective Angel and Richardson. Detective Angel asked Richardson if he understood his rights, and he responded that he did. Richardson, however, did not invoke any of his rights. He agreed to speak with Detective Slaughter about the facts of the case. Richardson also agreed to give a written statement. As Richardson related the facts, Detective Slaughter typed them on a computer. Richardson was given an opportunity to review, make corrections, and sign the statement. Richardson also initialed the Miranda warning on each page. Although Richardson appeared to be nervous, he did not appear to be under the influence of drugs or alcohol nor did he exhibit mental illness or impairments. At no time did he invoke his rights under Miranda. He never asked to talk to a lawyer. Detective Froelick then became aware that there was an outstanding warrant on Richardson for unlawfully carrying a weapon. While Richardson was giving his statement, Detective Froelick communicated this fact to Detective Slaughter. Richardson was then taken to jail. The officers obtained a warrant for Richardson's arrest on the murder charge, and both Detective Slaughter and Detective Angel went to the jail to speak with him again. They again advised Richardson of his rights, and he signed another Miranda warning card. Detective Slaughter advised Richardson that he was under arrest for murder. Richardson agreed to speak with them, and he agreed to waive the rights that had been read to him. Before speaking with Richardson, Detective Slaughter again admonished him of his rights by reading from the SAPD Form 66-E. Detective Slaughter asked him if he understood his rights, and he acknowledged that he did and signed the form. After speaking with Richardson, Detective Slaughter again reduced the statement to writing. Richardson was again given the opportunity to read the statement and make any corrections. Richardson then read the statement out loud, signed it, and initialed the Miranda warnings. Richardson did not ask for an attorney. It is not the policy of the police department to videotape or audiotape statements. Statements arising from a custodial interrogation may not be used by the State unless the State demonstrates that procedural safeguards were used to secure the privilege against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). The requirements of Miranda are codified in article 38.22 of the Texas Code of Criminal Procedure. See Jordy v. State, 969 S.W.2d 528, 531 (Tex.App.-Fort Worth 1998, no pet.). An accused may waive his Miranda rights provided that the waiver is made voluntarily, knowingly, and intelligently. Moran v. Burbine, 475 U.S. 412, 421 (1986) (citing Miranda v. Arizona, 384 U.S. 436 (1966)); Ashcraft v. State, 934 S.W.2d 727, 737 (Tex.App.-Corpus Christi 1996, pet. ref'd). Only if the totality of circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that an accused's Miranda rights have been waived. Moran, 475 U.S. at 421. According to Richardson, although he was warned of his rights under article 38.22 section (2)(a) of the Texas Code of Criminal Procedure, the statements he gave to the police officers did not show a voluntary waiver of those rights as required by article 38.22 section (2)(b). The statements signed by Richardson do, however, contain language clearly showing that Richardson waived his rights. And, considering the totality of the circumstances presented in this case, we hold that Richardson voluntarily waived his rights. When he arrived at the police substation, Richardson was first advised of his rights by a police officer. Then, after being transported to the homicide office, he was again advised of his rights when Detective Angel read from SAPD Form 66-E. Richardson signed the form. Richardson indicated that he understood his rights. Richardson initialed the Miranda warning on every page of his statement. That warning included the waiver language. When the officers visited Richardson in jail, they again advised him of his rights, and he signed yet another Miranda warning card. Richardson again indicated to the detectives that he understood his rights. Richardson then read his written statement aloud and initialed the Miranda warning that, again, contained the waiver language. Based on the waiver language initialed by Richardson on his statements and the totality of the circumstances, we hold that Richardson voluntary waived his rights, and his statements were properly admitted. We overrule Richardson's first issue on appeal. C. Were the statements inadmissible because they were not recorded? Richardson urges that his statements were not admissible because they were taken in violation of article 38.22 section 3(a). That section provides that an oral statement of an accused made as a result of custodial interrogation is not admissible against the accused unless it is electronically recorded. Richardson's statements, however, were not oral statements. Thus, Article 38.22 section 3(a) does not apply. We overrule Richardson's second issue on appeal. D. Was Richardson denied proper cross examination regarding admission of marijuana blunts? David Snow, an evidence technician with the San Antonio Police Department testified for the State. Snow was the lead technician to gather evidence from the car in which the victim had been riding when he was shot. Richardson requested the judge allow him to cross-examine Snow with regard to some marijuana blunts he found in the car. The State objected, arguing the evidence was not relevant and was prejudicial to the victim. In response, Richardson's attorney argued the following:I think the connection is that it is this young man's car — that they have been portrayed as being three kids that are on their way to McDonald's; that's all they are doing, they don't have anything else going on. That it goes to show — so in that vein, it goes to show bias and goes to show, you know, that there was some motive on their part. That they have the — I think it just goes to show some bias on their part.The trial court sustained the State's objection, stating that it would not allow the testimony. Richardson's attorney then made a bill of exceptions to prove that Snow, in fact, found the marijuana blunts in the car. On appeal, Richardson argues that the evidence should have been admitted to rebut a false impression that the victim and the occupants of his car were "happy go lucky boys on their way to McDonald's, with no mischief on their minds" and that the evidence of the marijuana blunts was necessary to prove he acted in self defense. We review a trial court's ruling on the admissibility of evidence for abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App. 1990). "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Here, the presence of marijuana blunts in the victim's car was not relevant to Richardson's self-defense strategy. The fact that marijuana blunts were in the car would not justify Richardson's shooting in self-defense nor would it have a tendency to show the victim shot at Richardson. We, therefore, hold that the trial court did not abuse its discretion in refusing to allow Richardson to cross-examine Snow with regard to the marijuana blunts and overrule Richardson's third issue on appeal. E. Did the trial court err in admitting evidence regarding a gun? Joe De La Luz, an evidence technician for the State, testified that he found a .22 caliber rifle under the front seat of a junked car located in the back of the residence where the shooting took place. At trial, Richardson objected to the admission of the rifle as irrelevant because it was not connected to Richardson, but instead was shown to have been connected to Richardson's co-actor, Calvin Richardson. On appeal, Richardson again urges that the rifle was irrelevant under rule 401. The State argues that the evidence is admissible because the court's charge authorized the jury to convict Richardson under the law of parties, and the rifle showed the context in which the shooting occurred. When an arrest is made during or immediately after the commission of an offense, the "context of the offense" rationale usually permits admission of matters pertaining to the arrest, including a defendant's acts and possessions, because such matters set the stage for the events of the offense and aid the jury's comprehension of the whole criminal transaction. Couret v. State, 792 S.W.2d 106, 108 (Tex.Crim.App. 1990). However, the evidence must still be relevant. Id. Same transaction contextual evidence is admissible only when the offense would make little or no sense without also bringing in the same transaction evidence. Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000); Peters v. State, 93 S.W.3d 347, 353 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Because the jury was authorized to find Richardson guilty as a party to the offense, the admission of the .22 caliber rifle, which was connected to Richardson's co-actor, Calvin Richardson, was relevant and admissible. We overrule Richardson's fourth issue on appeal.