Opinion
No. 04-03-00327-CR
Delivered and Filed: June 9, 2004. DO NOT PUBLISH.
Appeal from the 175th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CR-6186, Honorable Mary Román, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
A jury found Tim Romo guilty of aggravated robbery. Romo was sentenced to fifty-five years imprisonment and brings this appeal urging three issues. Romo contends the trial court erred in: (1) allowing the prosecutor's unsworn testimony to bolster the credibility of an accomplice witness; (2) admitting Romo's confession made to the bailiff while he was in custody awaiting trial; and (3) failing to submit a jury instruction on the voluntariness of the confession he made to the bailiff. We overrule Romo's three issues and affirm the trial court's judgment.
Factual and Procedural Background
On the afternoon of July 17, 2002, Romo, his brother, Chris Romo, and Chris's friend, Angel Garza, were drinking beer in Chris's apartment. They then left to get more beer and to drive around. Chris was driving. Romo was riding in the front passenger seat. Angel was riding in the backseat along with Chris's three-year old daughter. At one point, they were stopped by a police officer who gave Chris a sobriety test. Although the officer allowed the men to leave, he retained Romo's driver's license. Romo became very upset because the officer had taken his license from him. Chris continued driving and eventually, at Romo's direction, pulled into a Diamond Shamrock store. Juan Huerta had stopped at the same Diamond Shamrock to put air in his tires. Romo got out of the car, pulled out a knife, and demanded Huerta's money and wallet. Huerta complied, Romo got back in the car, and Chris drove away. Huerta called the police and reported the incident. With Huerta's description of Chris's car, the police were able to locate and stop the vehicle. Huerta identified Romo as the man who had robbed him at knifepoint, and the police found the knife hidden under the backseat of the car. Romo was charged with aggravated robbery. During the trial, when Romo was being transported from the courtroom back to jail, the bailiff asked Romo about the status of his case and what type of case it was. Romo told the bailiff he was charged with aggravated robbery. He then admitted to having committed the robbery, but said there was no knife involved. At trial, over Romo's objection, the bailiff testified about Romo's confession. Romo was convicted of aggravated robbery; he appeals.Prosecutor's Bolstering of Accomplice Witness Testimony
In his first issue on appeal, Romo argues that the prosecutor gave unsworn testimony which bolstered Chris Romo's credibility. In his brief, Romo specifically complains of the State's questioning of Chris Romo:Q. All right. Now, there is no question about who it is that robbed this victim, is there?
A. There is no question about it.
Q. And that is something that you and I talked about. Did I tell you that I do respect and appreciate that this is painful for you?
A. Yes, sir.
Q. Did I express to you that I was sorry that you have —
Defense Counsel: Judge, I —
Prosecutor: — been placed in this position?
Defense Counsel: I'm going to object to [the prosecutor] testifying. If he wants to, he can get up there and testify. I'm not going to let him do that.
Prosecutor: I doubt he would really want me to, Judge, but the fact of the matter is, he has opened the door to the conversations that he and I had.
Court: The objection is overruled.
Q. In other words, I did give you some assurances that I was satisfied that you did not intend to commit this offense, didn't I?
A. Yes, sir.
Q. And one of the most important reasons for that is that victim heard you begging your brother to leave him alone?
A. Yes.
Q. That not only did the victim hear that, but that you said that, and that so did Angel?
A. Yes. That's what I told the detectives. I think I told them that. I don't know if it's in the statement, but I recall telling them that.
Q. I'm sorry. What?
A. I do recall, yes, that statement.
Q. And do you recall my expressing to you that because of all of that evidence, I believed you when you said that you had not committed this offense?
A. Yes, sir.
Q. That you didn't intend for it to be happening?
A. Yes.
Q. I mean, it's one thing if you have a bad feeling in the pit of your stomach because you know what your brother is capable of —
Defense Counsel: Your Honor, again I'm going to object, not only to leading, but to [the prosecutor]'s testifying.
Court: Ask another question.
Q. Did I tell you that I understood that there was a big difference between understanding what your brother was capable of, and in fact having the intent to commit the offense and aiding him to do it?
A. Yes.
Q. And did I explain to you that that was exactly why I believed the police officers who had made the decision not to charge you?
A. Yes.
Q. And did we also talk about the fact that if anybody was going to tell any lies in this, the only thing that would make sense if somebody wanted to lie would be for you to —
Defense Counsel: Again, Your Honor, I'm going to object to Mr. McClure testifying in this case, Your Honor.
Court: Ladies and gentlemen, I'm going to excuse you from the courtroom. Thank you.
Defense counsel then questioned Chris Romo on recross:
Q. Mr. Romo, Mr. McClure was asking about your brother. And let me ask you, is Angel capable of doing something like this, robbing somebody?
A. Yes.
Q. Now, Mr. McClure said, or told you after I gave you assurances. Do you remember when he said that?
A. He didn't give me assurances.
Q. Well, that was my question. He never said that to you?
A. No.
Q. Okay.
Mr. Cardenas: Pass the witness, Judge.The State then proceeded with its examination on redirect:
Q. When Mr. Cardenas asked you about assurances, I think what he's talking about, he can correct me if I'm wrong. I told you that I believe you, and that I believe the police officers, and I believe the witnesses that you didn't have any part to play in this crime.
A. If I take it the right way, I think you are saying you are sure of yourself that what you are saying.
Q. Well, did I tell you that I wanted you to be — that I wanted you to be as comfortable as you could under the circumstances talking with me?
A. Yes.
Q. And did I tell you that I believed that you did not play a role as an active participant with the intent to commit an aggravated robbery?
A. Yes.
Q. Didn't I, in fact, tell you that if I thought otherwise, that I wouldn't be talking to you?
A. (Nodding head affirmatively.)
Q. I saw you nod your head, but Mr. Richardson —
A. I would assume. Yes.This testimony indicates that the prosecutor was leading the witness. He was asking questions in the form of unsworn statements that indicated the prosecutor believed what the witness had told him about the events surrounding the robbery. Romo objected once to the prosecutor's leading questions and he objected three times to the prosecutor testifying. Romo did not preserve error, however, because: (1) he failed to object each time the prosecutor made statements that amounted to testifying and (2) because he did not object at trial that the prosecutor was bolstering the credibility of an accomplice witness. Counsel must object each time objectionable evidence is offered. Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984); see Tex.R.App.P. 33.1. Further, in order to properly preserve error for appeal, counsel must make a timely objection giving specific grounds, and the issue raised on appeal must comport with the objection made at trial. Zemen v. State, 912 S.W.2d 363, 366 (Tex. App.-Houston [14th Dist.] 1995, no pet.) (holding error not preserved where the first time appellant used the word "bolstering" was in her appellant's brief). An objection as to bolstering and an objection as to the prosecutor giving unsworn testimony are two distinct objections. Compare Vera v. State, 709 S.W.2d 681, 686 (Tex. App.-San Antonio 1986, pet. ref'd) ("`Bolstering' occurs when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party."), with McKay v. State, 707 S.W.2d 23, 37 (Tex.Crim.App. 1985) (prosecutor may argue opinions so long as they are based on evidence and do not constitute unsworn testimony). Even if Romo had properly preserved the bolstering issue for appeal, there is no error because Romo invited the prosecutor's questions. On cross-examination, Romo's attorney inquired into what discussions the witness had had with the prosecutor with regard to whether the witness was going to be charged with a crime. Thus, Romo opened the door for the prosecutor to clarify on re-direct examination what had been discussed. See Williams v. State, 607 S.W.2d 577, 580 (Tex.Crim.App. 1980) (panel op.). We overrule Romo's first issue on appeal.
Confession Made to the Bailiff
In his second issue on appeal, Romo argues that the confession he made to the bailiff should have been suppressed because it was made as a result of custodial interrogation. We review the trial court's denial of a motion to suppress under an abuse of discretion standard. Williams v. State, 82 S.W.3d 557, 560 (Tex. App.-San Antonio 2002, pet. ref'd). When we apply this standard, we give the trial court's findings of fact "almost total deference," but we review the trial court's application of the law to the facts do novo. Id. The trial court found Romo's admission to be voluntary. Because this finding does not involve the witness's credibility, but rather the legal issue of whether Romo's admission was the result of interrogation, we review the trial court's finding de novo. Deputy Salinas, who transports prisoners between the jail and the court, testified as follows:Q. As part of your duties in that regard, do you, I guess, keep track of what cases are going to go to trial after the Monday morning trial dockets are called, things like that?
A. Yes, sir.
. . .
Q: When you had that conversation with Mr. Romo, tell the jury what happened.
A. I asked him what the outcome of his case was when I was taking him.
Q. When you say outcome, are you talking about like I just described a minute ago; you needed to know —
. . .
Q. Did you need to know whether or not the case was going to trial or otherwise?
A. Yes sir. I did.
Q. So, you asked him what?
A. I asked him about his case, what the outcome was.
Q. All right. And how did he respond?
A. He stated that he was going to go trial.
Q. Okay. Did you ask him any other questions?
A. Yes.
Q. What question did you ask?
A. I asked him what type of case it was.
Q. And how did he respond?
A. He stated that it was an aggravated robbery.
Q. Did you ask him any further questions at that point?
A. No.
Q. Was there a pause and then he said something else?
A. Right after he told me what type of case it was, he went on to say that — he goes, yeah, I admit I did it. He goes, but I — he goes I don't want to take the time that they are offering me. And then he went on to say, and there was no knife.Romo agrees that it was proper for Salinas to ask about the outcome of Romo's case because it was within the scope of his duties. Romo argues, however, that by asking Romo what type of case he had pending, Salinas exceeded the scope of his duties and therefore the question was improper. If a statement made by an accused does not stem from custodial interrogation, it is admissible. Roquemore v. State, 60 S.W.3d 862, 868 (Tex.Crim.App. 2001). In this case, there is no question Romo was in custody; the only disputed issue is whether there was an "interrogation." "Interrogation `refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest or custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.'" Miffleton v. State, 777 S.W.2d 76, 81-82 (Tex.Crim.App. 1989) (citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). When the officer's statements are designed to elicit incriminating statements from the defendant, it is interrogation. Id. at 82. Statements that the accused volunteers are admissible. Miranda v. Arizona, 384 U.S. 436, 478 (1966); Jefferson v. State, 974 S.W.2d 887, 890 (Tex. App.-Austin 1998, no pet.). Thus, not all custodial questioning can be classified as "interrogation." Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim. App. 1990). Courts have held a variety of questioning to be outside the constitutional definition of "interrogation." Id. In Jones, the court of criminal appeals gave some examples where certain questioning by police officers has not constituted "interrogation":
For example, routine inquiries, questions incident to booking, broad general questions such as "what happened" upon arrival at the scene of a crime, and questions mandated by public safety concerns e.g. "where did you hide the weapon" when the weapon has just been hidden in the immediate vicinity. See generally Ringel, Searches and Seizures, Arrests and Confessions, § 27.4 (Clark Boardman Company, Ltd. 1987). In Texas, we have held that asking a suspect in custody whether he will take a blood alcohol test or repeatedly asking a suspect to give a breath sample are not "interrogations." McCambridge v. State, 712 S.W.2d 499 (Tex.Crim.App. 1986) (remanded on other grounds); see McCambridge v. State, 778 S.W.2d 70 (Tex.Crim.App. 1989) (affirmed on other grounds) (blood test). Lower courts have also held several other police questions to be non-interrogative. Massie v. State, 744 S.W.2d 314 (Tex. App.-Dallas 1988, pet. ref'd.) ("Where are you going?" to a DWI suspect stopped on the street); DeLeon v. State, 758 S.W.2d 621 (Tex. App.-Houston [14th Dist.] 1988, no pet.) (asking a suspect where the murder weapon was). But see Sims v. State, 735 S.W.2d 913 (Tex. App.-Dallas 1987, pet. ref'd.) (holding that questions regarding when a defendant last ate, and asking what day, date and time it was did amount to interrogation).Id. at 174 n. 3. It appears in this case that the questions the bailiff asked Romo were merely routine inquiries. There is nothing in the record to indicate the bailiff should have known that when he asked Romo what kind of case it was, that Romo would admit to having committed the crime. We agree with the trial court's finding that Romo's statement was voluntary and not the result of questioning that the bailiff had reason to know would elicit a confession. We overrule Romo's second issue on appeal.