Opinion
Nos. 05-03-00577-CR, 05-03-00578-CR, 05-03-00579-CR
Opinion Filed June 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-01356-JV, F02-01357-JV, and F02-01358-JV. Affirmed.
Before Justices JAMES, BRIDGES, and LANG-MIERS.
OPINION
Richard Allen Swartz appeals his conviction for one count of aggravated assault of a public servant and two counts of theft of property, enhanced by two prior felony convictions. After a jury trial, appellant was sentenced to twenty years of imprisonment for each theft and ninety-nine years of imprisonment for the aggravated assault of a public servant. Appellant challenges the legal and factual sufficiency of the evidence to support his conviction for aggravated assault of a public servant. Appellant also argues that the trial court erred in admitting a videotape of his confession because it was coerced. In addition, appellant contends that the trial court erred in denying his initial request to represent himself. We affirm the trial court's judgments.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of stealing two cars. The facts about those offenses are not in dispute. A maroon 1991 Honda Accord was stolen on August 27, 2001, from a gas station while the owner of the car was inside paying for gas, and a used beige 1999 Nissan Maxima was stolen on October 31, 2001 from a car dealership. Appellant was also convicted of aggravated assault of a public servant. That offense occurred on October 24, 2001. Officers Ziekle and Garrett, uniformed motorcycle police officers, were working speed enforcement on Montfort Drive in Addison. Officer Ziekle decided to pursue and stop a speeding maroon Honda Accord. He turned his motorcycle warning lights on, followed appellant down the street and into a busy shopping center and motioned appellant to pull over. Although it initially appeared that appellant was going to stop, he instead accelerated through and out of the shopping center, speeding into heavy traffic on Montfort Drive. He ran a red light, almost striking a pedestrian, and drove into a residential subdivision. Officer Ziekle continued the chase with his warning lights and siren on. He called for back up and Officer Garrett joined him in the chase. The officers followed appellant into the subdivision but the officers lost sight of the car. One of the subdivision residents was outside and pointed the officers to where appellant was hiding in the car behind some bushes at the end of a cul de sac. Officer Ziekle drove his motorcycle into the cul de sac, saw appellant and positioned his motorcycle to the side and in front of the car. Straddling his motorcycle, he pulled out his gun and pointed it at appellant while he told him to get out of the car. He was five to eight feet away from appellant. Appellant looked at him, smiled, and accelerated, coming very close to hitting Officer Ziekle. At the same time, Officer Garrett followed Officer Ziekle down the street toward the cul de sac, got off of his motorcycle and ran with his gun drawn toward the area where Officer Ziekle had stopped. After appellant accelerated past Officer Ziekle, he raced toward and nearly hit Officer Garrett. Officer Garrett fired his gun twice at the car appellant was driving. The car passed within a foot of Officer Garrett but did not hit him. Officer Ziekle chased appellant through heavy traffic, but appellant escaped. Approximately two months later, appellant was arrested based upon an informant's tip. Appellant was taken to the Addison Police Department and interrogated. The interrogation was videotaped. At the beginning of the interrogation, appellant was advised of his rights and told that he had been arrested for a parole violation. During this interrogation, the officers suggested that appellant had been identified by the two motorcycle officers; that the motorcycles had video cameras that recorded the incident; that appellant would be "going to prison" for violating the terms of his parole; and that appellant was "done," unless he got help. Appellant did not ask for counsel, but he indicated that he did not wish to discuss the thefts or the incident involving the two motorcycle officers. The police ended the interrogation and transported appellant to a jail cell. Approximately one hour later, on his own initiative, appellant informed the jailer that he wanted to speak with the officers. He returned for additional interrogation. During the questioning, appellant admitted that he stole the 1999 Nissan and told the officers where they could find the Honda Accord. He also discussed the assault incident in detail. He told them that he was "cornered" in the cul de sac, that he did not intend to hurt the police officers and that he was just trying to get away as fast as he could because he was in a stolen car. Appellant was indicted for two counts of theft of property in the amount of $1,500.00 or more, but less than $20,000.00, and for one count of aggravated assault of a public servant, enhanced by two prior felony convictions. After voir dire, appellant told the trial court that he wished to waive his right to counsel. The trial court denied the request, stating that the trial had already started. The jury panel was sworn and excused for the remainder of the day. The following morning, prior to any hearings, rulings, or testimony, the trial court asked appellant if he still wanted to represent himself. Appellant told the court that he did. The trial court questioned and warned appellant about representing himself. The trial court also asked defense counsel if he thought appellant was competent. Defense counsel told the court that appellant was mentally competent to stand trial and to make the decision to represent himself. The trial court explained the charges, the enhancements, and the penalty ranges of the three offenses appellant was charged with committing. In addition, the trial court told appellant that he would represent himself by himself and not with co-counsel. Further, the trial court cautioned appellant that he would be held to the same standard as all attorneys, that he would be expected to conduct himself in court like a lawyer, and that he would be expected to make legal objections, and examine and cross-examine witnesses according to the Code of Criminal Procedure and the Rules of Evidence. The trial court warned appellant that he might waive any rights he had on appeal if he failed to object and that he might not be able to get evidence admitted at trial if he did not properly offer it into evidence. The trial court also asked appellant about his educational background and appellant told him that he had a bachelor's degree in psychology. The trial court explained what leading questions are and that they are objectionable. He explained that the jury would be given instructions in written form and that he would be expected to object to the written instructions just as a lawyer would be expected to object. At the conclusion of the trial court's questions and warnings, the court again told appellant that he would not advise him to represent himself and that "[I] feel like it's going to be a very, very risky course for you to take." He asked appellant if he understood and appellant replied that he did. The trial court next engaged appellant in a discourse about several issues in the case. Appellant explained that he was not happy with his appointed counsel. The trial court explained that he was entitled to appointed counsel but not appointed counsel of his choice. Appellant also expressed complaints about evidence and alleged misrepresentations to the trial court. The trial court discussed these issues on the record with appellant and then told him that the court needed to know whether he was going to represent himself because the trial was going to begin. After a break, the trial court again asked appellant if he still wanted to represent himself. Appellant told the court that he did. The court told him again that, "Of course you know the court doesn't think you should, I think it's a big mistake. And, now I need to know for the record, do you want to represent yourself, yes or no?" Appellant responded "yes." Before the jury was brought in, the trial court explained that appellant's former counsel would be available to consult as a courtroom observer, but would not be allowed to participate in the trial or sit with him at the counsel table. The trial court then granted appellant's request to represent himself and appointed standby counsel. During the trial, the State offered into evidence the videotape of the complete interrogation and a version redacting appellant's statements concerning prior convictions. Before the tape was offered, the court held a hearing on the motion to suppress the videotape as evidence. Appellant did not testify or offer evidence. Sergeant Turner was the only witness. The complete videotape was admitted for the record and the redacted version was admitted for all purposes. The redacted version was shown to the jury. At the conclusion of the trial, the jury found appellant guilty on all counts. After a hearing on punishment, the jury sentenced appellant to twenty years of imprisonment for each theft and ninety-nine years of imprisonment for the aggravated assault of a public servant. Appellant appeals his convictions for the thefts and the aggravated assault.II. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
In his first two issues, appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for aggravated assault of a public servant. Specifically he argues that, at most, he committed the offense of evading arrest and that the evidence is legally and factually insufficient to prove that he "intentionally and knowingly" threatened Officer Garrett with imminent bodily injury.A. Legal Sufficiency of the Evidence
The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). Cf. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed. 560, 573 (1979). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In a legal sufficiency review of the evidence, the jury's inference of intent is afforded greater deference than the evidence supporting proof of conduct. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim. App. 2000). Circumstantial evidence of intent is not required to meet the same rigorous criteria as circumstantial proof of other offensive elements. Id. In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and non-favorable, nor is appellant's version of the facts adopted. Id. at 917. Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex.Crim.App. 1998).B. Factual Sufficiency of the Evidence
The question to be answered by the reviewing court in a factual sufficiency review is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). A review of the evidence for factual sufficiency is guided by three principles. Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997). First, deference is given to the findings of the fact finder; the evidence will not be re-weighed. Id. at 407. Second, a finding of factual insufficiency must be supported by a detailed explanation since the fact finder can accept witness testimony or reject it. Id. However, the existence of contrary evidence is not enough to support a finding of factual insufficiency. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Third, all of the evidence is viewed in a neutral light. Zuniga, 2004 WL 840786, at *4; Cain, 958 S.W.2d at 408; Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App. 2002); Johnson, 23 S.W.3d at 11; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The evidence weighed by the fact-finder tending to prove the existence of the fact in dispute is compared to the evidence tending to disprove that fact. Santellan v. State, 939 S.W.2d 155, 164 (Tex.Crim.App. 2003). Reversal for factual insufficiency occurs only when: (1) the evidence is so obviously weak that a conviction is clearly wrong and manifestly unjust; or (2) based upon the contrary evidence, the beyond a reasonable doubt burden of proof could not have been met. Zuniga, 2004 WL 840786, at *7. Cf. Vasquez, 67 S.W.3d at 236; Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129.C. Applicable Law
The offense of aggravated assault of a public servant is stated, in part, in Section 22.01(a)(2) of the Texas Penal Code as follows:(a) A person commits [assault], if the person:
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse.
Tex. Penal Code Ann. § 22.01(a)(2) (Vernon 2003). An assault under Section 22.01(a)(2) of the Texas Penal Code is aggravated when the accused uses or exhibits a deadly weapon during the assault. Tex. Penal Code § 22.02(a)(2). Additionally, an aggravated assault under § 22.02(a)(2) of the Texas Penal Code is a felony if it is committed against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. Tex. Penal Code Ann. § 22.02(b)(2).The focus of the offense of assault is on whether appellant intended to or knowingly caused the victim to have a reasonable apprehension of imminent bodily injury. Welch v. State, 880 S.W.2d 225, 226 (Tex. App.-Austin 1994, no pet.). Generally, a person acts intentionally with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct. Tex. Penal Code § 6.03(a). A person acts knowingly when he is aware of the nature of the conduct. Tex. Penal Code § 6.03(b). The jury determines the issue of intent. See Moore v. State, 54 S.W.3d 529, 539 (Tex. App.-Texarkana 2001, pet. ref'd). The intent of the accused cannot be determined merely from the victim's fear at the time of the offense. Dues v. State, 634 S.W.2d 304, 305 (Tex.Crim.App. 1982). However, the jury may infer the intent of the accused from his acts, words, and conduct. See id. at 305. See also Moore, 54 S.W.3d at 539.
D. Application of the Law to the Facts
Appellant argues that the evidence at trial is legally and factually insufficient to prove that he "intentionally or knowingly" threatened the police officer. Essentially he argues that his conduct was misinterpreted because he did not intend to hurt the officer but was, instead, attempting to evade arrest because he was driving a stolen car. He contends that the evidence of the victim's fear is not sufficient to establish his intent. The State responds that the evidence demonstrates that a rational trier of fact could have found beyond a reasonable doubt that appellant intended to commit assault.Under the legal sufficiency standard, we review the evidence in the light most favorable to the verdict. There is evidence that appellant "intentionally and knowingly" committed assault. It is undisputed that appellant drove the stolen Honda Accord at a high rate of speed toward Officer Garrett. The only evidence that was introduced to show appellant did not intend to threaten the officers was his self-serving statement in the videotaped interrogation that he was trying to evade arrest because he was driving a stolen car and that he did not intend to hurt the officers. It was within the jury's discretion to disbelieve appellant's self-serving statements about his intent. See Wyatt v. State, 23 S.W.3d 18, 30 (Tex.Crim.App. 2000). A reasonable fact-finder could infer that appellant "intentionally and knowingly" threatened the officer with imminent bodily injury using or exhibiting a deadly weapon and knowing that the officer was a public servant. Under the factual sufficiency standard, we review the evidence in a neutral light. There is ample evidence from which a fact-finder could conclude that appellant "intentionally and knowingly" committed assault. Appellant challenges the jury determination because it appears that the jury did not believe him. However, the jury was entitled to disbelieve appellant's self-serving statements. See Bustamante v. State, 106 S.W.3d 738, 741 (Tex.Crim.App. 2003) (the jury was well within its discretion to believe appellant's prior statements and to disbelieve the self-serving statements made on the witness stand). Simply because appellant presents a different version of the events does not render the evidence factually insufficient. See Anderson v. State, 701 S.W.2d 868, 872 (Tex.Crim.App. 1985). The jury's verdict was not so contrary to the evidence that it is clearly wrong and unjust, and the contrary evidence is not sufficient to establish that a rational trier of fact could not have found appellant guilty beyond a reasonable doubt. The evidence is factually sufficient to establish aggravated assault of a public servant, even after considering appellant's statements in the videotaped interrogation. After reviewing all of the evidence under the appropriate standards of review, we conclude that appellant has not demonstrated that the evidence is not legally or factually sufficient to support appellant's conviction for aggravated assault. Appellant's first and second issues are overruled.
III. ADMISSION OF THE VIDEOTAPED INTERROGATION
Appellant argues in his third issue on appeal that the trial court erred in admitting the videotape of his interrogation into evidence. Specifically, appellant contends that his confession on the videotape was the product of police coercion.
A. Preservation of Error
Texas Rule of Appellate Procedure 33.1 establishes the prerequisites for preserving an error for appellate review. Pursuant to Rule 33.1, appellate review is waived unless the record shows that the appellant timely complained to the trial court stating the grounds for the ruling sought with sufficient specificity, unless the grounds were apparent from the context, and obtained a ruling on the complaint. Tex.R.App.P. 33.1; Daniels v. State, 25 S.W.3d 893, 897 (Tex. App.-Houston [14th Dist.] 2000, no pet.); Bartley v. State, 789 S.W.2d 288, 291 (Tex. App.-Dallas 1990, pet. ref'd) (to preserve a complaint for appellate review, the complaint must be made with sufficient specificity or clarity to make the trial court aware of the complaint, unless the grounds are apparent from the context). A complaint raised for the first time on appeal is not preserved for appellate review. Bell v. State, 938 S.W.2d 35, 47-8 (Tex.Crim.App. 1996) (en banc); Foster v. State, 874 S.W.2d 286, 289 (Tex. App.-Fort Worth 1994, pet. ref'd). Additionally, when an appellant has received all of the relief he requested at trial, there is nothing to complain of on appeal. Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993).
B. Admissibility of the Interrogation Videotape
Appellant claims the trial court erred in denying his motion to suppress his videotaped statement. He contends that it was coerced because the interrogating officers told him that he had been identified by the two motorcycle officers; that the motorcycles had video cameras that recorded the incident; that he would be "going to prison" for violating the terms of his parole; and that he was" done," unless he got help. The State contends that appellant's argument is waived because it was not raised in the trial court because appellant did not raise a question of voluntariness by presenting evidence in the trial court, and that the alleged misrepresentations of the officers were not improper and did not render the confession involuntary.
1. standard of review
A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard of review gives almost total deference to the trial court's determination of historical facts and applies a de novo review to the trial court's application of the law to those facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). The trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000).
2. application of the law to the facts
During a pre-trial discussion, appellant's counsel advised the trial court that he had made certain objections to the videotape and that the State had agreed to edit the videotape. In addition, appellant's counsel stated that the admissibility of the videotape was contested on the grounds that appellant was not properly Mirandized and that the videotape was not continuous.At the hearing on the motion to suppress, appellant, representing himself, did not testify or offer evidence; Sergeant Turner was the only witness. During appellant's argument at the hearing, he "request[ed] that the videotaped interview be submitted to the jury for reasonable doubt." The trial court asked appellant two times if the court understood correctly that appellant wanted to submit the videotape to the jury. Appellant told the court that he did. After the State presented its argument on the motion to suppress, the trial judge asked whether appellant was contesting the voluntariness of the statement on the videotape. Appellant responded that he was. For a third time, the trial court asked appellant who he wanted to decide whether the videotaped statement was voluntary, the judge or the jury. Appellant responded that he wanted both the judge and the jury to decide. At the conclusion of the hearing on appellant's motion to suppress, the trial court found that at the time the videotape was made, appellant was in custody, that he freely and voluntarily waived his Miranda rights, and that the custodial interrogation was valid. The trial court ruled that the videotape containing appellant's confession was admissible. After the trial court ruled that the videotape was admissible, there was a discussion about showing the videotape to the jury. During this discussion, it became apparent that there were three versions of the videotape, including one complete version and two redacted versions. Appellant complained that he did not want the redacted versions shown to the jury because he wanted the jury to hear a specific portion of the interrogation that he believed his attorney had arranged for the State to redact. The State responded that the redacted videotape contained the portion of the interrogation that appellant wanted the jury to hear. The trial court told appellant that if the portion of the videotape he wanted the jury to hear had been redacted, he could introduce that evidence. When the State offered the videotapes into evidence, appellant stated that he had no objection to them. Further, after appellant had the opportunity to view the redacted videotape, the trial court asked if appellant had any additional concerns. Appellant responded, "[t]o be honest with you, I was pretty happy with the video." Appellant argues for the first time on appeal that the videotaped interrogation was involuntary because the police deceived him when the interrogating officers told him that he had been identified by the two motorcycle officers; that the motorcycles had video cameras that recorded the incident; that he would be "going to prison" for violating the terms of his parole; and that he was "done" unless he got help. First, although appellant generally claimed during the hearing on the motion to suppress that his statement was involuntary, he did not specify how he wanted the trial court to rule, did not offer any evidence to support his contention, or controvert the testimony of the State's witness. Second, appellant's arguments on appeal are substantially different from his complaints to the trial court. Appellant asked the court to admit the videotape for two purposes. He told the trial court that he wanted both the judge and the jury to decide whether his videotaped statement was voluntarily made, and he also told the court that he wanted it admitted "for reasonable doubt." He contends on appeal that it should not have been admitted at all. As a result, appellant waived any claimed error. Further, the types of statements appellant complains about relate directly to appellant's guilt. Mis-representations relating to an accused's connection to a crime are the least likely form of police deception to render a confession involuntary. Green v. State, 934 S.W.2d 92, 100 (Tex.Crim.App. 1996). Appellant's third issue on appeal is overruled.
IV. RIGHT TO SELF-REPRESENTATION AND WAIVER OF RIGHT TO COUNSEL
In his fourth issue on appeal, appellant argues that the trial court erred by initially denying his request to waive his right to counsel. Appellant claims that the initial refusal of his right to self-representation denied him the right to exercise his peremptory challenges without the interference of his trial counsel and the opportunity to conduct a Batson hearing. See Batson v. Kentucky, 476 U.S. 79, 89 (1986). The State responds that peremptory challenges had already been exercised prior to appellant's request to waive his right to counsel. In addition, the State argues that nothing affecting the trial occurred between the time the trial court initially denied appellant's right to self-representation and the time the trial court granted the request.At the conclusion of voir dire, after all challenges for cause and peremptory challenges had been made, but prior to the trial court's announcement of the identity and the empaneling of the jurors, appellant asked the trial court to allow him to represent himself. The trial court initially denied appellant's request stating that the trial had already begun and that the request was untimely. Immediately after the ruling, the trial court empaneled the jury, discussed some pre-trial matters, and concluded the proceedings for the day. The following morning, before discussing any other matters, the trial court asked appellant if he still wanted to represent himself. Appellant indicated that he did. The trial court conducted a lengthy discussion with appellant and warned him about the dangers and disadvantages of self-representation. The trial court then granted appellant's request to waive his right to counsel and to proceed pro se. Appellant correctly argues that the United States Supreme Court has recognized the right to self-representation as a "structural error," which can never be treated as a harmless error. In re K.R., 63 S.W.3d 796, 799-800 (Tex. 2001), cert. denied, Rodriguez v. Texas Dept. of Protective Services, 536 U.S. 941 (2002); Nelson v. State, 810 S.W.2d 753, 755 (Tex. App.-Dallas 1991, pet. ref'd). Nevertheless, although the trial court initially denied appellant's request to waive his right to counsel, the trial court granted appellant's motion and changed its ruling prior to any substantive continuation in the proceedings. When an appellant has been provided with the relief he requested at trial, there is nothing to complain of on appeal. Cook, 858 S.W.2d at 473. Appellant's fourth issue on appeal is overruled.
V. CONCLUSION
The evidence is legally and factually sufficient to support the jury's conviction of appellant for aggravated assault of a public servant. Appellant's complaint that the trial court erred in denying his motion to suppress the videotape of his interrogation is waived because the complaint raised on appeal is different from the complaint argued to the trial court and the grounds asserted were not stated with sufficient specificity. Appellant's complaint that the trial court erred in initially denying his request to proceed pro se is overruled because the trial court granted appellant's request.The trial court's judgments are affirmed.