Opinion
No. 01-03-00574-CR
Opinion issued November 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 338th District Court, Harris County, Texas, Trial Court Cause No. 922,950.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
MEMORANDUM OPINION
Cedrick L. Davis, appellant, pleaded not guilty to manslaughter. The jury found him guilty and assessed punishment at 35 years' confinement. In five points of error, appellant contends that (1) the trial court erred in admitting evidence of the search of appellant's apartment; (2) the trial court erred in denying his motion to suppress evidence of the illegal search; (3) appellant was denied effective assistance of counsel at trial; and (4) the evidence is legally and factually insufficient to support his conviction. We affirm.
BACKGROUND
In the early morning hours of September 1, 2002, Joey Garcia drove his car, with José Garcia in the passenger seat, around the parking lot of the Pinelake Condominium to see whether Joey could locate the apartment of a female friend. As Joey drove around the complex, José heard a car alarm "chirping" on a car belonging to appellant and someone yelling. As they turned around to see who was yelling at them, José "saw the fire" and heard two or three gunshots coming from the direction of where a male was standing; one of the gunshots struck Joey in the face. When José realized Joey had been shot, José took the driver's seat and drove to a nearby club where they found Houston Police Officers C. Slater and J. Lopez. José returned to the complex to show the officers where the shooting had occurred. After finding two spent shell casings below appellant's apartment, the officers knocked on the door of apartment 68, which was located near the stairwell where José had seen the male. Appellant's wife, Monica Davis, answered the door, but refused to allow the officers into her apartment. Davis denied hearing any gunshots. The officers informed Davis that an investigator from the police department might later want to talk to her. Sargent D. Bacon arrived, and the officers determined that the car with the chirping alarm was registered to appellant, who resided at apartment 68. When the officers returned to apartment 68 for the second time, Davis answered the door and invited Bacon inside. When Bacon told Davis he was looking for appellant, Davis said she had not seen him that night. Davis said that she had separated from appellant and he no longer lived in that apartment. Bacon informed Davis that he had a consent to search form and asked Davis if he could search the apartment. The officers did not have an arrest warrant or a search warrant. Bacon informed Davis that "[i]t could also be serious if she was hiding [appellant]" from the police. At first Davis refused, but she then orally agreed to the search and signed the form. During the search, the officers found appellant hiding in the bedroom closet. Appellant was placed under arrest and read his legal rights. At the Houston Police headquarters, Sargent E. Mehl again read appellant his rights, interviewed him, and made an audio recording of appellant's statement ("the confession"). Later that morning, appellant also made a recorded statement to Bacon regarding the gun used in the shooting. Joey died as a result of the gunshot wound.DISCUSSION
Consent to Search In his first point of error, appellant contends the trial court erred by admitting evidence of the search of appellant's apartment. Specifically, appellant contends that the arrest was the "fruit" of a warrantless search for which Davis's consent was involuntary, both in violation of the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 9 of the Texas Constitution. Appellant argues that the consent to search was not voluntary because Davis was coerced into signing the consent form and, therefore, the consent form should have been suppressed. Appellant claims Bacon threatened Davis that she could be faced with serious consequences if she did not allow the officers to search. The State contends that the officers' search was justified under the "consent" exception to the probable cause requirements of our state and federal constitutions. The State argues that Davis freely consented to the search and was not coerced by any officer to sign the consent form. Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997). For consent to be a valid exception, however, that consent must be voluntary. See Ohio v. Robinette, 519 U.S. 33, 40, 117 S. Ct. 417, 421 (1996). In order to be valid, the consent must "not be coerced, by explicit or implicit means, by implied threat or covert force." Schneckloth, 412 U.S. at 228, 93 S. Ct. at 2047; see also Allridge v. State, 850 S.W.2d 471, 493 (Tex.Crim.App. 1991) ("The consent must be shown to be positive and unequivocal, and there must not be any duress or coercion") (citation omitted). By the same token, consent is not established by "showing no more than acquiescence to a claim of lawful authority." Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 1790-91 (1968) (where officer falsely represented he had a valid search warrant, consent not voluntary). In determining whether a defendant's consent was voluntary, the State is required to prove the voluntariness of consent by clear and convincing evidence from the totality of the circumstances. See Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000). In making such a determination, we consider the following factors: whether the consenting person was in custody, whether he or she was arrested at gunpoint, whether he or she had the option of refusing consent, the constitutional advice given to the accused, the length of detention, the repetitiveness of the questioning, and the use of physical punishment. See Laney v. State, 76 S.W.3d 524, 532 (Tex.App.-Houston [14th Dist.] 2002), aff'd, 117 S.W.3d 854 (Tex.Crim.App. 2003). Courts also consider the characteristics of the consenting person, including the person's youth, education, and intelligence. See id. The evidence does not support appellant's argument that Davis's consent was rendered involuntarily. Davis was not uneducated or a child, but rather a female adult in her twenties. Davis was not under arrest, she was not being held at gunpoint, she was not in custody, and she was not being physically detained in any fashion. Appellant testified at the pretrial hearing on appellant's motion to suppress that the officers "were saying to [his wife] that she would be charged with aiding, abetting, involving herself in a murder investigation . . . [a]nd they came up with another big offensive case, too, or — so if she wouldn't tell us she was home alone or whatever." Bacon explained that he merely told Davis that since a serious offense had occurred, "[i]t could also be serious if she was hiding [appellant] from us." The testimony of Officer Bacon contradicts appellant's assertions that Davis's consent was coerced. Bacon never stated "one way or another" whether Davis could or would be charged with a criminal offense if she refused to sign the consent form. Bacon never indicated that Davis would receive leniency if she agreed to sign the form. Bacon testified at the hearing that, first, Davis orally consented to a search and then Bacon presented, explained, and read a consent to search form to her. Bacon's questioning of Davis was confined to a few minutes of questions asked while she remained in her apartment. The State admitted the consent to search form with Davis's signature on it into evidence. Immediately above where Davis signed her maiden name of "Monica Jackson," the form states in bold capital letters:I understand that I have the right to refuse to consent to the search described above and to sign this form. I further state that no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used against me to get me to consent to the search described above, or to sign this form.Officer Lopez's testimony supports Bacon's version of events. Lopez, who was standing inside the apartment doorway with Officer Slater, was present to hear Officer Bacon read the consent to search form and to see Davis sign the form. Lopez testified that he neither heard Bacon threaten Davis nor threatened Davis himself. Considering all of the circumstances and giving proper deference to the trial court's determination, we hold that the State proved by clear and convincing evidence that Davis freely and voluntarily consented to the police search. We overrule appellant's first point of error.
Voluntariness of Statements
Appellant, in his second point of error, contends that his two in-custody statements, which included a confession to shooting at Joey's car while Joey and José were in the vehicle, as well as a statement concerning the gun, were not voluntarily given and should have been suppressed. Appellant filed a pretrial motion to suppress his statements, and the trial judge conducted a hearing on the motion. The hearing consisted of the testimony of appellant and two police officers, Mehl and Bacon. The judge denied the motion and filed findings of fact and conclusions of law. We review a trial court's ruling on a motion to suppress evidence for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). In reviewing a trial court's ruling on a motion to suppress, we give almost total deference to a trial court's determination of historical facts, and we review de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). At a hearing to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence; the trial court's finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App. 1993). A confession is admissible if the confession was freely and voluntarily made. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2003). The United States Supreme Court has stated, "[A] confession made by a person in custody is not always the result of an overborne will. The police may be midwife to a declaration naturally born of remorse, or relief, or desperation. . . ." Culombe v. Connecticut, 367 U.S. 568, 576, 81 S. Ct. 1860, 1864 (1961). Before we can determine that appellant's confession was involuntary, we must conclude that appellant was unable to make an independent, informed choice of free will at the time the confessions were made. See Jones v. State, 944 S.W.2d 642, 651 (Tex.Crim.App. 1996). Appellant argues that both his statement to Mehl and his statement to Bacon were involuntary and were false because he was forced to fabricate his involvement in the shooting to protect his wife, Davis. He claims that the officers repeatedly threatened to charge his wife with a criminal offense and take her to jail if he did not make a statement to them. His statements were not made voluntarily because he "felt like [he] didn't have any choice . . . but to give those statements." Appellant testified that he had not slept for over 24 hours prior to the time he gave the first of his two statements. He contended that the circumstances of his confession put him in a state where he "really was not thinking straight at all" and that he "really didn't want [his wife] to get a criminal offense." During the suppression hearing, Officer Mehl testified about appellant's confession, which was the first in-custody statement that appellant gave. When he arrived at the police station, appellant's handcuffs were removed. Prior to appellant's confession, Mehl read appellant his legal rights. Appellant stated he understood his rights, and that he waived his rights. According to Mehl, appellant was alert and intelligent, and did not appear to be under the influence of drugs. Prior to and during Mehl's recording of the confession, appellant neither requested an attorney nor requested that the interview be terminated. In his confession, appellant explained that he shot in the direction of José and Joey to scare them away because he mistook them for car thieves. Mehl, who was unarmed during the encounter, testified that he did not coerce appellant into giving the confession and that he did not promise appellant anything in exchange for the confession. Officer Bacon testified about the second in-custody statement appellant gave, which concerned the whereabouts of the gun. Bacon read appellant his legal rights twice: the first time was before the tape had begun recording and the second time occurred during the recording. Appellant indicated that he understood his rights and waived them. Appellant neither requested an attorney nor requested that the interview be terminated. Bacon observed that appellant was alert, articulate, seemed intelligent, and did not appear to be under the influence of drugs when he gave his statement. Bacon testified that he did not coerce or threaten appellant to give this statement and did not promise appellant anything in exchange for the statement. The judge is the sole trier of fact and judge of the weight and credibility of the evidence. See Ballard v. State, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999). Giving almost total deference to the determination of these historical facts, we find no clear abuse of discretion in his finding that the appellant's statements were voluntary. We overrule appellant's second point of error.Ineffective Assistance of Counsel
In point of error three, appellant contends that he received ineffective assistance of counsel at trial. Specifically, appellant contends that his trial counsel was ineffective by (1) failing to request a Jackson v. Denno hearing on the voluntariness of the consent to the search of appellant's apartment; (2) failing to object to incriminating hearsay evidence that was admitted during the State's case-in-chief; and (3) failing to request a jury instruction in the jury charge on the admissibility of appellant's confession and his arrest. Under Strickland v. Washington, to prevail on an ineffective assistance of counsel claim, the applicant must show that (1) counsel's performance was deficient by falling below an objective standard of reasonableness and (2) there is a probability sufficient to undermine the confidence in the outcome that but for counsel's unprofessional errors, the result of the proceeding would have been different. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). We "indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable assistance," and that "the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)). Appellate review of defense counsel's representation is highly deferential and presumes that counsel's actions fell within the wide range of reasonable and professional assistance. Id. The appellant must overcome this presumption. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). Rarely will the trial record contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a serious allegation: "[i]n the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Gamble v. State, 916 S.W.2d at 93 (quoting Thompson, 9 S.W.3d at 813-14). The first prong of Strickland is not met in the instant case for any of the three sub-points cited by appellant to support this point of error. First, as explained above, we find the record supports the trial court's finding that the consent to search appellant's apartment was valid and voluntarily given. Therefore, trial counsel's failure to ask for a hearing concerning the consent to search was not a deficient performance of his duties. Second, appellant does not cite any specific instances where trial counsel failed to object to incriminating hearsay evidence that was admitted during the State's case-in-chief. Appellant merely refers us generally to the second and fourth volume of the reporter's record, which together contain 200 pages of testimony. This court is not required to sift through the record in search of support for appellant's broad assertions of error. See Tex.R.App.P. 38.1(h). Third, appellant offers no argument, authority, or citation to the record to explain how counsel's representation fell below the standard of prevailing professional norms by trial counsel's failure to request a jury instruction. Conclusory arguments which cite no authority present nothing for our review. See Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App. 1992). Therefore, appellant's claims relating to hearsay evidence and to a jury instruction are inadequately briefed. See Tex.R.App.P. 38.1(h) (brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record); Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000). Because appellant's arguments on this point of error contain no citations to the record, he has waived appellate review of his complaint regarding the hearsay evidence and the jury instruction. See Jensen v. State, 66 S.W.3d 528, 545 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). We overrule point of error three.Sufficiency of the Evidence
A. Legal Sufficiency In his fourth point of error, appellant asserts that the evidence was legally insufficient to support his conviction. Specifically, appellant contends that the State failed to prove beyond a reasonable doubt that appellant committed the offense of manslaughter. To establish the felony of manslaughter, the State had to prove that appellant recklessly caused the death of another. Tex. Pen. Code Ann. § 19.04(a) (Vernon Supp. 2004). A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex.App.-Houston [1st Dist.] 1997, no pet.). As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jurors may believe or disbelieve all or any part of a witness's testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981). Appellant contends that the evidence is legally insufficient to prove that he committed the offense of manslaughter because (1) the only witness to the shooting, José, testified that he could not identify appellant; (2) José could not say which way the shooter ran or which apartment the shooter went into; (3) no gun was ever recovered; (4) the State presented no probative evidence that appellant ever owned a gun that could be matched to the shell casings; (5) Michael Lyons testified that the tests of appellant's hands and arms were inconclusive as to whether or not appellant had recently fired a gun; (6) Joseph Matthews, who saw appellant turn off his car alarm, did not see appellant in possession of a gun; and (7) Matthews testified that, after the gunshots were fired, he heard steps going to the third floor, not the second floor on which appellant's apartment was located. At trial, the State presented the testimony of José, who was with Joey when he was shot. José heard someone yell and heard two or three gunshots coming from the direction of where a male was standing. Appellant's apartment was located near the same stairwell where José saw the man with a gun. Additionally, officers found spent bullet casings on the ground in the general area below this stairwell. While in custody, appellant admitted that he shot at the car because was trying to prevent someone from stealing his property. Appellant further admitted to another officer that he disposed of the gun he used to shoot at Joey's car shortly after the incident. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found that appellant was the man who shot and killed Joey. Accordingly, we hold that the evidence was legally sufficient to support appellant's conviction for manslaughter. We overrule appellant's fourth point of error.B. Factual Sufficiency
In his fifth point of error, appellant contends that the evidence was factually insufficient to support his conviction. We review the factual sufficiency of the evidence by reviewing all of the evidence neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In a factual-sufficiency review, we may not substitute our own judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). The Court of Criminal Appeals has recently discussed the factual sufficiency standard:There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We must consider the most important evidence that appellant claims undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant contends the evidence is factually insufficient because (1) the only witness to the shooting, José, testified that he could not identify appellant; (2) José could not say which way the shooter ran or which apartment he went into; (3) no gun was ever recovered; (4) no probative evidence was presented that appellant ever owned a gun that could be matched to the shell casings; (5) Michael Lyons testified that the test of appellant's hands and arms were inconclusive as to whether or not appellant had recently fired a firearm; (6) Joseph Matthews, who saw appellant turn off his car alarm, did not see appellant in possession of a gun; and (7) Matthews testified that, after the gunshots were fired, he heard steps going to the third floor, not the second floor on which appellant's apartment was located. Appellant's identity as the shooter is established by his own admission to shooting at Joey's car and disposing of the gun at the bayou near his apartment. The essence of appellant's complaints concern the lack of other evidence to establish his identity as the shooter. A rational jury could have concluded that appellant's confession was credible, thereby disposing of the need for other evidence to corroborate the confession. Although the State's witness, Michael Lyons, testified that the test of appellant's arms and hands was inconclusive as to whether or not appellant fired a gun, he also testified that an inconclusive test is the standard result and that actions such as washing your hands can affect the test. Another witness testified that even wiping your hands on your clothing can render the results of the test inconclusive. The defense called Joseph Matthews, appellant's neighbor, who saw appellant turn off his car alarm in the early morning hours of September 1, 2002, but did not see appellant in possession of a gun. Matthews heard the footsteps of someone walking up the stairwell to the third floor, higher than the second floor apartment that appellant lived in. However, on cross-examination, the State impeached Matthews with prior inconsistent statements regarding whether he had spoken to the police concerning this incident and whether he heard gunshots that night. A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997). The determination of what weight to give contradictory testimonial evidence is within the sole province of the jury, as it turns on an evaluation of credibility and demeanor. Id. at 408-09. Thus, the jury was free to believe all or any part of the testimony of the State's witnesses, and disbelieve all or any part of the testimony of appellant. A court of appeals must show deference to such a jury finding. Id. at 409. Examining all of the evidence neutrally, we conclude that the proof of guilt was not so obviously weak as to undermine confidence in the jury's determination; nor was the contrary evidence so strong that it greatly outweighed the proof of guilt. Accordingly, we overrule appellant's fifth point of error.