No. 13-06-222-CR
Opinion delivered and filed August 9, 2007. Do not publish. Tex. R. App. P. 47.2(b).
On appeal from the 21st District Court of Bastrop County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and GARZA. Memorandum Opinion by Justice GARZA.
DORI CONTRERAS GARZA, Justice.
Appellant, Sterling Laden Emerson, was indicted for murder. Tex. Pen. Code Ann. § 19.02 (Vernon 2003). Without the benefit of a plea agreement, appellant pled guilty to the offense of murder and was sentenced by jury to life imprisonment. By three issues appellant claims: (1) article 1.051 of the Texas Code of Criminal Procedure violates the Equal Protection Clause of the United States and Texas Constitutions, (2) the trial court abused its discretion in admitting appellant's confessional statement because the statement was not voluntarily given due to appellant's intoxication, and (3) he received ineffective assistance of counsel. We affirm.
I. Factual and Procedural Background
On the night of May 4, 2005, Brian Fore, Brittany Fore, and their baby went to the "hobo camp." Brian was known to law enforcement to be a thief, drug user, and drug dealer. Brittany testified that a party was in progress and that people, including she and Brian, were doing drugs and drinking beer. At the "hobo camp," Brittany also saw appellant smoking methamphetamine out of a light bulb. The party lasted through the night and into the early morning. On the morning of May 5, 2005, the Fores prepared to leave the "hobo camp." Brian prepared the car seat while Brittany held the baby. After Brian secured the car seat, appellant emerged from the woods and stepped between Brian and Brittany. From point-blank range, appellant shot Brian in the head with a .22 caliber pistol. Brian died instantly. Officer Curtis Leon Davis, Jr., testified there was no indication of a previous altercation between Brian and appellant. After obtaining a description of the suspect, police arrested appellant as he was walking down a street close to the crime scene. Later that day, while allegedly under the influence of voluntarily consumed narcotics, and after having been read his Miranda rights, appellant gave a videotaped statement and signed a written statement confessing to the murder of Brian Fore. See Miranda v. Arizona, 384 U.S. 436, 460 (1966). Appellant then assisted law enforcement by leading officers to the country back road where he had disposed of the weapon. On May 6, 2005, appellant was magistrated by Justice of the Peace Raymah M. Davis. While appellant was being magistrated, he filed an "Affidavit of Indigency" and requested the assistance of court appointed counsel. On May 9, 2005, after again having his Miranda rights read to him, appellant gave another videotaped statement to Officer Davis. Then, on May 11, 2005, at about 2:20 p.m., and prior to the appointment of counsel, appellant initiated contact with Officer Davis and, after being read his Miranda rights, gave another videotaped statement, again confessing to having committed the murder. On May 11, 2005, by facsimile transmission at 4:20 p.m., Howard Jenkins was notified that he had been appointed by the trial court to represent appellant. On February 27, 2006, appellant filed a motion to suppress all evidence, including any and all oral and written statements on the ground that his statements were not voluntary due to his intoxicated state at the time they were given. The trial court deferred ruling on the motion, explaining that a ruling would be made after the trial court saw all the evidence and after it reviewed applicable case law. Appellant has not directed our attention to anywhere in the record reflecting that the trial court ruled on his motion. Further, he does not allege in his brief that the motion was ever ruled on. On February 28, 2006, without a ruling on his motion to suppress, appellant entered an "open" plea of guilty to the charge of murder and elected to have the jury assess punishment. The trial court then proceeded with the punishment phase of trial. During the punishment hearing, the State moved to admit appellant's May 11th videotaped statement (State's Exhibit 27-A and 27-B). Outside the presence of the jury, appellant objected to the evidence on grounds that the statement was obtained prior to appellant having been appointed counsel. The trial court then heard testimony from the interviewing officer that appellant initiated the contact with the officer, and was provided a copy of appellant's May 5th "Inmate Request Form" (State's Exhibit 103) showing appellant initiated contact. Then, on March 1st, in the presence of the jury, appellant re-urged his objection to the admission of the May 11th videotaped statement. The trial court overruled the objection and admitted appellant's May 11th videotaped statement into evidence. During the February 28th punishment hearing, and outside the presence of the jury, appellant objected to the admission of his May 5th written and videotaped statements on grounds that they were involuntarily given due to intoxication. The record is unclear as to whether the trial court made a ruling at that time. Nonetheless, appellant renewed his objections, in the presence of the jury, during the March 1st punishment hearing. The trial court overruled the objections, and the written statement (State's Exhibit 2) and videotaped statement obtained May 5th (State's Exhibits 1-A and 1-B) were admitted. The jury sentenced appellant to life imprisonment. Appellant did not file a motion for new trial. This appeal ensued. II. Plea of Guilty
Because appellant pled guilty without the benefit of a sentencing recommendation, he waived the right to appeal any non-jurisdictional defects that occurred before the entry of the plea, other than the voluntariness of his plea. See Perez v. State, 129 S.W.3d 282, 288 (Tex.App.-Corpus Christi 2004, no pet.) (citing Lewis v. State, 911 S.W.2d 1, 4-5 (Tex.Crim.App. 1995); Broddus v. State, 693 S.W.2d 459, 460-61 (Tex.Crim.App. 1985)); Martinez v. State, 109 S.W.3d 800, 801 (Tex.App.-Corpus Christi 2003, pet. ref'd). However, if the judgment was not rendered independently of potential error occurring before entry of the plea, appellant may appeal that error. See Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000) ; Perez, 129 S.W.3d at 288 (citing Monreal v. State, 99 S.W.3d 615, 619 (Tex.Crim.App. 2003)); Jordan v. State, 112 S.W.3d 345, 347 (Tex.App.-Corpus Christi 2003, pet. ref'd). In addition, a defendant who makes an "open" plea of guilty can appeal rulings on written motions and jurisdictional issues. Tex. R. App. P. 25.2; see Young, 8 S.W.3d at 666-67. III. Texas Code of Criminal Procedure Article 1.051
In his first issue, appellant claims article 1.051(c), as applied to him, violates the Equal Protection Clause of the United States and Texas Constitutions. See U.S. Const. amend. VI; Tex. Const. art. I § 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon 2005). Article 1.051(c) provides: (c) An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation. Except as otherwise provided by this subsection, if an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county shall appoint counsel as soon as possible, but not later than the third working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel. In a county with a population of 250,000 or more, the court or the courts' designee shall appoint counsel as required by this subsection as soon as possible, but not later than the end of the first working day after the date on which the court or courts' designee receives the defendant's request for appointment of counsel. Tex. Code Crim. Proc. Ann. art. 1.051(c). The proceedings in this case took place in Bastrop County. In 2005, the United States Census Bureau listed the population of Bastrop County as 69,932. Following the guidelines set forth in article 1.051(c), the court or courts' designee was required to appoint counsel for appellant within three working days following receipt of appellant's request because the population of Bastrop County is less than 250,000. On Friday, May, 6, 2005, after appellant was arrested, he was taken before the magistrate where he filed an Affidavit of Indigency and requested appointment of counsel. On May 11, 2005, three working days later, the trial court appointed Howard Jenkins as appellant's counsel. Appellant's complaint is specifically that article 1.051(c) violates the Equal Protection Clause because it creates two separate and distinct classes of indigent citizens accused of crimes: (1) one class comprised of indigents arrested in counties with a population of more than 250,000, who are entitled to the appointment of counsel within one working day of being magistrated, and (2) a second class comprised of indigents arrested in a county with a population of less than 250,000, who are entitled to appointment of counsel within three working days. Appellant contends that the application of the above guidelines entitles those arrested in counties with populations over 250,000 to "the advice and assistance of counsel in a more efficient manner than if you are poor and happen to get arrested in a smaller county." At the heart of appellant's argument is his contention that there is no reason why an indigent accused, upon request, should not be entitled to the appointment of counsel at the time he is magistrated. Appellant's attempt to raise an equal protection clause violation on these grounds is without merit. Texas courts have repeatedly rejected the complaint that the failure to appoint an attorney prior to being magistrated, where probable cause and indigence are determined, is error. See Oliver v. State, 995 S.W.2d 878, 880 (Tex.App.-Houston [1st Dist.] 1999) (op. on remand); Switzer v. State, 809 S.W.2d 781, 783 (Tex.App.-Houston [14th Dist.] 1991, no pet.); Hernandez v. State, 808 S.W.2d 536, 539 (Tex.App.-Waco 1991, no pet.); Whittington v. State, 781 S.W.2d 338, 341 (Tex.App.-Houston [14th Dist.] 1989, pet. ref'd). Thus, we conclude that article 1.051 does not violate appellant's equal protection rights. Appellant's first issue is overruled. IV. Voluntariness of Confessional Statement
In his second issue, appellant contends that the trial court abused its discretion in admitting his May 5th statement during the punishment phase of trial because it was not voluntarily given due to his intoxication. According to appellant, his level of intoxication, due to heavy drinking and use of methamphetamine during the time leading up to the murder rendered his confession involuntary. Appellant originally challenged the admission of the complained-of statement in his pre-trial motion to suppress. However, he never obtained a ruling on the motion. First and foremost, we note that appellant is not challenging the voluntariness of his guilty plea. Instead, he is challenging the voluntariness of a statement given at the time of his arrest, which was introduced into evidence after his guilty plea and during the punishment phase of trial. Thus, because appellant entered an "open" plea of guilty and because he is not challenging the voluntariness of his plea, appellant waived the right to appeal this issue. See Young, 8 S.W.3d at 666-67; Perez, 129 S.W.3d at 288. Moreover, we note that in order for appellant to preserve his right to appeal any issue regarding his pre-trial motion to suppress, he was required to obtain a ruling. See Tex. R. App. 33.1; Garza v. State, 126 S.W.3d 79, 84 (Tex.Crim.App. 2004); Coleman v. State, 113 S.W.3d 496, 499 (Tex.App.-Houston [1st Dist.] 2003), aff'd, 145 S.W.3d 649 (Tex.Crim.App. 2004). As explained above, the record does not indicate that the trial court either expressly or impliedly ruled on appellant's motion to suppress. Accordingly, appellant waived any complaint on appeal that his conviction was not rendered independent of, and was supported by, any arguable error regarding admission of the evidence. See Tex. R. App. P. 33.1(a); see also Young, 8 S.W.3d at 667; Jordan, 112 S.W.3d at 347. Even if we were to conclude that, by overruling appellant's objection to the admission of the May 5th statement, the trial court essentially denied appellant's motion to suppress, we would nonetheless find that any error in the admission was harmless. Tex. R. App. P. 44.2(b). We would conclude that the error was harmless because the same testimony came in through appellant's May 11th videotaped statement. Further, although appellant objected to the admission of the May 11th videotaped statement, the objection was not on voluntariness grounds, and most importantly, appellant has not challenged the admission of the May 11th videotaped statement on appeal. See Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App. 1999) (an objection stating one legal theory may not be used to support a different legal theory on appeal); Camacho v. State, 864 S.W.2d 524, 533 (Tex.Crim.App. 1993) (same); see also Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998) (stating that a trial court's erroneous admission of evidence will not require reversal when other such evidence was received without objection, either before or after the complained-of ruling). Accordingly, appellant's second issue is overruled. V. Ineffective Assistance of Counsel
In his final issue, appellant argues that his defense counsel provided ineffective assistance by laboring under a conflict of interest. Specifically, appellant's complaint stems from the following comment made by defense counsel during closing argument, "I knew Brian [the murder victim]. I was fond of Brian. He was — he had a sense of humor. He had an exuberance of life that only comes from being young like that. He had a smile that would lift your heart." Appellant claims that through the above statement, his defense counsel "appears to be representing a conflicting interest by arguing that the deceased in this murder trial was a good and loving man that had a sense of humor and an exuberance of life." He suggests that the statement advances "other interests that are detrimental to appellant's case, the theory at the beginning of which appeared to be that a drug dealer had been killed." Appellant claims the argument could have had a "chilling effect" in making the jury want to sentence him to the maximum term allowed by law. Appellant admits that the record is inconclusive as to what defense counsel's motivation was in making the argument, but nonetheless claims "it cannot be said that this argument coincided with [his] interests at trial." Allegations of ineffective assistance of counsel may or may not have a direct nexus with a defendant's plea of guilty. Martinez, 109 S.W.3d at 803 (holding that right to appeal claim of ineffective assistance of counsel alleging that counsel failed to convey plea negotiations timely and adequately inform of consequences of pleading guilty to jury for sentencing waived, because plea of guilty to jury was independent of and not supported by alleged ineffective assistance of counsel claims). A judgment of guilt is rendered independently of the alleged error when the alleged grounds of ineffective assistance are not related to the plea of guilty. See id.; Jordan, 112 S.W.3d at 347 (holding that right to appeal claim of ineffective assistance of counsel alleging that counsel had disqualifying conflict of interest waived because record did not show appellant would have pleaded not guilty but for alleged conflict of interest). Here, appellant does not claim his counsel's alleged ineffectiveness had any bearing on his decision to plead guilty or that he would have pled not guilty but for the alleged conflict of interest. See Guidry v. State, 177 S.W.3d 90, 93-94 (Tex.App.-Houston [1st Dist.] 2005) (op. on remand) (citing Young, 8 S.W.3d at 667; Martinez, 109 S.W.3d at 803). Accordingly, we hold that appellant waived any right to appeal his complaint of ineffective assistance of counsel because the judgment of guilt was rendered independently of, and was not supported by, the alleged ineffectiveness of defense counsel. Appellant's third issue is overruled. VI. Conclusion
The judgment of the trial court is affirmed.