Opinion
No. 14-08-00771-CR
Opinion filed September 17, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 1175064.
Panel consists of Justices SEYMORE, BROWN, and SULLIVAN.
MEMORANDUM OPINION
A jury convicted appellant Matthew Freeman of aggravated robbery and sentenced him to eighteen years' incarceration in the Texas Department of Criminal Justice, Institutional Division. In a single issue, Freeman asserts that he was denied the effective assistance of counsel because his trial counsel waived appellate review of the trial court's ruling on his motion to suppress his video-recorded interview. We affirm.
A grand jury originally indicted appellant with felony murder in this case, but the State later dismissed that charge.
I
On the morning of November 6, 2007, seventy-nine-year-old Clay Chevalier was beaten and left beside the road when he went out for a walk in his Houston neighborhood. No one witnessed the assault, but two passers-by found Clay and called 911. Paramedics responded to the scene and transported him by ambulance to the hospital. Clay was incoherent and could provide no information about the assault, and he died from his injuries four days later. After his death, his family members contacted the Houston Police Department ("HPD") to report the crime. Sergeant Christopher Cegeilski in HPD's homicide division was assigned to investigate the case. Meanwhile, on November 11, Freeman, his step-brother, and Zkeus Carrington visited the Chevaliers' home and denied being involved in the crime. One of the Chevalier family members called the police; HPD officers arrived and subsequently transported Freeman and Zkeus to the police station. Sergeant Cegeilski interviewed Freeman at the police station. In the video-recorded interview, Freeman inculpated himself. Before trial, Freeman moved to suppress the interview, alleging that it stemmed from an illegal arrest. At the motion-to-suppress hearing held the day before Freeman's jury trial began, Clay's son, Reginald Chevalier, testified that he had heard rumors that Freeman had been involved in the crime against his father. According to Reginald, Freeman, his step-brother, and Zkeus came to his father's house on November 11 to "clear" their names. Reginald heard Zkeus and Freeman bickering about who had robbed his father. Stephon Chevalier, another of Clay's sons, also testified that he had heard rumors about Freeman's involvement in the crime. He explained that he had spoken with Ann Hogan, who told him Zkeus said he was there when Freeman hit and robbed Stephon's father. When Stephon heard from his sister Carolyn that Freeman and Zkeus had shown up at his father's house, he called the police. HPD officer L.D. Brooks testified that dispatch notified her that suspects were at a scene and wanted to talk to the police; she was dispatched to the Chevaliers' home. When she arrived, she saw Freeman and Zkeus, as well as several family members. She detained Freeman and Zkeus for "officer safety," searched their pockets and put them in her patrol car to await the arrival of a supervisor to speak with them. She explained that she was not arresting Freeman and Zkeus when she put them in the back of her patrol car, but was detaining them because they were murder suspects. She testified that she arrived at the scene alone and observed arguing and confusion between Freeman's family and the Chevaliers. According to Officer Brooks, she did not have a warrant to arrest Freeman, but Freeman said he wanted to talk to the police because he "didn't do it." She stated that Freeman went into the station house voluntarily, although he was in handcuffs and "detained." HPD officer Mario Clinton also testified at the hearing. Officer Clinton had been involved in the initial investigation into Clay's death. He explained that he recognized the Chevaliers' address when the dispatch call went out over the radio, and found Zkeus's and Freeman's presence at the victim's home to be "suspicious." He drove to the Chevalier home in response to the dispatch call; when he arrived, Freeman was "detained" in handcuffs in the back of Officer Brooks's patrol car. According to Officer Clinton, he then spoke to Zkeus's mother, Rhonda Carrington, who was also at the Chevalier home. She told him that Zkeus had informed her that he and Freeman were walking down the street when Freeman hit an "old man" who fell down. Zkeus told her that Freeman went through the old man's pockets after he fell. Officer Clinton testified that he reported this information to investigators in the HPD homicide division; a sergeant in the homicide division told him to place both Freeman and Zkeus on "investigative hold" and transport them to central jail. On cross-examination, Officer Clinton further stated that members of the Chevalier family had heard that Freeman was "bragging" about committing the crime. He additionally stated that officers spoke with Ann Hogan at the scene, who corroborated what Rhonda Carrington had told him earlier about Zkeus. Sergeant Cegeilski testified that as part of his investigation, he had spoken with several people who had heard about the crime. Freeman's name "kept coming up" in these conversations. Sergeant Cegeilski interviewed Tavarius Washington, who told him that Zkeus and Freeman had gone out the morning of the offense to collect money from someone named "Black." They asked Washington to go with them, but he declined. After Sergeant Cegeilski interviewed Washington, he and his partner were dispatched to another murder scene. While he was at the other scene, Cegeilski's supervisor called him and told him that Freeman and Zkeus were at the Chevaliers' home claiming that they were not involved in the crime. Sergeant Cegeilski explained that Ann Hogan had come into the station and given a sworn statement regarding Zkeus's and Freeman's involvement in the offense. When he was notified that officers had "detained" Freeman and Zkeus, he testified that he did not want to have them arrested at that point because he wanted to give them a chance to explain. He asked the officers at the scene to transport them to the station so he could interview them. Sergeant Cegeilski stated that Freeman was in police custody for about twelve hours before he interviewed him. After he interviewed Zkeus and Freeman, Sergeant Cegeilski arrested Freeman. Finally, Freeman testified at the motion-to-suppress hearing. He explained that he went to the Chevaliers' home to tell them he had not been involved in the beating and robbery of Clay. According to Freeman, he did not want to speak to police officers. He stated that Officer Brooks ordered him and Zkeus to lie down on the ground, then she handcuffed and searched them before putting them in the back of her patrol car. He testified that he believed he was under arrest at that point. After hearing the evidence, the trial court denied Freeman's motion to suppress. The trial court concluded that officers had probable cause to arrest Freeman before transporting him to the station. Specifically, the trial court determined that, at first, Freeman was simply being detained at the scene because the officers were considering releasing him. But the trial court concluded that before Freeman was transported to the station, the officers had probable cause to arrest him. Because the officers had probable cause to arrest Freeman, the court determined that his interview did not stem from an illegal arrest and was admissible. When the State later offered Freeman's recorded interview at trial, his trial counsel stated that he had "no objection" to its admission. In addition to numerous other witnesses who testified during the guilt-innocence phase of his trial, Freeman also took the stand. He admitted that he and Zkeus went out the morning that Clay was attacked to collect money that a "crackhead" owed Zkeus. Freeman claimed that he was afraid of Zkeus because Zkeus was a violent person. He testified that they were unable to collect the money from the person who owed it to Zkeus, so Zkeus was upset. Freeman stated that he suggested that they rob someone "to see what [Zkeus] was going to do," but he claimed he did not mean it. He also admitted that he pushed Clay from behind, with an open hand to his head. On cross-examination, Freeman testified that he hit Clay because he did not want Zkeus to think he was a "punk." He also stated that, after Clay had fallen to the ground, he told Zkeus to check his pockets to see if he had any money. The jury found Freeman guilty and sentenced him to eighteen years' incarceration in the Institutional Division of the Texas Department of Criminal Justice. The trial court entered the sentence in accord with the jury's verdict. No motion for new trial was filed, and this appeal timely followed.II
In a single issue, Freeman contends that his trial counsel rendered ineffective assistance because he waived any appellate challenge to the trial court's denial of his motion to suppress his confession.A
In reviewing claims of ineffective assistance of counsel, we apply a two-prong test. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish ineffective assistance, an appellant must prove by a preponderance of the evidence that (1) his trial counsel's representation fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 687. An accused is entitled to reasonably effective assistance of counsel. Id. at 686; King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). When evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). There is a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas, 163 S.W.3d at 740. To overcome the presumption of reasonable professional assistance, "[a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.3d at 814. When determining the validity of an ineffective-assistance claim, any judicial review must be highly deferential to trial counsel and avoid the distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (citing Strickland, 466 U.S. at 689). Moreover, when the record is silent as to trial counsel's strategy, we will not conclude that defense counsel's assistance was ineffective unless the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). If a criminal defendant can prove that trial counsel's performance was deficient, he must still affirmatively prove that counsel's actions prejudiced him. Thompson, 9 S.W.3d at 812. To demonstrate prejudice, a defendant must establish a reasonable probability that the result of the proceeding would have been different if trial counsel had acted professionally. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).B
Here, Freeman asserts that his trial counsel committed a professional error when he waived the motion to suppress by affirmatively stating "no objection" when his statement was offered at trial. See Brown v. State, 183 S.W.3d 728, 741 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd) (citing Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986) (en banc)) (explaining that affirmative assertion of "no objection" when evidence subject to pretrial motion to suppress is offered waives any error in the admission of the evidence despite the pretrial ruling). He argues that there "is no scenario under which the actions of counsel waiving a good motion to suppress an incriminating statement could be considered 'sound trial strategy.'" We disagree for several reasons. First, Freeman has not demonstrated that the trial court erred in denying his motion to suppress. Freeman focuses his argument on the impropriety of the "investigative detention" and argues that he was illegally arrested. As discussed supra, however, the trial court determined that, although Freeman was initially being detained at the Chevaliers' home, officers had probable cause to arrest him prior to transporting him to the station. An officer may make a warrantless arrest if he discovers a person in a suspicious place and under circumstances that reasonably show the individual has committed a felony. Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2008). "'Probable cause' for a warrantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense[,]" regardless of the subjective beliefs of the arresting officer. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (citing Beck v. Ohio, 379 U.S. 89, 91, 97 (1964)). At the time that Freeman was "arrested," i.e., when Officer Clinton transported him to the station, Zkeus's mother had informed Officer Clinton that Zkeus had admitted he was present when Freeman beat and robbed Clay. Further, Ann Hogan had corroborated the information that Zkeus's mother had passed along to Officer Clinton. As noted above, Officer Clinton also testified that he found the circumstances of Zkeus and Freeman going to the victim's house "suspicious," and that members of the Chevalier family had told him Freeman was heard "bragging" about committing the crime against Clay. Given this information, Officer Clinton had sufficient information from which he could have reasonably believed that Freeman had committed a felony. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1). Thus, Officer Clinton had probable cause to arrest Freeman when he transported him to the city jail. See Hinojosa v. State, 4 S.W.3d 240, 248 (Tex. Crim. App. 1999) (citing Franks v. Delaware, 438 U.S.154, 165 (1978) for the proposition that probable cause may be founded on hearsay). The trial court did not err in denying Freeman's motion to suppress; thus, failure to preserve the motion to suppress cannot support an ineffectiveness claim. Cf. Thacker v. State, 999 S.W.2d 56, 67 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd) ("Trial counsel is not ineffective for failure to make meritless objections."). Second, because the trial court denied his motion to suppress, Freeman's trial counsel could have chosen to refrain from objecting to the admission of his statement to avoid having jurors believe that Freeman was attempting to hide something from them. Indeed, Freeman's trial strategy was to admit being present when Clay was attacked, but to cast blame on Zkeus and emphasize that Freeman did not intend to commit theft. This strategy is apparent from the following portions of his trial counsel's opening argument:Well, Zkeus stopped to talk to Mr. Chevalier and [Freeman], knowing Mr. Chevalier, came over. And at that time Zkeus began motioning to [Freeman] and [Freeman], in the mind of an 18-year-old, felt the pressure not to look like a punk. So he pushed the older gentleman and at that point Zkeus Carrington, who was a very big person and a strong person, hit Mr. Chevalier on the side of the head and he ended up cracking or having a skull fracture from that blow.
. . .
And you're going to hear [his] statement. You're going to see that statement as a video confession and you'll see that he wasn't forthright at the beginning of the statement. He gave a story and it changed and it changed the whole time. He's going to testify and he's going to be able to clarify these things. . . . [H]e'll be able to discuss what he said on the video confession and after looking at that evidence and hearing the evidence, there will be no evidence that [Freeman] intended to steal or commit theft against Clay Chevalier.Although his trial counsel's strategy apparently did not work in Freeman's favor, we cannot say the challenged conduct was "'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d at 392. Finally, Freeman chose to testify at his trial. As discussed above, he admitted that (a) he suggested to Zkeus that they rob someone, (b) he hit Clay himself, and (c) he told Zkeues to check Clay's pockets to see if he had any money. In light of this inculpating testimony, we cannot say there is a reasonable probability that the result of the proceeding would have been different. Thompson, 9 S.W.3d at 814. Under these circumstances, we cannot say that Freeman's trial counsel was ineffective, and we overrule Freeman's first issue.