Opinion
No. 11-14-00077-CR
03-31-2016
WILLIE GRIFFIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 22nd District Court Hays County, Texas
Trial Court Cause No. CR-12-0348
MEMORANDUM OPINION
The jury convicted Willie Griffin on six separate counts, which included aggravated kidnapping, aggravated sexual assault (three counts), aggravated assault—serious bodily injury, and attempted murder. The jury found the enhancement allegations to be true and assessed punishment at life imprisonment and a fine of $10,000 for each count. The trial court struck the fines, which were not permitted because Appellant was sentenced as a habitual offender. The trial court then sentenced Appellant to life imprisonment for all six counts. The sentences are to run concurrently. Appellant presents four issues on appeal. We affirm.
TEX. PENAL CODE ANN. § 20.04 (West 2011).
Id. § 22.021 (West Supp. 2015).
Id. § 22.02.
Id. §§ 15.01, 19.02.
Id. § 12.42(d).
This case was transferred to this court from the Third Court of Appeals, and the precedent of that court binds us unless it would not bind that court. See TEX. R. APP. P. 41.3.
I. The Charged Offenses
Appellant's only challenge to the sufficiency of the evidence relates to the three counts of aggravated sexual assault. As charged in this case, a person commits the offense of aggravated sexual assault if (1) the person intentionally or knowingly causes the penetration of the sexual organ of another person by any means, without that person's consent; causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth of another person, including the actor, and (2) the person uses or exhibits a deadly weapon in the course of the offense. PENAL § 22.021(a)(1)(A), (a)(2)(A)(iv). Appellant pleaded not guilty to all six counts and proceeded to trial.
II. Evidence at Trial
Because Appellant only challenges the sufficiency of the evidence on the aggravated sexual assault convictions, we outline the evidence necessary to complete that review. We also outline the evidence pertinent to Appellant's evidentiary challenges.
The victim was seventeen years old at the time of the offenses. She testified that she lived at a children's shelter in east Austin. She was waiting for a bus at the bus stop when she accepted a ride from Appellant. Appellant drove a white vehicle, passed by the victim twice, stopped on the second pass, and offered to take her to her friend's house. Appellant did not take her to her friend's house but, instead, offered her marihuana. When she refused, he offered to pay her $20 for sex. She again refused, but Appellant then said, "You are going to give me this p---y. . . . Yes you are." He then pulled out his knife and threatened to "hurt" her if she tried to get out of the vehicle.
Appellant drove the victim to a remote, heavily wooded area in Hays County. Appellant made her get out of the vehicle and walk with him into the woods. There, he swore at her and demanded that she take off her clothes and perform oral sex on him. Appellant called her a "b---h" and said he was not "playing." Once the victim was naked, Appellant told her to put her mouth on his penis; she complied. Appellant then had her lie down on the ground, and he put his mouth on her vagina. He then penetrated her vagina with his penis and, a short time later, ejaculated into his hand. Appellant, while still naked himself, wiped off his hands and grabbed his knife.
The victim saw Appellant's tattoos as he said, "Good night." She begged him not to kill her, but he said that she knew what he looked like. She tried to run, but Appellant caught her and then choked her until she passed out. He dragged her to a creek bed, but when she woke up, he stabbed her twelve times and left her for dead. The victim "played dead," and Appellant left. Appellant was wearing blue jeans, a gray long-sleeved shirt, a white tank top, and blue sneakers. Unbeknownst to Appellant, the victim was not dead; she managed to stumble to a nearby road. People saw her on the road, called 9-1-1, and rendered aid. Emergency medical personnel arrived and took her to a hospital in Austin.
The victim testified that Appellant had tattoos on his belly, the inner side of his left arm, and the outside of his left leg. She explained that the tattoo on his stomach looked like "graffiti" words in the shape of a rainbow.
Erica Carpenter, the director of communications for the 9-1-1 division of the Hays County Sheriff's Office, testified that six recordings were made on March 15, 2012, of 9-1-1 calls from people about a crime victim who was naked, had been assaulted and stabbed, and had been found on the side of a road.
Appellant went to an H-E-B to get gas and then returned to the area, presumably to burn the victim. But police were in the area, so he left. Photographs taken by surveillance cameras at the H-E-B depicted Appellant and the white vehicle at the H-E-B where he purchased a gas can and gas. A dash camera from a police car recorded Appellant as he drove by the scene in a white vehicle shortly after the attack.
The State introduced evidence in the punishment phase that linked Appellant to an earlier murder of a young woman who had been sexually assaulted in a remote area of Hays County and whose body had been burned with lighter fluid. The lighter fluid bottle had Appellant's DNA on it, and the brand of lighter fluid was traced back to a Dollar General store and matched lighter fluid found in a residence that Appellant shared with a former girlfriend.
The victim spoke to police and gave a description of Appellant, from which a composite sketch was drawn. Appellant's former girlfriend, Celester Fowler, called police and gave information that the composite sketch resembled Appellant. The victim later identified Appellant in court.
The police learned that Glenn Palmer owned a white Mitsubishi Montero Sport that Appellant borrowed on occasion. Police were able to locate the vehicle. The vehicle had a fleur-de-lis, a New Orleans Saints symbol, that matched the symbol on the white vehicle driven by Appellant when the vehicle was recorded on the H-E-B and police cameras. Palmer confirmed that Appellant had borrowed his vehicle. Appellant borrowed the vehicle in the morning on the day of the crimes and later returned the vehicle to Palmer; Palmer noticed that there was a strong gasoline smell in the vehicle. After Appellant gave him the keys, Appellant walked home.
With a search warrant, law enforcement searched Fowler's residence and found a one-gallon, red gasoline can; they also noted a similar can in the surveillance recording from the H-E-B.
Mark Opiela was the detective assigned to the case by the Hays County Sheriff's Department, and he interviewed the victim twice at the hospital. Detective Opiela, along with Sergeant Sam Stock, learned that the suspect was an African-American male with specific tattoos; they learned that his name was Griffin. Both men traveled to Florida to interview a person who matched the suspect's description and had the same tattoos; the individual in Florida was identified as Appellant. Appellant had been arrested in Florida on a Texas "blue" warrant. In accordance with a search warrant, Detective Opiela and Sergeant Stock took DNA samples from Appellant and seized personal items from him, including a pair of blue Nike tennis shoes. They also photographed him and his tattoos.
Logan Leatherwood, an evidence technician with the Hays County Sheriff's Department, testified that she took photographs of the victim at the hospital. Carolyn Dale, a sexual assault nurse examiner and a flight nurse, examined the victim. Dale noted seventeen areas of trauma, including twelve puncture wounds, as well as scratches, abrasions, and lacerations. Dale testified that the victim reported being strangled and had symptoms of strangulation, which included being lightheaded, faint, and in pain; loss of consciousness and bodily functions; and difficulty speaking and breathing. Ernest Gonzalez, a trauma surgeon, treated the victim for multiple stab wounds; a pneumothorax, which is air in the chest cavity; blood in the pericardium and a hemothorax and hemopericardia around the heart, which can be life-threatening; and multiple lacerations.
Emma Becker, who has a bachelor's and master's degree in biology, is the DNA technical leader, section supervisor, and CODIS administrator for the Columbus Police Department Crime Laboratory in Columbus, Ohio. She testified that, when she was with the Texas Department of Public Safety Crime Laboratory in Austin, she completed the Y-STR profile testing of Appellant's DNA and the victim's vaginal swab. Becker testified that Appellant's DNA matched the partial Y-STR profile found in the victim's vaginal swab with 6 of 16 loci and two in 13,248 total individuals in the database.
III. Issues Presented
Appellant asserts four issues on appeal: (1) whether the evidence is sufficient with respect to aggravated sexual assault; (2) whether he invoked his right to remain silent during an interrogation; (3) whether the trial court erred when it admitted DNA evidence when the chain of custody was incomplete; and (4) whether the trial court erred when it admitted pen packets during the punishment phase.
IV. Analysis
A. Issue One: Sufficiency of the Evidence
We review the sufficiency of the evidence under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
The trier of fact is the sole judge of the weight and credibility of the evidence, and a reviewing court may not reevaluate the weight and credibility of the evidence so as to substitute its own judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). The reviewing court must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
Appellant asserts that the victim followed him into the woods, took off her own clothes, and voluntarily performed sex acts on him. He contends that the evidence fails to show lack of "consent." Appellant also argues that there was no "threat[] to use force or violence" because the victim did not know that Appellant had a knife when she was with him in the woods.
We must give deference to "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319. When we review the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)) (internal quotation marks omitted). "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. (citing Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993)).
Appellant gave the victim a ride from the bus stop and offered to pay her $20 for sex. She refused him, and he said, "You are going to give me this p---y. . . . Yes you are." He then pulled out his knife and threatened to "hurt" her if she tried to leave. The victim testified that, at that point, she knew she was in "trouble. . . . [R]eal trouble." She did what Appellant said because he had shown her the knife, which the evidence showed to be a deadly weapon, and had threatened to harm her, which he ultimately did anyway. Appellant (1) put his penis in her mouth, (2) put his mouth on her vagina, and (3) penetrated her vagina with his penis. He choked and stabbed her and thought that he had killed her. The jury is the arbiter of the facts, and we presume it resolved the facts in the State's favor. Clayton, 235 S.W.3d at 778; Dewberry, 4 S.W.3d at 740. We have reviewed the record, and we hold that there was sufficient evidence for a rational jury to have found beyond a reasonable doubt that Appellant committed three offenses of aggravated sexual assault against the victim. We overrule Appellant's first issue.
B. Issue Two: Admission of Interview
Appellant contends that the trial court erred when it refused to suppress State's Exhibit No. 2, a taped interview of Appellant. Appellant argues that the trial court should have suppressed the exhibit because officers continued to interview him after he unambiguously invoked his right to remain silent. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). The trial court's ruling will be upheld on appeal if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id.
"If the individual [in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). However, a police officer need not stop questioning a suspect unless the suspect unambiguously invokes his rights. Ramos, 245 S.W.3d at 418; Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). A police officer does not violate a suspect's right to remain silent when the officer attempts to clarify whether the suspect wishes to remain silent and the suspect thereafter chooses to continue to speak about the offense. Williams v. State, 257 S.W.3d 426, 432-33 (Tex. App.—Austin 2008, pet. ref'd). Courts consider the totality of the circumstances when determining whether a suspect unambiguously invoked his rights. Watson v. State, 762 S.W.2d 591, 597 (Tex. Crim. App. 1988). A suspect's statement is ambiguous when it is subject to more than one reasonable interpretation under the circumstances. Williams, 257 S.W.3d at 433-34.
After Appellant was read his Miranda rights, officers told him that he could go back to his cell if he did not want to continue the interview. The following exchange occurred:
[Appellant]: Are you guys saying I can go back to my cell now?
[Officer]: If that's something that, that you want—that you don't want to talk to us about.
[Appellant]: Talk to you about what? I don't know what y'all are talking about.
[Appellant signs Miranda acknowledgement]
[Officer]: Would you mind answering the questions that I have? Are you good with that?
[Appellant]: I mean, I have the right to remain silent, and I don't know what all this is about. . . . I don't have an attorney present . . . .
[Officers explain context of the interview]
[Appellant]: All right, what questions do y'all want to ask me then? I'll stop it if I don't like the questions or something.
The officers did not violate Appellant's rights when they answered his question regarding his ability to return to his cell. Considering the totality of the circumstances, his question on whether he was permitted to return to his cell did not unambiguously invoke his rights. See id. Consequently, the officers were permitted to ask clarifying questions or, in this case, clarify their earlier statement. See id. at 432-33. Appellant's decision to continue the interview after the officers' clarification did not violate his rights. See id.; Ramos, 245 S.W.3d at 418; see also Garcia v. State, No. 13-10-00643-CR, 2013 WL 1092421, at *9 (Tex. App.—Corpus Christi Mar. 14, 2013, pet. ref'd) (mem. op., not designated for publication). Furthermore, Appellant's statement that he had the right to remain silent was a mere observation accompanied by repeated questions about the context of the interview. When we consider the totality of the circumstances, including Appellant's repeated questions and statements that he did not know what the officers wanted to talk about, we conclude that Appellant did not unambiguously invoke his rights. See Juarez v. State, No. 05-12-00125-CR, 2013 WL 3957008, at *5 (Tex. App.—Dallas July 31, 2013, pet. ref'd) (not designated for publication) (holding that a suspect did not unambiguously invoke his right to remain silent when, in the same chain of questioning, he stated that he did not want to talk to officers but also repeatedly asked officers for the context of the interview).
Later, Appellant indicated a desire to return to his cell when he said, "Look man, ya'll take me back to the cell. I really hate when people call me a liar." However, in the same sentence, without any pause or break, Appellant continued to answer the officers' questions. Appellant then continued to participate in the interview. He did not reassert his desire to leave or indicate in any way that he was invoking his rights. Looking at the totality of the circumstances, Appellant's statement that he wanted to be taken to his cell articulated in the same breath as his continued participation in the interview was an ambiguous assertion of his rights. See Williams, 257 S.W.3d at 433-34; cf. Mayes v. State, 8 S.W.3d 354, 359 (Tex. App.—Amarillo 1999, no pet.) (holding that a suspect did unambiguously invoke her right to remain silent, but specifically noting that she did not "proceed into another diatribe immediately after [invoking her rights]"). Based on the totality of the circumstances, we cannot conclude that Appellant unambiguously invoked his right to remain silent. See Ramos, 245 S.W.3d at 418; Watson, 762 S.W.2d at 597; Juarez, 2013 WL 3957008, at *5; Williams, 257 S.W.3d at 432-34. Under such circumstances, officers were not required to stop the interview. See Ramos, 245 S.W.3d at 418. We hold that the trial court did not abuse its discretion when it admitted State's Exhibit No. 2. We overrule Appellant's second issue.
While not raised in Appellant's brief, he did state that he "want[ed] to go back to the house [and] lay down." This is not sufficient to unambiguously invoke his rights. See Dowthitt, 931 S.W.2d at 257; Franks v. State, 90 S.W.3d 771, 787 (Tex. App.—Fort Worth 2002, no pet.). Further, when officers stated that they had more questions, Appellant unequivocally agreed to continue the interview if the questions "seem alright." Once again, Appellant's choice to continue the interview did not violate his rights. See Williams, 257 S.W.3d at 432-33. --------
C. Issue Three: Admission of DNA Evidence
Appellant argues that the trial court abused its discretion in admitting State's Exhibit No. 77, which contained DNA evidence of both Appellant and the victim, because the State did not "properly" establish the chain of custody of the evidence. The State argues that Appellant waived the chain of custody issue because he failed to make a timely objection to the trial court. We review the admission or exclusion of evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id. Without evidence of tampering, most questions concerning care and custody of a substance go to the weight, not the admissibility, of the evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997) (citing Alvarez v. State, 857 S.W.2d 143, 147 (Tex. App.—Corpus Christi 1993, pet. ref'd)).
Generally, "[a]s a prerequisite to presenting a complaint for appellate review," an appellant must make a timely request, objection, or motion at the trial court level. TEX. R. APP. P. 33.1; Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002). The record must reflect that the complaining party stated the grounds for the ruling sought from the trial court "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). The purpose of this requirement is to give the trial court and the State an opportunity to correct a mistake early in the proceeding. Hull, 67 S.W.3d at 217. "Error preservation does not involve a hyper-technical or formalistic use of words or phrases;" it merely requires that a movant make the trial court aware of the nature of the complaint. Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). Furthermore, the issue on appeal must comport with the objection made at trial. Clark, 365 S.W.3d at 339 (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986)). Finally, an appellate court should not address the merits of an issue that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010).
Appellant's trial counsel stated the following after the State moved to admit into evidence State's Exhibit No. 77: "Your Honor, we have no further objections other -- other than those previously made to the Court about the substances collected." The trial court then admitted the exhibit into evidence. It is not clear exactly what Appellant's trial counsel meant when he referenced "the substances collected." The closest objection regarding "the substances collected" that we find from the record came from the previous day's testimony. There, defense counsel made a series of objections in an attempt to keep out evidence that was seized under a search warrant that, according to Appellant, lacked probable cause. Defense counsel later said, "Once again, Your Honor, just for the record, we adhere to the objections previously made to these seizures." The DNA sample that was part of State's Exhibit No. 77 was retrieved in accordance with a search warrant. But there was no objection related to any chain of custody issue during the discussion about the search warrant.
Even if we view Appellant's objection on "the substances collected" in the broadest scope, we cannot conclude that Appellant made the trial court or the State aware of a chain-of-custody objection with respect to State's Exhibit No. 77. Therefore, Appellant's argument on appeal does not comport with his objection in the trial court, and he has failed to preserve the issue for our review. See Clark, 365 S.W.3d at 339 (citing Thomas, 723 S.W.2d at 700); see also Wilson, 311 S.W.3d at 473. We overrule Appellant's third issue.
D. Issue Four: Admission of Pen Packets
Appellant argues that the trial court abused its discretion when it admitted the pen packets that allegedly pertained to him. Appellant argues that it was error to admit the pen packets without the fingerprint evidence from expert testimony that would corroborate Appellant's identity to the pen packets.
The State may use a fingerprint expert to match the fingerprints from the defendant to the pen packets, which may be the preferred method, but it is not the only method of proving prior convictions. Beck v. State, 719 S.W.2d 205, 209 (Tex. Crim. App. 1986). Other acceptable methods include testimony of a witness who personally knows the defendant and the fact of his prior conviction and identifies him, stipulations or judicial admissions of a defendant, or the comparison of photographs contained in a pen packet. Id.; Littles v. State, 726 S.W.2d 26, 31-32 (Tex. Crim. App. 1987) (op. on reh'g). There is no exclusive method for proving identity for prior convictions for enhancement. Littles, 726 S.W.2d at 32. And because there is no exclusive means of proving identity with respect to prior convictions, even unorthodox proof of identity will support an enhancement of the offense if such proof is sufficient to prove identity. Id.
In this case, there was some confusion about a conviction of another man, born in 1959, with the name Willie Griffin. However, the pen packet containing that conviction was redacted when the error was discovered, and no reference to that conviction was before the jury. Defense counsel indicated that Appellant was born in 1965, and one of the pen packets had the same birth year for Appellant. And there was extensive discussion by defense counsel to keep out the bad acts committed by Appellant while he was in prison, which were referred to in the pen packets and about which defense counsel said, "They're [the bad acts in pen packets] about my client."
Each of the pen packets admitted into evidence also contained photographs of Appellant, and the identification of the photographs contained in those pen packets constituted sufficient evidence to prove Appellant's identity as the person convicted in those cases. See Littles, 726 S.W.2d at 31; Williams v. State, 89 S.W.3d 325, 329 (Tex. App.—Texarkana 2002, pet. ref'd); see also Meek v. State, No. 03-05-00269-CR, 2006 WL 2080644, at *2 (Tex. App.—Austin July 28, 2006, no pet.) (mem. op., not designated for publication); Green v. State, 140 S.W.3d 776, 777 (Tex. App.—Eastland 2004, no pet.). We hold that the trial court did not abuse its discretion when it admitted the pen packets during the punishment phase of trial. We overrule Appellant's fourth and final issue.
V. This Court's Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE March 31, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.