Opinion
NO. 01-19-00620-CR
08-25-2020
MICHAEL WAYNE KIE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas
Trial Court Case No. 18CR1661
MEMORANDUM OPINION
A jury convicted appellant, Michael Wayne Kie, of the first-degree offense of aggravated robbery and, after finding the allegations in an enhancement paragraph true, assessed his punishment at thirty-five years' confinement and imposed a $5,000 fine. In two issues, appellant contends that (1) the trial court violated the Confrontation Clause of the Sixth Amendment when it admitted testimony from a police officer relying on statements from alleged co-conspirators; and (2) the State did not present sufficient evidence to corroborate accomplice witness testimony, as required by Code of Criminal Procedure article 38.14.
We affirm.
Background
In the early morning hours of May 27, 2018, a robbery occurred at the "Jokers Wild" or "Jokers Gone Wild" game room in Hitchcock, Texas. Jokers Wild was open twenty-four hours per day, and it had a variety of gambling machines. The gambling machines were all located in one large room, and there was a smaller, enclosed room where the employees kept a safe and money. The door to this room was kept closed but not locked because employees frequently walked in and out of the room. Jacobo Hernandez worked as a security guard at the game room. He was responsible for watching the front door, checking the membership of patrons, and monitoring the cameras placed throughout the business. Hernandez carried a loaded firearm as part of his duties.
Around 3:30 a.m., someone rang the bell for the front door, and Hernandez walked to the door to check the person's membership. When he opened the door, a man walked in and pointed a gun at Hernandez. This man told Hernandez not to move or else he would start shooting. Hernandez called to one of the game room's employees, a young woman named Robin, and told her to call the police. Robin ran into the room with the safe and called 911. While Robin called the police, Hernandez tried to confiscate the robber's gun and pull his own weapon, but the man called for another man to grab Hernandez's gun. The second man succeeded in taking Hernandez's gun, and both men were now armed. These two men were later identified as Caleb Reed and Joel Jackson, but no testimony reflected which actions were taken by Reed and which were taken by Jackson.
The second man yelled at everyone in the game room to raise their hands. The men then walked Hernandez around the game room, holding the guns behind him and making sure none of the patrons called the police. After Hernandez expressed that he was about to pass out, the men allowed him to sit and told him not to move. The men then went into the room where Robin had been hiding and took the money that she had been carrying in her apron as well as money from the safe. They also asked Robin and Hernandez for the keys to the gambling machines so they could take the money that was inside of each machine. Robin was unable to open the machines with her key, and the men were also not able to do so.
Eventually, Robin was able to leave the game room through the front door and run. The men, upon realizing that they would not be able to open up the gambling machines, tried to leave through the front door as well, but, by this point, the police had arrived and were outside. The men then tried to break through the roof of the game room, as well as through a large fan mounted in the wall. The men ordered Hernandez to yell to the police officers to leave, or else they would start shooting everyone inside. The men also tried to persuade Hernandez to go outside and start his car, which was parked right next to the front door. Hernandez gave them his car keys, but the men started arguing over who would start the car. While they were distracted, Hernandez ran outside. He told the police officers how many people were inside and gave a physical description of the robbers.
Hernandez was acquainted with appellant, whom he knew by name and also by his nickname, Big Mike. Appellant visited the game room nearly every night to gamble. Appellant was considered a "VIP player" at the game room, which allowed him to use a special set of gambling machines located next to where Hernandez sat. Before the day of the robbery, appellant would only play the VIP machines, but on the day of the robbery, he sat in the middle of the game room and used the "regular" machines. Hernandez had never known appellant to do that before.
The trial court admitted surveillance footage from inside the game room. On this footage, appellant can be seen playing the VIP machines and then moving to the "regular" machines in the middle of the room when the robbery started. Hernandez noticed that the robbers, when they passed by appellant, would lean in and speak with very low voices to appellant, but Hernandez was not able to hear what was said. Hernandez testified that everyone in the game room was scared, but appellant was calm. After Hernandez left the game room and ran outside, appellant was still inside the building. Hernandez saw appellant walk outside with his hands up to head towards his car, but the police officers arrested appellant.
On cross-examination, Hernandez agreed with defense counsel that, on the surveillance footage, appellant "jumped up and looked surprised" when the robbers entered the game room, that he tried to hide, that the robbers pointed a gun at him, and that he "genuinely looked nervous." Hernandez also agreed that the surveillance footage showed the robbers pointing a gun at appellant but ignoring another patron, and the footage also showed the robbers leading appellant outside while this other patron stayed behind.
Benjamin Alva was a patron at Jokers Wild on the night of the robbery. He arrived around 1:00 a.m. and played a game "against the back side wall" of the room. Alva heard "yelling and screaming," and when he turned around from the game, he saw two men, one of whom was holding Hernandez at gunpoint. This man walked toward Alva, pointed the gun at him, and demanded that Alva hand over his wallet and cell phone. The men told the patrons to turn around and face the gaming machines and not look at them. Alva testified that the men "got greedy" by trying to open up the gambling machines and by the time the men determined that they were unable to open the machines, the police had arrived. The men tried to leave through the front door, the back door, and the roof, and they informed the officers that hostages were inside. The men argued about who would drive away from the scene, and one of them tried to order Alva to drive Hernandez's car. Alva went outside to the car, noticed the police officers, and ran behind one of the police vehicles.
While he was outside, Alva saw appellant come out of the game room. Alva testified that appellant was called "Big Mike" and that he had seen appellant at the game room before. Appellant had been playing on the machine behind Alva at the time the robbery started. During the robbery, Alva did not notice appellant do anything suspicious, and he did not appear to be affiliated with the robbers. When the robbers first came into the room, appellant told everyone to be calm and did not seem nervous. After the robbery, Alva spoke with the other people who were present in the game room, and he got the impression that the other people found appellant's behavior to be suspicious. Alva did not see the robbers point a gun at appellant.
Galveston County Sheriff's Office Lieutenant K. Freeman was a detective at the time of the robbery. Freeman responded to the scene, but his primary role in the investigation was to assist in conducting interviews. Freeman was present for the interviews of Alva, Reed, Jackson, and appellant. Freeman did not testify to any statements made by either Reed or Jackson during their respective interviews. Freeman testified that the interview with appellant occurred last, and, at the time of the interview, Freeman believed appellant to be a potential suspect. The trial court admitted, without objection, a recording of appellant's custodial interrogation. Defense counsel did not object to any of Freeman's testimony.
On cross-examination, defense counsel questioned Lieutenant Freeman about the surveillance footage from inside the game room. Freeman agreed that, on the footage, the robbers pointed a gun at appellant and that there were times that appellant was "ducking down" or hiding behind the gambling machines, but Freeman testified that he believed that these actions were all staged.
During the interview, appellant stated that he and several other people were present at the game room, but he initially denied any involvement in the robbery. He also denied that he had a nephew named Joel. He later stated that he knew one of the robbers, who wanted assistance in being admitted to the game room. Appellant stated that he gave the men directions to the game room, told them he would vouch for them so they could be admitted, and told them that the game room had a lot of money. He denied that he knew of plans to rob the game room. Appellant later stated that he told the men that he did not want anyone in the game room to be hurt. Eventually, he admitted that he knew that the men planned to commit a robbery at the game room. He stated that, prior to the robbery, he never saw the men with a firearm. He also later admitted that he is related, albeit not by blood, to Joel Jackson, but he did not know Jackson by that name.
The jury charge instructed the jury on the law of parties. The jury found appellant guilty of the offense of aggravated robbery. After finding the allegations in an enhancement paragraph true, the jury assessed appellant's punishment at thirty-five years' confinement and imposed a $5,000 fine.
Confrontation Clause
In his first issue, appellant argues that Lieutenant Freeman's testimony that he relied on statements of Reed and Jackson that implicated appellant violated the Confrontation Clause of the Sixth Amendment.
The Confrontation Clause provides that, in all criminal prosecutions, the accused shall have the right "to be confronted with the witnesses against him." U.S. CONST. amend. VI. The purpose of the Confrontation Clause is
to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.Woodall v. State, 336 S.W.3d 634, 641-42 (Tex. Crim. App. 2011) (quoting Mattox v. United States, 156 U.S. 242-43 (1895)). The Confrontation Clause thus prohibits admission of out-of-court statements that are testimonial in nature unless the prosecution can demonstrate that the out-of-court declarant is presently unavailable to testify and the defendant has had a prior opportunity to cross-examine the declarant. See Crawford v. Washington, 541 U.S. 36, 59 (2004). "Testimonial" statements include, among other things, ex parte in-court testimony or its functional equivalent, such as affidavits, custodial examinations, prior testimony that the accused was not able to cross-examine, and similar pretrial statements the declarant would "reasonably expect to be used prosecutorially." Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010) (citing Wall v. State, 184 S.W.3d 730, 735-36 (Tex. Crim. App. 2006)); De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008) ("Generally speaking, a hearsay statement is 'testimonial' when the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution.").
Generally, to preserve error for appellate review, the complaining party must make a timely request, objection, or motion that states the ground for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds are apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A). Failure to object at trial may waive even constitutional errors. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Linney v. State, 401 S.W.3d 764, 772-73 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). To preserve the denial of a confrontation right for appellate review, the defendant must specifically object based on the Confrontation Clause at trial. Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004); Linney, 401 S.W.3d at 774; Acevedo v. State, 255 S.W.3d 162, 173 (Tex. App.—San Antonio 2008, pet. ref'd); see also Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) ("When a defendant's objection encompasses complaints under both the Texas Rules of Evidence and the Confrontation Clause, the objection is not sufficiently specific to preserve error."); Craven v. State, 579 S.W.3d 784, 787 (Tex. App.—Houston [14th Dist.] 2019, no pet.) ("To preserve error on Confrontation-Clause grounds, the objector must voice the complaint as soon as the basis for the objection becomes apparent.").
On appeal, appellant argues that his rights under the Confrontation Clause were violated when Lieutenant Freeman testified that he relied upon statements made by Reed and Jackson that implicated appellant, but Reed and Jackson did not testify at trial. Freeman testified that he was present during the interviews of Alva, Reed, Jackson, and appellant and that he had interviewed Reed and Jackson before interviewing appellant. Freeman stated that he went into the interview with appellant believing that he was a potential suspect. Freeman did not testify to any statements made by either Reed or Jackson during their respective custodial interrogations. Trial counsel did not object at any point during Freeman's testimony, and counsel never objected on the basis of the Confrontation Clause. We therefore conclude that because counsel did not object to Freeman's testimony on the basis of the Confrontation Clause, appellant has failed to preserve this complaint for appellate review. See Paredes, 129 S.W.3d at 536; Craven, 579 S.W.3d at 787; Linney, 401 S.W.3d at 774; Acevedo, 255 S.W.3d at 173.
We overrule appellant's first issue.
Corroboration of Accomplice Witness Testimony
In his second issue, appellant contends that the State failed to present evidence, as required by Code of Criminal Procedure article 38.14, to corroborate the accomplice witness statements of Reed and Jackson made to Freeman.
An accomplice is a person who participates with a defendant in the charged offense before, during, or after its commission with the requisite mental state. Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011). Code of Criminal Procedure article 38.14 provides that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed" and that "the corroboration is not sufficient if it merely shows the commission of the offense." TEX. CODE CRIM. PROC. ANN. Art. 38.14; see Smith, 332 S.W.3d at 439 (stating that Legislature has determined that "factfinder should exercise caution when considering the testimony of an accomplice" because "accomplices often have incentive to lie, such as to avoid punishment or shift blame to another person"). If the State's witness is an accomplice, the trial court is under a duty to instruct the jury on the rule in article 38.14. Nguyen v. State, 177 S.W.3d 659, 669 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd); see Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006) (stating that purpose of giving accomplice-witness instruction in jury charge is to remind jury "that it cannot use the accomplice's testimony to convict the defendant unless there also exists some non-accomplice testimony tying the defendant to the offense").
The Court of Criminal Appeals has held that the kind of "testimony" referred to in article 38.14 is "the kind adduced in open court by live witnesses under oath." Bingham v. State, 913 S.W.2d 208, 210 (Tex. Crim. App. 1995) (op. on reh'g). The court stated:
It is only when the accomplice takes the witness stand that the "supposed promise or expectation of conditional clemency" that justified the rule becomes apparent. The danger that an accomplice may "fabricate" in any other context than in open court is simply not great enough to invoke application of the rule, because the self-interest is not so manifest.Id. at 211. Thus, if an accomplice does not testify and only that person's out-of-court statement is admitted into evidence, the trial court is not required to give the jury an instruction under article 38.14 that the accomplice's out-of-court statement must be corroborated before the jury can rely on it for conviction. Id. at 213. "Only in-court accomplice testimony is subject to the article 38.14 requirement of corroboration." Maynard v. State, 166 S.W.3d 403, 410 (Tex. App.—Austin 2005, pet. ref'd); see also Nguyen, 177 S.W.3d at 669 ("The accomplice statute [article 38.14] does not apply to out-of-court statements."); Hammond v. State, 942 S.W.2d 703, 707 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (stating that testimony of witnesses concerning accomplice's out-of-court statements and actions was not required to be corroborated as accomplice testimony under article 38.14).
Here, the only witnesses at appellant's trial were Alva, Hernandez, and Lieutenant Freeman. Appellant does not contend that any of these three witnesses was an accomplice. Appellant does argue that Reed and Jackson were accomplices, but neither of them testified at appellant's trial. And the State did not offer any out-of-court statements by Reed or Jackson other than what Alva and Hernandez testified to concerning what the men said during the robbery. Reed and Jackson, therefore, did not offer any in-court accomplice witness testimony subject to the corroboration requirement in article 38.14. See Bingham, 913 S.W.2d at 210; Nguyen, 177 S.W.3d at 669; Maynard, 166 S.W.3d at 410. We therefore conclude that the article 38.14 corroboration requirement does not apply to this case because the State presented no in-court accomplice witness testimony. See Nguyen, 177 S.W.3d at 669 (concluding that accomplice witness rule of article 38.14 did not apply to three individuals defendant alleged were accomplices because these individuals did not testify at trial).
We overrule appellant's second issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Kelly, and Landau. Do not publish. TEX. R. APP. P. 47.2(b).