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affirming an aggravated robbery conviction despite lack of direct evidence and lack of a link between the defendant and the stolen property
Summary of this case from Carroll v. StateOpinion
No. 10-04-00141-CR
Opinion delivered and filed April 26, 2006. DO NOT PUBLISH.
Appeal fromthe 361st District Court, Brazos County, Texas, Trial Court No. 03-02204-Crf-361. Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
McAfee appeals his conviction for aggravated robbery. See TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2003). We affirm. Sufficiency of the Evidence. In McAfee's first issue, he contends that the evidence of his identity was legally insufficient. "When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." Sorto v. State, 173 S.W.3d 469, 472 (Tex.Crim.App. 2005); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilhoit v. State, 638 S.W.2d 489, 494 (Tex.Crim.App. 1982); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App. [Panel Op.] 1981). "[T]he standard of review on appeal is the same for both direct and circumstantial evidence cases." Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004). "[T]he lack of direct evidence is not dispositive of the issue of a defendant's guilt. Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor." Id. "The sufficiency of the evidence to sustain [the] appellant's conviction is determined by evaluating the probative weight of all the evidence that the trial judge permitted the jury to consider, including erroneously admitted evidence." Knox v. State, 934 S.W.2d 678, 686 (Tex.Crim.App. 1996); accord Gardner v. State, 699 S.W.2d 831, 835 (Tex.Crim.App. 1985). McAfee points to the absence of direct evidence. For example, investigators did not find McAfee's fingerprints at the scene of the robbery, eyewitnesses did not identify McAfee, hair in a mask and gloves used in the robbery did not match McAfee's, and McAfee was not in possession of property stolen in the robbery. The State points primarily to the following evidence. McAfee was acquainted with his accomplices, including one of them from work. The robbers used rubber gloves from their common employer, and the gloves were found in the getaway car and near McAfee's residence. The getaway car, found abandoned near McAfee's residence, had McAfee's fingerprints on it, and contained currency stolen in the robbery and a pistol, with McAfee's DNA on it, used in the robbery. Viewing the evidence in the light most favorable to the verdict of guilt, we hold that a rational trier of fact could have found beyond a reasonable doubt that McAfee committed the offense as charged. We overrule McAfee's first issue. Motion to Suppress Evidence. In McAfee's second and third issues, he complains of the trial court's overruling McAfee's motion to suppress evidence. "Generally, a trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard." Dyar v. State, 125 S.W.3d 460, 462 (Tex.Crim.App. 2003); see State v. Mechler, 153 S.W.3d 435, 438 (Tex.Crim.App. 2005). "An appellate court reviewing a trial court's ruling on a motion to suppress must view the evidence in the light most favorable to the trial court's ruling." Armendariz v. State, 123 S.W.3d 401, 402 n. 1 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 974 (2004); accord Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000); see State v. Gray, 158 S.W.3d 465, 469 (Tex.Crim.App. 2005). "In reviewing a trial court's ruling on a motion to suppress, the appellate court should afford almost total deference to the trial court's determination of the historical facts, especially when that determination involves an evaluation of the credibility and demeanor of witnesses." Masterson v. State, 155 S.W.3d 167, 170 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 1330 (2006); accord Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Statement. In McAfee's second issue, he contends that the trial court erred in overruling McAfee's motion to suppress evidence of McAfee's recorded oral statement. McAfee argues, "Upon being asked by [Bryan Police Department Detective Angel] Martinez whether he was willing to waive his rights, appellant responded on three separate occasions: `No, sir,' `Nope,' and `No man ain't.'" (McAfee Br. at 17 [(quoting State's Ex. D3, at 4)].) "No person shall . . . be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V; see also id. amend. XIV; TEX. CONST. art. I, § 10. "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Fare v. Michael C., 442 U.S. 707, 717 (1979) (quoting Miranda v. Arizona, 384 U.S. 436, 473-74 (1966)); see Chapman v. State, 115 S.W.3d 1, 5 (Tex.Crim.App. 2003). Yet the Fifth Amendment does not "require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to" the privilege. Davis v. United States, 512 U.S. 452, 459 (1994); see Lemmons v. State, 75 S.W.3d 513, 519-20 (Tex.App.-San Antonio 2002, pet. ref'd). McAfee points to the following part of the interview of McAfee by Detective Martinez:
MARTINEZ: OKAY, BEFORE WE GET ANY FURTHER, UNDERSTAND THAT YOU DON'T HAVE TO TALK TO US ABOUT ANYTHING HERE. (INHALES DEEPLY) WHAT I DO, BEFORE I GET INTO WHAT WE'RE HERE FOR, I'M GONNA GO AHEAD AND READ YOUR RIGHTS, OKAY? (PAUSE) (RUSTLING NOISES) YOU A CARD WITH `YA LANCE?
MATHEWS: UM-HUM.
MARTINEZ: LEMME, LEMME SEE IT (CHAIR SQUEAKING) I WANNA GO OVER IT (UNCLEAR) WITH `YA. (SHUFFLING NOISES, ZIPPING SOUND) (PAUSE) (SOMEONE SNIFFLES) IF YOU CAN'T HEAR ME OR YOU DON'T UNDERSTAND WHAT I'M SAYIN' LEMME KNOW, OKAY? (SHUFFLING NOISE) YOU HAVE THE RIGHT TO REMAIN SILENT NOT MAKE ANY STATEMENT AT ALL. AND ANY STATEMENT YOU MAKE MAY BE USED AS EVIDENCE AGAINST YOU AT YOUR TRIAL. ANY STATEMENT YOU MAKE MAY BE USED AS EVIDENCE AGAINST YOU IN COURT. YOU HAVE THE RIGHT TO HAVE A LAWYER PRESENT TO ADVISE YOU PRIOR TO OR DURIN' ANY QUESTIONIN'. IF YOU'RE UNABLE TO HIRE A LAWYER, YOU HAVE TO HAVE A LAWYER APPOINTED TO ADVISE YOU BEFORE AND DURIN' ANY QUESTIONING. YOU HAVE THE RIGHT TO TERMINATE OR STOP THIS INTERVIEW AT ANYTIME. YOU UNDERSTAND THE RIGHTS I'VE JUST READ TO YOU?
McAFEE, REGINALD: YES.
MARTINEZ: AT THIS TIME, DO YOU KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVE OR GIVE UP THESE RIGHTS? WHAT I WANNA TALK TO YOU ABOUT (TAPPING NOISE) POINT-BLANK IS A ROBBERY. OKAY? UM, UNDERSTAND LIKE I SAID, IT'S UP TO YOU. WE'VE GOT INFORMATION, YOU'RE HERE BASICALLY BECAUSE YOU HAVE A WARRANT FOR YOUR ARREST FOR AGGRAVATED ROBBERY OF THE UH, WESTERN UNION.
McAFEE, REGINALD: NO SIR.
MARTINEZ: OKAY.
McAFEE, REGINALD: WHATEVER. (RUSTLING NOISE) NOPE.
MARTINEZ: WELL I, I (SIGHS) IF IT'S ALRIGHT WITH YOU, IF YOU'RE WILLIN' TO TALK TO ME, I WANNA JUST ASK SOME QUESTIONS (CLATTERING NOISES) ABOUT THE CIRCUMSTANCES. . . .
McAFEE, REGINALD: (SHUFFLING NOISES) NO MAN AIN'T. . . .
MARTINEZ:. . . . WITH THE WESTERN. . . .
McAFEE, REGINALD:. . . . I CAN'T TELL `YA NOTHIN' ABOUT `DAT. (CHAIR SQUEAKING)[sic] (State's Ex. D3, at 4-5 (ellipses in orig.).) McAfee contends that officers should have ceased the interrogation when he said, "No sir." The State points primarily to the following:
MARTINEZ: YOU DON'T WANNA TALK TO US THOUGH, RIGHT? IT THAT A YES OR NO? I NEED, I MEAN I JUST NEED TO KNOW.
McAFEE, REGINALD: I'M JUS' TELLIN' YOU WHAT I'M TELLIN' Y'ALL (CHAIR SQUEAKING) HEY, HEY THIS LIKE THIS ROBBERY SHIT? I, I AIN'T, I CAN'T. . . .
MARTINEZ: I, I AIN'T GONNA LET `YA SIT THERE (UNCLEAR) I'M SAYIN', DO YOU WANNA TALK ABOUT THIS? I JUST NEED TO KNOW BEFORE I, I ASK `YA ANYMORE QUESTIONS. `CAUSE I'VE GOT A LOTTA QUESTIONS I NEED TO ASK YOU. IS THAT ALRIGHT WIT' YOU?
McAFEE, REGINALD: BUT WHAT I'M TRYIN' TO GET YOU TO UNDERSTAND, (SIGHS) IF IT'S SOMETHIN' TO DO WIT' THAT I, HEY I, I DON'T SHIT ABOUT THAT. ONLY THING. . . .
MARTINEZ: I, I. . . .
McAFFEE, REGINALD: . . . I KNOW IS WHAT I SEE IN THE PAPER.
MARTINEZ: WHAT I'M ASKIN' YOU, IN REFERENCE TO YOUR RIGHTS, IT'S REAL SIMPLE. ARE YOU WILLIN' TO TALK TO US? I'M NOT SAYIN' YOU WILLIN' TO CONFESS. ARE YOU WILLIN' TO TALK TO US ABOUT THIS?
McAFEE, REGINALD: ABOUT WHAT?
MARTINEZ: ABOUT WHAT I'M GONNA ASK YOU ABOUT, ABOUT THE CIRCUMSTANCES THAT WE HAVE SURROUNDIN' THIS WARRANT. (PAUSE)
McAFEE, REGINALD: WHAT IS IT ABOUT?
MARTINEZ: IT'S AGGRAVATED ROBBERY AT WESTERN UNION.
McAFEE, REGINALD: I DON'T KNOW NOTHIN' `BOUT THAT.
MARTINEZ: OKAY YOU, YOU'RE MISSIN' MY POINT. IT'S REAL SIMPLE.
McAFEE, REGINALD: IF I SAID (UNCLEAR) TO WHAT, NO `CAUSE I DON'T KNOW WHAT TO SAY.
MARTINEZ: OKAY, BUT YOU, YOU DON'T WANNA ANSWER QUESTIONS?
McAFEE, REGINALD: PERTAININ' TO?
MARTINEZ: PERTAININ' TO CIRCUMSTANCES.
McAFEE, REGINALD: MAN. . . .
MARTINEZ: NOW LISTEN, LET'S NOT PLAY THIS GAME. MAN, YOU BEEN DOWN BEFORE, I DO. . . .
McAFEE, REGINALD: I DON'T KNOW . . .
MARTINEZ:. . . . (UNCLEAR. . . . TALKING AT THE SAME TIME). . . .
McAFEE, REGINALD: . . . . . (UNCLEAR . . .) TELLIN', AND I'M TELLIN' YOU.
MARTINEZ: OKAY.
McAFEE, REGINALD: (CHAIR SQUEAKING) THAT IF IT'S GOT SOMETHIN' TO DO WITH WHAT THE FUCK HE DID, I DON'T KNOW NOTHIN' ABOUT WHAT THE FUCK HE DID MAN.
MARTINEZ: AND YOU'RE MISSIN' THE POINT I'M MAKIN' HERE. I'M NOT ASKIN' YOU TO TELL ME THAT DO OR DON'T KNOW. I JUST HAVE QUESTIONS THAT I NEED CLARIFIED. IF YOU'RE WILLIN' TO ANSWER THE QUESTIONS, THAT'S YOUR BUSINESS, I NEED TO KNOW IF IT'S YES OR NO.
McAFEE, REGINALD: OKAY.
MARTINEZ: THAT, IS THAT A YES?
McAFEE, REGINALD: YEAH.[sic] (State's Ex. D3, at 5-6 (ellipses in orig.).) At the hearing on the motion to suppress, the interrogating officers testified that they had not understood McAfee to have been asserting his privilege against self-incrimination, but to have been denying involvement in the robbery. McAfee did not testify. The trial court found: In reviewing the videotape, I do think that there was some misunderstanding, some differing view of what questions were being asked and what questions were being answered. Viewed in the context of the entire conversation that went on back and forth, I do not believe that at that point in time Mr. McAfee had closed the door on any interrogation . . . Viewing the evidence in the light most favorable to the trial court's ruling, we hold that the trial court did not abuse its discretion in overruling McAfee's motion to suppress McAfee's statement. We overrule McAfee's second issue. Video Tape. In McAfee's third issue, he contends that the trial court erred in overruling McAfee's motion to suppress a video recording of McAfee eating part of a tissue that had McAfee's blood on it. McAfee argues that he ate the tissue to avoid its being used as a specimen of his DNA, and that his act constituted an invocation of his privilege against warrantless searches. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . ." U.S. CONST. amend. IV; see Tex. Const. art. I, § 9. The taking of a blood specimen constitutes a search and seizure for Fourth Amendment purposes. Schmerber v. California, 384 U.S. 757, 766-72 (1966); accord State v. Hardy, 963 S.W.2d 516, 523 (Tex.Crim.App. 1997); Aliff v. State, 627 S.W.2d 166, 169 (Tex.Crim.App. [Panel Op.] 1982). "The invocation of constitutional rights such as . . . freedom from unreasonable searches may not be relied upon as evidence of guilt. To permit the use of such evidence for purposes of incrimination would erode the protections guaranteed by both state and federal constitutions." Reeves v. State, 969 S.W.2d 471, 493 (Tex.App.-Waco 1998, pet. ref'd) (quoting Powell v. State, 660 S.W.2d 842, 845 (Tex.App.-El Paso 1983, no pet.)); see Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App. 1991). Appellate courts, however, find a violation on the prohibition against evidence of the assertion of a privilege only when the defendant expressly asserts the privilege or the defendant's actions lead to the inescapable conclusion that the defendant thereby asserted a privilege. See Raffaelli v. State, 881 S.W.2d 714, 717 (Tex.App.-Texarkana 1994, pet. ref'd); Dumas v. State, 812 S.W.2d 611, 614 (Tex.App.-Dallas 1991, pet. ref'd); Torres v. State, No. 14-97-01211-CR, 1999 Tex. App. LEXIS 8973, at *7 (Tex.App.-Houston [14th Dist.] Dec. 2, 1999, pet. ref'd) (not designated for publication). Viewing the evidence in the light most favorable to the trial court's finding, we hold that the trial court did not abuse its discretion in overruling McAfee's motion to suppress the video tape. We overrule McAfee's third issue. Charge. In McAfee's fourth issue, he contends that the trial court erred in overruling McAfee's objection to the trial court's charge. The court instructed the jury "that an officer need not stop his questioning unless the defendant's invocation of rights is unambiguous." McAfee argues that the instruction constituted a comment on the weight of the evidence. "[I]n each felony case . . ., the judge shall . . . deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case[,] not expressing any opinion as to the weight of the evidence, . . . summing up the testimony, [or] discussing the facts. . . ." TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp. 2005); see also id. art. 38.05 (Vernon 1979) (judge shall not "at any stage of the proceeding previous to the return of the verdict make any remark calculated to convey to the jury his opinion of the case"). "The primary reason for the rule is that an instruction `by the trial judge to the jury on the weight of the evidence reduces the State's burden of proving guilt beyond a reasonable doubt to the jury's satisfaction.'" Brown v. State, 122 S.W.3d 794, 798 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 938 (2004). "A charge that assumes the truth of a controverted issue is a comment on the weight of the evidence and is erroneous." Whaley v. State, 717 S.W.2d 26, 32 (Tex.Crim.App. 1986). "[A] court's jury instruction could violate article 36.14" by "obliquely or indirectly convey[ing] some opinion on the weight of the evidence by singling out that evidence and inviting the jury to pay particular attention to it. On this near end of the `improper-judicial comment' spectrum is an instruction that is simply unnecessary and fails to clarify the law for the jury." Brown at 801. "An instruction that focuses on a particular factor that may render a statement involuntary is an impermissible comment on the weight of the evidence." Rocha v. State, 16 S.W.3d 1, 20 (Tex.Crim.App. 2000). "Even a seemingly neutral instruction about a particular type of evidence constitutes an impermissible comment on the weight of the evidence in violation of Article 36.14 because such an instruction singles out a particular piece of evidence for special attention." Id. "To constitute reversible error, the trial court's comment to the jury must be such that it is reasonably calculated to benefit the State or to prejudice the rights of the defendant." Becknell v. State, 720 S.W.2d 526, 531 (Tex.Crim.App. [Panel Op.] 1986); accord Blue v. State, 41 S.W.3d 129, 134 (Tex.Crim.App. 2000); Moore v. State, 505 S.W.2d 842, 844 (Tex.Crim.App. 1974). "If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is `calculated to injure the rights of defendant,' which means no more than that there must be some harm to the accused from the error." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g) [(quoting Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 1981))]; accord Brown, 122 S.W.3d at 803. McAfee timely objected to the charge. We assume without deciding that the trial court erred. In assessing the likelihood that the jury's decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case. The reviewing court might also consider the jury instruction given by the trial judge, the State's theory and any defensive theories, closing arguments and even voir dire, if material to appellant's claim. Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App. 2000). "[W]hen conducting a harm analysis" of charge error, "the reviewing court may consider the following four factors: 1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and, 4) any other relevant information revealed by the record of the trial as a whole." Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App. 1996); accord Almanza, 686 S.W.2d at 171. The charge as a whole is unexceptional. It includes an instruction on the voluntariness of McAfee's statement. The statement was of little importance at trial. In it, McAfee did not admit to participation in the offense. The State referred to the statement once, in opening statement, and only with reference to McAfee's alibi. Accordingly, any charge error was harmless. We overrule McAfee's fourth issue. Having overruled McAfee's issues, we affirm.
The State introduced a copy of the Bryan Police Department offense report, which contained a transcription of officers' interview of McAfee. Both McAfee and the State quote and cite the transcription as authoritative, and neither questions its accuracy.