From Casetext: Smarter Legal Research

Ozuna v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 28, 2006
No. 05-05-01499-CR (Tex. App. Nov. 28, 2006)

Opinion

No. 05-05-01499-CR

Opinion Filed November 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-55236-PM.

Before Justices MORRIS, WHITTINGTON, and RICHTER.


OPINION


Joe Louis Ozuna, Jr. appeals his jury conviction for capital murder. In two points of error, Ozuna contends the court erred in admitting into evidence three inculpatory statements he gave to an investigating officer and in not instructing the jury on the lesser-included offense of felony murder. In an additional point, Ozuna complains his counsel was ineffective in failing to request an instruction concerning the voluntariness of his statements. Finding no reversible error, we affirm.

Background

This case stems from the August 2004 triple murder of Jesus Barajas, Alfred Cedillo, and Fernando Jasso. The three were found in the ransacked apartment of their cousin, Jose Jasso. Several items had been taken from the apartment and each victim was found nude, with his arms and legs tied behind him, and with a single gun-shot wound to the head. Ozuna was identified as a suspect by one of three other suspects and was arrested and questioned two days after the murder. Over a period of about five hours, Ozuna provided Detective John Davison three statements in which he progressively admitted his involvement in the murders, starting with a declaration that he robbed the victims but did not know they would be killed and ending with an admission that he had knowledge the victims would be murdered, he provided the weapon used in the murders, and he personally, although accidentally, killed Barajas. Ozuna was charged with the capital murder of Barajas and prior to trial moved to suppress the three statements on the ground they were involuntary. Following a hearing in which Davison was the sole witness, the trial judge denied the motion, specifically finding Ozuna knowingly, intelligently, and voluntarily waived his rights and that the statements were freely and voluntarily given. The issue of voluntariness was relitigated at trial, and Davison was again the sole witness on this issue. Testifying similarly to his testimony at the suppression hearing, Davison stated he met with Ozuna in the Homicide Unit interview room at the police station around 2:00 p.m. on the day Ozuna was arrested. He informed Ozuna he was investigating a capital murder, and before asking any questions, gave Ozuna the opportunity to use the restroom, eat and drink. Ozuna declined. Davison then read Ozuna his Miranda warnings. Ozuna indicated he understood the warnings, waived his rights, and began talking with Davison. Davison and Ozuna spoke for about thirty minutes, at which time, Ozuna's statement was reduced to writing. Davison had Ozuna read the written statement aloud, make necessary corrections, and confirm the statement accurately reflected what he had said. Davison then re-read Ozuna the Miranda warnings and had Ozuna again read the written statement aloud, make any further changes, confirm the statement accurately reflected what he had said, and sign the statement in front of a witness. Davison subsequently left the room for about an hour to confer with officers who had interviewed the other suspects. When he returned, Davison informed Ozuna that he had received some information and that it appeared Ozuna was "leaving quite a bit out" of his statement. A second officer also came into the room and told Ozuna he should tell the truth. Ozuna responded by providing additional details and a second statement was written around 4:30 p.m. After having Ozuna read the written statement, make necessary corrections, and confirm the statement reflected what he had said, Davison re-read Ozuna his Miranda warnings and had Ozuna again read the written statement aloud, make any further changes, confirm the statement accurately reflected what he had said, and sign the statement in front of a witness. Davison subsequently left the room for another hour, returned, told Ozuna that he thought Ozuna was "getting there" as far as his statement, and encouraged Ozuna to continue telling the truth. At around 6:30 p.m., Ozuna's third statement was written. After following the same steps he had followed with the first two statements, Davison had Ozuna sign the third statement in front of a witness, and then left the room. Davison returned to the room and spoke to Ozuna for an additional thirty minutes. Davison attempted to get a fourth statement but Ozuna refused, at which time the interview was concluded. Ozuna remained in the interview room another hour before he was transported to jail. Davison testified that Ozuna was calm throughout the interview and never asked for an attorney, for food or drink, or to go to the restroom despite given a chance to do so. Davison also testified he never coerced or threatened Ozuna and did not promise him any leniency in exchange for his statement. On cross-examination, Davison stated the interview was not recorded and that Ozuna remained in the windowless interview room, with the door closed and without making any phone calls, for approximately five to six hours. Davison also stated that he did not explain to Ozuna that a capital murder conviction would result in either a life sentence or the death penalty. At the time, Ozuna was nineteen years old. Ozuna did not testify at trial but through his counsel argued the statements were the result of a "coercive atmosphere." Ozuna argued the statements were involuntary and should not be considered because he was a teenager, was denied communication with his family and friends, and was kept in custody for six and a half hours while the police talk[ed] to him. Ozuna's efforts to exclude these statements from evidence were unsuccessful, and the statements formed the bases of the State's case.

Voluntariness of Statement

In his first point, Ozuna asserts the trial court erred in denying his motion to suppress and allowing his inculpatory statements into evidence. Like at trial, he argues the statements were the product of a "coercive atmosphere" and were in violation of his due process rights under the Fourteenth Amendment of the United States Constitution. See U.S. Const. amend. XIV. Ozuna maintains that the combination of:
* his age,
* his being in the interview room, with the door closed and with no windows, restroom, food or drink, for over six hours,
* his not "being allowed" to leave the room, call his parents, or call family members
* his not being explained the range of punishment
* his being left alone in the interview room for an hour at a time in between each statement, and
* his being confronted by a second officer who accused him of lying and pressured him to tell the truth rendered his statements involuntary. We disagree.
To be admissible, a confession must be voluntarily given and free from coercion or improper influences. Wyatt v. State, 23 S.W.3d 18, 23 (Tex.Crim.App. 2000). A confession is involuntary or coerced if the totality of the circumstances demonstrate the defendant did not make the decision to confess of his own free will. Green v. State, 934 S.W.2d 92, 99 (Tex.Crim.App. 1996). In reviewing a trial court's ruling on the voluntariness of a confession, we view the evidence in the light most favorable to the trial court's ruling and consider such factors as the age and mental ability of the accused, length of detention and interrogation, the presence or absence of physical brutality, the location and hour of questioning, and whether the accused was permitted access to his family or an attorney. Gallegos v. Colorado, 370 U.S. 49, 51-52 (1962); State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999); Vasquez v. State, 179 S.W.3d 646, 658 (Tex.App.-Austin 2005, pet. granted). We give deference to the trial court's fact findings, but review the trial court's legal determination de novo. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000). Viewing the evidence here under the appropriate standard, we conclude the trial court did not err in denying Ozuna's motion to suppress and allowing his inculpatory statements into evidence. Although Ozuna was questioned over a five-hour period in a windowless room at the police station, nothing in the record reflects he was unwilling to talk nor that his statements were made against his will. When Ozuna did refuse to continue talking-when Davison attempted to obtain a fourth statement sometime after 7:00 p.m., Davison terminated the interview. Although Ozuna complains he was not allowed to leave the room or call his family, nothing in the record reflects he requested to do so. In fact, Davison testified Ozuna was given the opportunity to use the restroom, eat, and drink, but he declined. Additionally, although Ozuna complains that Davison did not advise him of the range of punishment and asserts his age rendered his statements involuntary, Ozuna has not shown how. Moreover, nothing requires an officer to advise an accused of the range of punishment prior to questioning, and while youth is a factor considered in determining the voluntariness of a statement, it does not without more, establish an inability to freely agree to give a statement. See, e.g., Barnes v. Johnson, 160 F.3d 218, 223 (5th Cir. 1998) (suspect need not be told that statement or confession may expose him to death penalty); Vasquez, 179 S.W.3d at 659 (youth one of several factors considered in determining voluntariness of statement). Finally, although Ozuna was confronted by a second police officer who accused him of lying and told him to tell the truth, nothing in the record suggests the officer's tactics improperly compelled Ozuna to continue talking. See State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999) (telling suspect "what had to be" in statement not type of practice held to be inherently coercive). No physical brutality occurred and no threats or promises of leniency were made. Ozuna's argument that a "coercive atmosphere" rendered his statements involuntary is without merit. Cf. Davis v. North Carolina, 384 U.S. 737 (1966) (appellant's will overborne by "sustained pressures upon him" such as repeated interrogations over sixteen days without being advised of rights and without being allowed to see anyone or make telephone calls) and Smith v. State, 779 S.W.2d 417, 429 (Tex.Crim.App. 1989) (eight hours of questioning without food did not render confession involuntary in light of appellant's willingness to continue, being Mirandized, and understanding his rights); Fineron v. State, 201 S.W.3d 361 (Tex.App.-El Paso 2006, no pet.) (seven hours of questioning did not render confession involuntary where appellant given water, allowed breaks, and offered food and cigarettes); Vasquez, 179 S.W.3d at 662-63 (seven hours of "increasingly coercive interrogation by two trained homicide detectives," isolation from wife, and having shoes taken did not render confession involuntary where appellant repeatedly told he could leave, was given his car keys, yet chose to continue talking); Bell v. State, 169 S.W.3d 384, 391-92 (Tex.App.-Fort Worth 2005, pet. ref'd) (eight hours of questioning while in handcuffs and leg shackles did not render confession involuntary where appellant never indicated he did not want to answer any more questions or wanted to speak to attorney and never requested food, water, or bathroom breaks). We overrule Ozuna's first point of error.

Effectiveness of Counsel

In his second point of error, Ozuna asserts his counsel was ineffective in failing to request a jury instruction on the voluntariness of the three statements he made to Davison. In making this argument, Ozuna notes that his counsel moved pre-trial to suppress the statements, relitigated the issue at trial, and argued to the jury at closing that the statements were involuntary. Ozuna also relies on the same factors upon which he relied in arguing the court erred in denying his motion to suppress the statements. Ozuna maintains counsel's actions and these factors raised questions in the jury's minds regarding the voluntariness of the statements which could only be resolved by a proper jury charge instruction, and counsel's failure to request such an instruction amounted to deficient performance. Ozuna further argues that had counsel asked for the instruction, the result of the trial would have been different because the jury would have found the statements were involuntary, would not have considered them, and would have acquitted Ozuna. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence (1) deficient performance and (2) prejudice. Busby v. State, 990 S.W.2d 263, 268 (Tex.Crim.App. 1999). To establish deficient performance, the appellant must show that counsel's actions fell below "prevailing professional norms." See Cardenas v. State, 30 S.W.3d 384, 391 (Tex.Crim.App. 2000). To establish prejudice, the appellant must show a reasonable probability that the trial's result would have been different but for counsel's deficient performance. Id. Failure to make the required showing of either deficient performance or prejudice defeats the ineffectiveness claim. Dewberry v. State, 4 S.W.3d 735, 757 (Tex.Crim.App. 1999). Here, although Ozuna maintains counsel was deficient for failing to request an instruction on voluntariness, we disagree. To show counsel was deficient for such failure, Ozuna must show he was entitled to the instruction. Before a jury may be instructed on the issue of voluntariness of a statement, some evidence must be presented raising the issue. See Sorto v. State, 173 S.W.3d 469, 489 (Tex.Crim.App. 2005), cert. denied, 126 S.Ct. 2982 (2006); Terrazas, 4 S.W.3d at 727. The evidence may come from any source but it must show that the confession was not given voluntarily. Vasquez, 179 S.W.3d at 658-59. Nothing in the record here, however, shows that the factors upon which Ozuna relies affected the voluntariness of his statements. No evidence exists that he asked to speak to anyone but was told he could not, that he asked to leave but was somehow convinced to stay and continued talking, or that he was uneducated and unable to read. Cf. Vasquez, 179 S.W.3d at 662 (defendant entitled to instruction where officers did not inform him of his Miranda rights until after he had given detailed confession, his requests to speak to wife generally ignored or denied, and when he asked to leave, officers took his boots as evidence and told him he could leave but not go home because officers were executing a search warrant). For the same reason we have concluded that the trial court did not err in overruling Ozuna's motion to suppress and allowing the three statements into evidence, we also conclude no evidence was presented raising the issue of voluntariness. And, because no evidence was presented raising the issue of voluntariness, Ozuna was not entitled to an instruction on voluntariness and his counsel cannot be deficient for failing to request it. See, e.g., Cardenas, 30 S.W.3d at 392 (counsel not deficient for failing to request lesser-included offense instruction where no evidence supported entitlement to instruction). We overrule Ozuna's second point of error.

Lesser-included Offense

In his third point of error, Ozuna argues the court erred in not instructing the jury on the lesser-included offense of felony murder. In making this argument, Ozuna correctly notes that felony murder is a lesser-included offense of capital murder, and that the only difference between the two offenses is the culpable mental state. Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005). Felony murder is an unintentional murder committed in the course of committing a felony while capital murder requires an intentional cause of death. Tex. Pen. Code Ann. §§ 19.02(b)(3), 19.03(a)(2) (Vernon 2003 Supp. 2006); Salinas, 163 S.W.3d at 741; Smith v. State, 187 S.W.3d 186, 195-96 (Tex.App.-Fort Worth 2006, pet. ref'd). Because Ozuna stated in one of his statements that he "accidentally" killed Barajas, Ozuna maintains the trial court should have instructed the jury on felony murder. In response, the State points out that Ozuna failed to request such an instruction at trial or object to its omission. As a result, the State argues, Ozuna failed to preserve this complaint for review. We agree. An appellant may not complain for the first time on appeal about the omission of an unrequested instruction on a lesser-included offense. Thomas v. State, 701 S.W.2d 653, 656 (Tex.Crim.App. 1985); Paz v. State, 44 S.W.3d 98, 100 (Tex.App.-Houston [14th Dist.] 2001, pet. dism'd, untimely filed). To preserve this issue for appeal, the appellant must request such an instruction or object to its omission at trial. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2006); Darnes v. State, 118 S.W.3d 916, 921 (Tex.App.-Amarillo 2003, pet. ref'd). Because Ozuna failed to do so, he has waived any error. We overrule his third point of error. We affirm the trial court's judgment.


Summaries of

Ozuna v. State

Court of Appeals of Texas, Fifth District, Dallas
Nov 28, 2006
No. 05-05-01499-CR (Tex. App. Nov. 28, 2006)
Case details for

Ozuna v. State

Case Details

Full title:JOE LOUIS OZUNA, JR., Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Nov 28, 2006

Citations

No. 05-05-01499-CR (Tex. App. Nov. 28, 2006)