Opinion
NUMBER 13-14-00309-CR
02-11-2016
WILLIAM DAVID PARSONS, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Benavides
By two issues, appellant William David Parsons challenges his conviction for capital murder. See TEX. PENAL CODE ANN. § 19.03 (West, Westlaw through 2015 R.S.). Parsons argues that: (1) certain handwritten exhibits were admitted in violation of his Sixth Amendment right to counsel; and (2) there was an insufficient link in establishing the chain of custody. We affirm.
I. BACKGROUND
Parsons was charged by indictment with capital murder stemming from the murder of George Cardenas, while in the course of committing a robbery. See id. § 19.03(a)(2) (West, Westlaw through 2015 R.S.); see also id. § 29.02 (West, Westlaw through 2015 R.S.).
On October 19, 2011, Parsons and co-defendant Alvino Fuentes, Jr. went to Cardenas's house to rob Cardenas of drugs and money they were told Cardenas possessed. Based on Fuentes's testimony at trial, upon arriving at the house, Parsons confronted Cardenas and bludgeoned him to death. Parsons and Fuentes ransacked the house and took a small amount of money, prescription pills, and Cardenas's personal handgun.
A few weeks following the murder, the San Patricio County Sheriff's Office received a tip that led them to interview Parsons and Fuentes twice. Parsons denied any knowledge of the crime both times he was interviewed. Fuentes initially denied any knowledge, but he subsequently confessed to his and Parsons's role in the offense.
After their arrests, Parsons and Fuentes were housed in the same cell in the San Patricio County jail. While housed together, Parsons and Fuentes developed a code that they would use to communicate via letters through the jail house mail system. Though they were eventually separated, Parsons and Fuentes continued to communicate through letters and notes. During this time, Fuentes began turning over the correspondence from Parsons to his defense counsel. Fuentes's counsel, in turn, delivered the correspondence to the San Patricio County District Attorney's Office, in the hopes of receiving some leniency from the State related to his pending charges. However, both Fuentes and Fuentes's counsel testified during trial that no specific deal was ever reached between Fuentes and the State.
Through those letters, information came to light that Parsons believed Cardenas's blood was left on Parsons's eyeglasses, which he was wearing in the jail. San Patricio County Sheriff's Office Investigator Joe Gaitan requested and received a search warrant to seize Parsons's glasses from his person at the jail. DNA analysis of Parsons's eyeglasses later showed that DNA from both Parsons and Cardenas were discovered on the eyeglasses.
Fuentes testified against Parsons at his trial and explained the code he and Parsons had developed in their prison correspondence. The letters, as well as the glasses and the DNA results, were admitted into evidence. The jury found Parsons guilty of capital murder and the trial court sentenced Parsons to life imprisonment in the Texas Department of Criminal Justice-Institutional Division. This appeal followed.
II. SIXTH AMENDMENT RIGHT TO COUNSEL
By his first issue, Parsons alleges that handwritten notes written between Fuentes and himself were taken in violation of his Sixth Amendment right to counsel, and the trial court committed reversible error by admitting the notes into evidence at trial.
A. Standard of Review
In evaluating a Sixth Amendment right-to-counsel question, we use a bifurcated standard of review. See Manns v. State, 122 S.W.3d 171, 178 (Tex. Crim. App. 2003). "An appellate court should afford 'almost total deference' to a trial court's determination of the historical facts and to its determination of mixed questions of law and fact that turn on an evaluation of credibility and demeanor." Id. (citing Guzman v. State, 955 S.W.3d 85, 89 (Tex. Crim. App. 1997)).
B. Applicable Case Law
The inquiry we make is "whether, after the Sixth Amendment right to counsel has attached, the government has knowingly circumvented the defendant's right to counsel by using an undisclosed government agent to deliberately elicit incriminating information." Rubalcado v. State, 424 S.W.3d 560, 570 (Tex. Crim. App. 2014) (citing Massiah v. United States, 377 U.S. 201 (1964)). However, the rule in Massiah only applies "if the person who elicited statements from the defendant was a government agent." Id. at 575; see Manns, 122 S.W.3d at 178-79. The court of criminal appeals has declined to create a bright-line rule identifying what constitutes a government agent. See Rubalcado, 424 S.W.3d at 576. Instead, various jurisdictions agree upon "one common principle: 'to qualify as a government agent, the informant must at least have some sort of agreement with, or act under instructions from, a government official.'" Id. at 575 (quoting Manns, 122 S.W.3d at 183).
Additionally, a "defendant does not make out a violation of [his Sixth Amendment] right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police." Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986). "Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." Id. If an informant acts "entirely on his own volition, without any promises, encouragement, or instructions from the government," he should not be considered an agent of the government. Rubalcado, 424 S.W.3d at 575 (quoting Manns, 122 S.W.3d at 188).
C. Discussion
In order for the trial court to determine Fuentes's status as a government agent, a hearing was held outside the presence of the jury. The following exchange occurred:
Court: Were you working for the State?The trial court also allowed questions to be directed to Mr. Michael George, Fuentes's defense counsel:
Fuentes: No, sir.
Defense: Were you cooperating with the State of Texas to make a case against Mr. Parsons?
Fuentes: I was cooperating with my attorney.
Defense: Okay. But did you understand that once you confessed, did your attorney tell you that you would be cooperating with the State of Texas so that you could get a possible sentence reduction?
Fuentes: He told me that much later.
. . . .
State: Now, all of these letters that I have and these notes, Mr. Parsons, he knew about you already cooperating with the State, didn't he?
Fuentes: Toward the end, yes.
State: And he wrote you more notes after that, right?
Fuentes: Yes, sir.
. . . .
State: We—the more specific question, did any police officer, did anybody from the DA's office direct you to do any of this?
Fuentes: No, sir. My lawyer did.
. . . .
Defense: So the supplying of the notes was part of your cooperation or your client's cooperation with the district attorney's office to try to forge a deal?
George: Trying to, what, forge a deal?
Defense: You know what that means.
George: I mean, to try to - well, I don't know about forge. Ultimately if the information was something that was valuable, I was hoping it would be taken into consideration.
. . . .
Court: Did they [the DA's office] ever give you any instructions of anything they wanted your client to ask Mr. Parsons about and basically point an investigation through your client at Mr. Parsons?
George: No.
. . . .
Court: You're welcome to use the exhibits tomorrow over the defense attorney's objection. I don't find that this was an action on State directed action. It seems to be a defense-cut-throat action. When you swim with sharks, sometimes you get bitten. (Emphasis added)
. . . .
The following morning, the trial court made the following statement outside the presence of the jury.
Court: I'm simply making my decision not on the admissibility of any particular document, but I'll be making a decision based on the testimony that was introduced by Mr. Fuentes and by Mr. George.
Based on that I do not find that Mr. Fuentes is an agent of the
State. He is an agent of his attorney who was looking for the best deal for his client. I do not find that he acted in concert with the State of Texas, and, therefore, one of the legs of your required findings I can't make at this point in time by a preponderance of the evidence. I will not make that finding. Basically, if we were playing cards, I would call it Cut Throat. (emphasis added).
The court of criminal appeals recognizes that "an inmate who elicits information on his own initiative with the hope of striking a deal with the government is an entrepreneur, not a state agent." Manns, 122 S.W.3d at 184. The "selfish motives of an entrepreneurial inmate-informant who harbors an 'unencouraged hope to curry favor' are insufficient to make him a government agent when the government does nothing to encourage his efforts." Id. (quoting Thomas v. Cox, 708 F.2d 132, 136 (4th Cir. 1983), cert. denied, 464 U.S. 918 (1983)). The court of criminal appeals has also stated "'that the informer [that] has a self-interest in obtaining better treatment from the government does not thereby automatically make the informer an agent of the government. The motivation comes from the informer and not the government.'" Id. at 185 (quoting People v. Cardona, 360 N.E.2d 1306, 1306 (1977)). "And several courts have expressly held that the analysis does not change even if the government is aware of the entrepreneurial inmate's self-seeking tendencies and government officials believe-or even hope-that the inmate will elicit information from the defendant." Id.
This is precisely the situation in this case. Fuentes admitted during his testimony that he turned Parsons's letters over to his attorney in hope of gaining leniency regarding his own prosecution. Parsons testified during the guilt-innocence portion of the trial and admitted to a similar motive. When being questioned by his defense counsel, Parsons stated the following:
Counsel: Okay. We saw selected letters that you sent [Fuentes].
Parsons: Yes, sir.
Counsel: And notes. Can you tell us what you were doing in those letters or the notes?
Parsons: Yes, sir. The letters that I sent along with the notes are an attempt by myself to incriminate [Fuentes] due -
Counsel: To incriminate him?
Parsons: Yes, sir.
Counsel: Explain that.
. . . .
Parsons: The detectives did not care that I wasn't there [at the crime scene]. They decided to go with the lies based off of [Fuentes]'s testimony. I was trying to make sure that there was a way that [Fuentes] would have-that he would basically admit to it.
Counsel: Okay. Were you trying to get him-were you trying to incriminate him, or were you trying to get him to fess up that he had done this, to admit that he had done this?
Parsons: I was trying to get the explanation that he had done it.
Parsons never states that he was coerced into writing those letters or that he was not a willing participant. Further, Parsons does not dispute the "code" described by Fuentes to decipher the letters the State admitted into evidence. Through his own testimony, Parsons shows that he was also hoping to get information from Fuentes to help himself out in his own prosecution. Based on the holding by the trial court that Fuentes was not working as an agent of the state, we conclude that Fuentes's actions did not violate Parsons's Sixth Amendment rights. See Rubalcado, 424 S.W.3d at 575. The trial court did not commit reversible error by allowing the letters written between Parsons and Fuentes into evidence. We overrule Parsons's first issue.
III. CHAIN OF CUSTODY
By his second issue, Parsons alleges the trial court committed reversible error by admitting into evidence a pair of eyeglasses that were not properly authenticated by the State over defense counsel's objections.
A. Standard of Review
We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). As long as the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion, and the trial court's ruling will be upheld. Prible, 175 S.W.3d at 731.
In applying an abuse of discretion standard, we will not disturb the trial court's evidentiary ruling if it is correct under any applicable theory of law. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Error in the admission of evidence is non-constitutional error and is subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(b); Taylor v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008). "We have construed this to mean that an error is only reversible when it has a substantial and injurious effect or influence in determining the jury's verdict." Taylor, 268 S.W.3d at 592. "We should not overturn the conviction if we have fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but a slight effect." Id.
B. Applicable Law
Prior to the admission of evidence in a criminal case, "the court must determine whether the chain of custody, i.e., continuous and uninterrupted possession of the evidence, was preserved." Watson v. State, 421 S.W.3d 186, 190 (Tex. App.—San Antonio 2013, pet. ref'd). A "chain of custody is sufficiently authenticated when the State establishes 'the beginning and the end of the chain of custody, particularly when the chain ends at a laboratory.'" Id. (quoting Martinez v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd)). "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." TEX. R. EVID. 901(a). "Evidence may be authenticated or identified by different methods, including testimony by a witness with knowledge that 'a matter is what it is claimed to be.'" Dossett v. State, 216 S.W.3d 7, 17 (Tex. App.—San Antonio 2006, pet. ref'd) (quoting TEX. R. EVID. 901(b)(1)).
"Minor theoretical breaches in the chain of custody will not affect the admissibility of the evidence unless the defendant shows evidence of tampering or alteration." Garner v. State, 848 S.W.2d 799, 802 (Tex. App.—Corpus Christi 1993, no pet.). "Tagging an item of physical evidence at the time of its seizure and identifying the item at trial based upon the tag is sufficient for admission barring any showing by the defendant of tampering or alteration." Id.; see Stoker v. State, 788 S.W.2d 1, 10 (Tex. Crim. App. 1989), disapproved on other grounds by Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998). "The chain of custody is conclusively proven if an officer testifies that he or she seized the item, put an identification mark on it, placed it in the property room, and then retrieved it on the day of trial." Garner, 848 S.W.2d at 802-03.
C. Discussion
1. Chain of Custody was Not Properly Established
Parsons alleges that the State did not properly establish the initial link when proving up the chain of custody of the eyeglasses relating back to Parsons. The State is only required to prove the beginning and end link in a chain of custody. See Watson, 421 S.W.3d at 190. All other links in the chain of custody go to the weight of the evidence, not the admissibility. See Martinez, 186 S.W.3d at 62.
During the trial, the State put on testimony from four different witnesses to establish the chain of custody of the eyeglasses. These witnesses included: Investigator Gaitan and Deputy Austin Tucker from the San Patricio County Sherriff's Office, Fuentes, and Cynthia Morales, the DNA Analyst for the Department of Public Safety ("DPS") Crime Lab. Through the testimony, the State established that Deputy Tucker was the person who retrieved the eyeglasses from the county jail, where Parsons was being held. Tucker testified on direct examination that:
I went to the jail, asked for Mr. Parsons' glasses. We looked through his property. They weren't in his property; came back up; called Sergeant Gaitan. He told me that they were in the jail. He called back there to make sure they were there. I went back to talk to the jail sergeant. The jail sergeant told me that there was a pair of eyeglasses in the control room and went to control room; found the glasses. They were sealed in a little plastic evidence bag.However, when taken on voir dire examination by defense counsel, Tucker admitted:
Defense: Who had the glasses before you got them?
Tucker: I do not know. They were in jail control when I found them.
Defense: Who took the glasses from Mr. Parsons?
Tucker: That I do not know.
. . . .
Defense: Do you know who handled the glasses between the time they were taken from Mr. Parsons and the time that you picked them up at the jail?
Tucker No sir.
The State also elicited the following testimony regarding the eyeglasses from Fuentes.
State: Okay. And did [Parsons] wear glasses?Defense counsel took Fuentes on voir dire examination regarding the eyeglasses:
Fuentes: Yes, sir.
State: How do you-l mean, how many times did you see him with those glasses?
Fuentes: Since high school.
State: Okay. And do you recognize those as being his glasses?
Fuentes: Yes, Sir.
State: Okay. Did he have these glasses on the night you guys were arrested?
Fuentes: Yes, sir.
Defense: Mr. Fuentes, what is the make and who makes these glasses?
Fuentes: I don't know, sir.
Defense: Okay. Can you tell me anything without looking at them that would distinguish these glasses from any other glasses?
Fuentes: Just that the lower part of the glasses don't have wiring.
. . . .
Defense: So how can you be sure that these are [Parsons]'s glasses?
Fuentes: Because he has had them since like high school.
Defense: He has had them since high school, but how can you tell that these are [Parsons]'s? I mean, is there something distinguishing about these glasses that makes you know that they are [Parsons]'s?
Fuentes: I can't really say so. I just recognize them.
Defense counsel objected to chain of custody following Fuentes's testimony, and the trial court sustained the objection. The State was able to admit the eyeglasses following the testimony by Cynthia Morales, the DNA analyst. Based on her testing, Morales stated that a mixture of DNA was located on the eyeglasses. Morales testified that neither Parsons nor Cardenas could be excluded as a contributor to the DNA profiles found.
Although the trial court admitted the eyeglasses into evidence following the testimony of Morales, we find that the State did not properly prove up the first link in the chain of custody. See Watson, 421 S.W.3d at 190. Deputy Tucker recovered a pair of eyeglasses at the jail that were contained in an evidence bag, but there was no testimony elicited from the State regarding whether there were any identifiable markings or other positive indications that those particular eyeglasses were collected from Parsons. See Gamer, 848 S.W.2d at 802-03. Nonetheless, based on all the testimony that was given by the different State witnesses, the trial court could have believed that a reasonable juror would have understood the evidence to be authenticated or identified. However, without the first link in the chain of custody properly proven, we conclude the trial court erred by admitting the eyeglasses. Next, we proceed to determine if the error was harmful. See Taylor, 268 S.W.3d at 578-79.
2. Was the Error Harmless?
Since this error is not of a constitutional dimension, "the appropriate harm analysis is therefore the one set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure, which dictates that a non-constitutional error 'that does not affect substantial rights must be disregarded.'" Taylor, 268 S.W.3d at 592 (quoting TEX. R. APP. P. 44.2(b)). "We have construed this to mean that an error is reversible only when it has a substantial and injurious effect or influence in determining the jury's verdict." Id. "We should not overturn the conviction if we have fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but slight effect." Id.
Although we conclude that the admission of the eyeglasses was error, we do not find the error to be harmful. The eyeglasses were a key piece of evidence presented by the State; however, it was not the only important piece of evidence presented. The testimony of Fuentes and the multiple letters and notes written by Parsons linked Parsons to the murder of Cardenas. We find the letters were tantamount to a confession made by Parsons to Fuentes, who we have already determined was not working as a state agent or under the direction of law enforcement. Additionally, Parsons took the stand and did not refute the "code" as explained by Fuentes. Since the "code" was how the letters and notes were translated, the fact that Fuentes and Parsons agreed on the translation supports their authenticity. Parsons and Fuentes wrote letters and notes to each other with the same objective in mind: to try to get the other one to take the blame for Cardenas's murder. We find that the testimony of Fuentes and the letters and notes were sufficient to support the jury's verdict. Even though the State did not properly prove the initial link in the chain of custody, there were other relevant pieces of evidence with which to convict Parsons of capital murder.
Here, we find the error in the chain of custody would have but a slight effect on the verdict rendered and therefore was harmless error. See Taylor, 268 S.W.3d at 592. We find the jury could have reasonably linked Parsons to Cardenas's murder based on the testimony of Fuentes, the letters and notes admitted into evidence, and Parsons's own testimony.
IV. CONCLUSION
We affirm the trial court's judgment.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 11th day of February, 2016.