No. 04-03-00753-CR
Delivered and Filed: March 30, 2005. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-2547, Honorable Mark R. Luitjen, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
KAREN ANGELINI, Justice.
Benrick Peña appeals his conviction of the offense of aggravated assault against a public servant. Peña raises nine issues on appeal. We overrule all issues and affirm the judgment of the trial court.
BACKGROUND
In the early morning hours of January 14, 2003, San Antonio Police Officer Crystal Brown pulled over a young, Hispanic male driving a black Chevrolet Cavalier. Following a brief confrontation, the driver of the Cavalier, who was visibly agitated, reentered his vehicle and sped away from the scene. A short chase ensued. Officer Brown eventually located the Cavalier parked at the end of a cul-de-sac in a nearby residential neighborhood. When the driver of the vehicle observed the officer, however, he opened the trunk of the car and pulled out a large, black assault rifle and began shooting at the officer's patrol vehicle. Recognizing she was out-gunned, Officer Brown escaped from her patrol car and sought refuge while she waited for back-up. When back-up arrived, the suspect vehicle had left the scene. The suspect's Cavalier later was discovered abandoned several blocks away from the scene of the shooting. The vehicle was eventually traced to Benrick Peña, and he was arrested and charged with the offense of aggravated assault against a public servant for shooting at a San Antonio police officer. See TEX. PEN. CODE ANN. § 22.02(b)(2) (Vernon 2003). On August 20, 2003, Peña was convicted of this offense, and the jury assessed punishment at 99 years in the Texas Department of Criminal Justice, Institutional Division, with a fine of $10,000.00. Peña appeals his conviction in nine issues. PHOTOGRAPHIC ARRAY
Peña's first two issues on appeal address the validity of the State's pre-trial identification procedure. In his first issue, Peña asserts that he was denied a fair trial because he believes that State's Exhibit 18 was not the same photographic lineup that was used by the San Antonio Police Department to identify him as the shooter. Peña failed, however, to make a legal objection corresponding with these grounds at trial and further fails to point to any evidence that would substantiate such a claim. Accordingly, we overrule this issue on appeal. In his second issue, Peña contends that the trial court erred in admitting State's Exhibit 18 into evidence because the pre-trial identification procedure was impermissibly suggestive and, therefore, gave rise to a strong likelihood of misidentification. In general, an in-court identification that has been tainted by an impermissibly suggestive pre-trial photographic identification is inadmissible. Loserth v. State, 963 S.W.2d 770, 771-72 (Tex.Crim.App. 1998). In determining whether an in-court identification has been so tainted, we apply a two-step analysis: (1) was the pre-trial identification procedure impermissibly suggestive and, if so, (2) did the improperly suggestive procedure create a very substantial likelihood of irreparable misidentification? Id.; Garcia v. State, 988 S.W.2d 862, 863 (Tex.App.-San Antonio 1999, no pet.). At trial, the defendant bears the burden of establishing by clear and convincing evidence that the pre-trial identification procedure was improper. Garcia, 988 S.W.2d at 863. Furthermore, our analysis requires an examination of the totality of the circumstances surrounding the identification. Barley v. State, 906 S.W.2d 27, 33 (Tex.Crim.App. 1995). Here, the photographic array was not impermissibly suggestive. With regard to the contents of the array, the photographs depict six Hispanic men with features similar to those of Peña. All six men are young, clean-shaven, and have short, dark hair. Furthermore, with regard to the configuration of the array, Peña's mugshot is located at the bottom right-hand corner of the array, and nothing in the evidence shows, or even suggests, that Peña's photograph was indicated as the one the witness should select. See Morrow v. State, 139 S.W.3d 736, 742 (Tex.App.-Texarkana 2004, no pet.) ("it may be possible to configure a particular photographic array in a manner to suggest the desired identification"). Therefore, we find nothing impermissibly suggestive about either the array itself or the officer's use of the array in the questioning of the witness. Because the photographic array was not impermissibly suggestive, there is no need to reach the second prong of the Loserth analysis. Accordingly, we overrule this issue on appeal. MOTION FOR CONTINUANCE
In his third issue on appeal, Peña contends that the trial court erred in denying his motion for continuance based on the unavailability of a material witness. To preserve error on such a ground, however, the defendant must file a motion for new trial setting forth the testimony expected to be presented by the witness. See Taylor v. State, 612 S.W.2d 566, 569 (Tex.Crim.App. 1981); Burns v. State, 923 S.W.2d 233, 237 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). Here, Peña failed to file a motion for new trial either alleging that his motion for continuance was improperly denied or setting forth the testimony expected to be presented by the witness. Therefore, he has not preserved this issue for appeal. Further, even if we were to assume appellant did preserve error, Peña has failed to establish any actual prejudice due to the denial of his motion for continuance. The granting or denial of a motion for continuance is within the trial court's sound discretion, and the trial court's ruling will not be disturbed absent a clear abuse of discretion. See Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995). Moreover, we cannot find the trial court abused its discretion in denying a motion for continuance unless appellant establishes he was actually prejudiced. Id. Here, Peña alleges that he was prejudiced with insufficient time to interview Robert Lee Wilson, a material witness, and to incorporate the results of this investigation into his trial strategy. The only trial strategy that Peña proposed at trial, however, was that he hoped Wilson would admit that he was the man who shot at Officer Brown. Wilson was located during the trial and was available to testify. Yet, Peña never called Wilson as a witness. Therefore, Peña has failed to establish any actual prejudice resulting from the denial of his motion at trial. Accordingly, we overrule this issue on appeal. JUROR MISCONDUCT
In his fourth issue, Peña contends that the jury improperly considered parole law during deliberations and, therefore, committed reversible error. Nevertheless, Peña has failed to properly preserve this issue for appeal because he did not object on these grounds at trial, and he further failed to address this issue in a motion for new trial. Resnick v. State, 574 S.W.2d 558, 560 (Tex.Crim.App. 1978); Moreno v. State, 961 S.W.2d 512, 515 (Tex.App.-San Antonio 1997, pet. ref'd). Accordingly, we overrule this issue on appeal without considering the merits of the claim. APPELLANT'S STATEMENT
In addition, Peña challenges the trial court's admission of a statement he provided to the San Antonio Police Department following his arrest. In three issues, Peña contends that the trial court erred: (1) in denying his motion to suppress the statement; (2) by failing to file a written order making findings of fact; and (3) by failing to submit a charge to the jury instructing them to disregard the statement if they found it was not voluntarily given. We overrule all three issues on appeal. A. Motion to Suppress First, Peña contends that his statement should have been suppressed because it was given involuntarily. The determination of whether a statement is voluntary is a mixed question of both law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, we review a trial court's ruling on a motion to suppress under a bifurcated standard of review, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the court's application of the law to the facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Here, Peña gave a statement to the San Antonio Police Department shortly following his arrest on the afternoon of January 14, 2003. At the suppression hearing on the admissibility of the statement, Peña objected on the grounds that it was involuntarily given and that he had invoked his right to an attorney three separate times during the interview process. Peña's challenges to the admission of his written statement, however, are predicated on the assumption that his testimony at the suppression hearing was true and uncontradicted. To the contrary, Detective Whitson, the interviewing officer, testified to a completely different version of the relevant events. Detective Whitson testified that Peña was given his Miranda warnings both at the time of his arrest and prior to delivering his statement. Whitson also testified that Peña was neither threatened, induced, nor tricked into giving the statement. Moreover, Whitson testified that Peña never invoked his right to an attorney and never requested a termination of the interview, even declaring: "I want to give you one [a written statement] because I want to clear this thing up for you. I want to help you out." As the trier of fact at the suppression hearing, the trial court had the discretion to believe Detective Whitson when he testified that Peña did not ask for a lawyer and to disbelieve Peña's testimony to the contrary. On appeal, we defer to the trial court's credibility determinations. Therefore, viewing the record from the suppression hearing in the light most favorable to the trial court's ruling, we hold that the trial court did not err in refusing to suppress Peña's written confession on the ground that his request for counsel was denied. We also hold that the court did not err by refusing to suppress the confession on the ground that it was coerced and involuntary. Accordingly, we overrule Peña's fifth issue on appeal. B. Findings of Fact Second, Peña alleges the trial court erred by failing to file a written order making findings of fact with regard to the voluntariness of his confession at the conclusion of the suppression hearing. Again, we disagree. Where a trial court conducts a suppression hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964), outside of the jury's presence, it is proper for the trial court to dictate its findings and conclusions to the court reporter at the end of the hearing. When those findings have been transcribed and made a part of the record without objection, there has been a sufficient compliance with Article 38.22 of the Texas Code of Criminal Procedure. See Parr v. State, 658 S.W.2d 620, 623 (Tex.Crim.App. 1983); Amunson v. State, 928 S.W.2d 601, 608 (Tex.App.-San Antonio 1996, pet. ref'd). Here, the trial court dictated its findings of fact and conclusions of law into the record at the conclusion of the suppression hearing. Accordingly, we hold that the trial court substantially complied with Article 38.22, and we overrule Peña's sixth issue on appeal. C. Jury Charge Peña further claims the trial court erred by failing to submit a charge to the jury instructing them to disregard Peña's statement if they found it was not voluntarily given. Indeed, when evidence presented at trial raises a factual issue as to whether a defendant had been warned of his rights and voluntarily waived them prior to making a statement, he is entitled to a jury instruction on voluntariness of the confession. See Dinkins v. State, 894 S.W.2d 330, 353-54 (Tex.Crim.App. 1995). However, since Peña neither asked that such a charge be submitted to the jury, nor objected to the charge that was submitted, he has waived this issue on appeal. See King v. State, 502 S.W.2d 795, 798 (Tex.Crim.App. 1974); Beasley v. State, 629 S.W.2d 161, 163 (Tex.App.-Dallas 1982, no pet.). Accordingly, we also overrule Peña's seventh issue on appeal. ADMISSIBILITY OF EVIDENCE
Finally, Peña contends that the trial court erred when it admitted evidence of extraneous offenses at both the guilt-innocence and punishment phases of the trial. We review questions regarding whether the trial court erred in admitting evidence for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App. 1990). Therefore, so long as the trial court's ruling was at least within the "zone of reasonable disagreement," we will not intercede. See id. at 391. A. Drug Paraphernalia In his eighth issue, Peña contends that the trial court erroneously admitted evidence of several items of drug paraphernalia (bongs) that had been seized in a search of Peña's residence. Peña contends that the evidence of bongs constituted evidence of an extraneous offense that should have been excluded as both irrelevant and substantially more prejudicial than probative. See TEX. R. CIV. P. 403, 404(b). It is a fundamental rule of criminal jurisprudence that an accused must be tried only for the offense charged and not for being a criminal or bad person generally. Templin v. State, 711 S.W.2d 30, 32 (Tex.Crim.App. 1986); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App. 1972). Consequently, courts as a general rule do not permit the admission into evidence of extraneous offenses and prior misconduct. Albrecht, 486 S.W.2d at 100. There are exceptions to the rule, however, and one such exception permits introduction of extraneous offenses to circumstantially prove identity where the State lacks direct evidence. Id. Here, Peña contended throughout trial that Officer Brown had misidentified him as the driver of the suspect vehicle. Therefore, the evidence of bongs bearing Peña's fingerprints provided an affirmative link between Peña and the vehicle, which contained both fingerprints belonging to Peña as well as a marijuana cigarette that was discovered on the vehicle's passenger seat. Given the broad standard of review, we cannot hold that the trial court erred as a matter of law in admitting the bong evidence as both relevant to a material issue and more probative than prejudicial. Accordingly, we overrule Peña's eighth issue on appeal. B. Booking Slips In his ninth issue on appeal, Peña alleges that the trial court abused its discretion in admitting booking slips of extraneous offenses into evidence at the punishment phase of trial. Specifically, Peña contends that many of the exhibits should have been barred as stale and, therefore, both irrelevant and highly prejudicial under article 37.07 of the Texas Code of Criminal Procedure. Peña, however, has waived this issue on appeal. In order to preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. See TEX. R. APP. P. 33.1; Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). In addition, the issue on appeal must correspond with the objection made at trial. See Broxton, 909 S.W.2d at 918. Here, Peña objected to the admission of the booking slips at trial on the grounds that they were irrelevant, impermissible hearsay, cumulative and bolstering. In our review of the record, however, we find no objection that the booking slips are evidence of misdemeanors that occurred before January 1, 1996, or even that these booking slips were time-barred. Moreover, even if Peña had preserved this issue for review, he cannot show harm because the judgments were introduced without objection prior to the booking slips being offered. Accordingly, we overrule this issue on appeal. CONCLUSION
Having overruled all issues, we affirm the judgment of the trial court.