Opinion
NO. 01-19-00680-CR
03-25-2021
DENZEL REDMAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas
Trial Court Case No. 1634096
MEMORANDUM OPINION
A jury convicted appellant, Denzel Redman, of aggravated sexual assault, with one prior felony enhancement, and assessed his punishment at 30 years' confinement. In two issues on appeal, appellant contends the trial court abused its discretion by denying (1) appellant's motions for a mistrial after a witness twice referred to appellant's incarceration, and (2) appellant's motion to suppress what he contends was a custodial statement taken in violation of Miranda and article 38.22 of the Texas Code of Criminal Procedure. We affirm.
See Miranda v. Arizona, 384 U.S. 436 (1966).
BACKGROUND
Appellant and the complainant, S.H., met in the summer of 2016 at a restaurant owned by mutual friends. Each describes the relationship that followed very differently. S.H. testified that they dated casually and had consensual sex once, after which she decided that she was not interested in pursuing a relationship.
Appellant, however, described an ongoing sexual relationship, during which they had consensual sex several times. He testified that he once blocked her phone number because she "was being annoying." Appellant claimed that S.H. once loaned him money and then "cussed him out" because he would not spend more time with her. Appellant said that the last time he saw appellant in 2016 was around Christmas when he ran into her at the mall. According to appellant, S.H. confronted him, asking "why the F you play with me?" He left.
Both appellant and S.H. agreed that they had no contact until April 6, 2017, when he called her while she was on a trip to New York. S.H. testified that she invited appellant to come see her when she got home, but he never did.
On the morning of April 12, 2017, S.H. awoke to find 12 missed calls from appellant. Her dog was barking, and appellant was banging on the door. She opened the door, and appellant pushed her inside to the bedroom, shoved her onto the bed, climbed on top of her, and began choking her. S.H. asked use the bathroom, so appellant allowed her to go but he followed her. Once in the bathroom, S.H. testified that appellant forced her to perform oral sex, then made her sit on top of him for vaginal sex. She testified that appellant choked her several times and threatened to kill her. Afterward, S.H. claimed that when she opened the door to her apartment to let her dog out, appellant went outside to smoke a cigarette. She quickly locked the door and called her boss and the police.
Appellant admitted that he went to S.H.'s house in the early morning of April 12 and that they had consensual sex. He explained that he often had to call S.H. many times before she would answer the telephone. He claimed that after sex, he told S.H. that he needed $1500, which she gave him. He testified that, while he was showering, S.H. went through his cell phone and became angry when she noticed that he had saved her contact as "crazy bitch." Appellant claimed that S.H. demanded her money back and chased him to the car, so he left.
Police responded to S.H.'s call, and Officer D. Alcantara was dispatched to the scene, where he observed red marks on S.H.'s neck. Alcantara called an ambulance to take S.H. to the hospital for Sexual Assault Nurse Examination (SANE). The examination revealed no evidence of acute genital injury, but the nurse conducting the examination observed bruising and abrasions to S.H.'s body. S.H. had scratches on her chin, scratches to the front and side of her neck, and petechiae of the neck. The nurse also took vaginal swabs and swabs from S.H.'s neck so that a DNA analysis could be conducted.
Meanwhile, S. Baltazar, a detective with the Houston Police Department's Adult Sex Crimes unit, identified appellant as S.H.'s reported assailant. After discovering that appellant was in jail on an unrelated offense, Baltazar spoke to appellant at the jail. Appellant told Baltazar that he had not seen S.H. in a couple of years. Baltazar then obtained a warrant to collect DNA from appellant.
This fact was made clear outside the presence of the jury during a Motion to Suppress hearing but was alluded to during Baltazar's testimony and is the subject of issue one of this appeal.
Subsequent analysis showed that appellant could not be excluded as a contributor to the DNA collected from either S.H.'s vaginal swab or the swab from taken her neck.
For the vaginal swab, the State's expert testified that "[t]he probability that a randomly chosen unrelated individual would be included as a possible contributor to this DNA profile is approximately one in 3.5 nonillion for Caucasians; one in 360 septillion for African-Americans; one in 1.6 nonillion for Hispanics; and one in 16 nonillion for Asians."
For the neck swab, the State's expert testified that "[t]he probability that a randomly chosen unrelated individual would be included as a possible contributor to this . . . foreign deduced profile to approximately one in 8.1 octillion for Caucasians; one in 5.7 septillion for African-Americans; and one in 8.4 octillion for Hispanics and one in 130 octillion for Asians."
MOTION FOR MISTRIAL
In his first issue, appellant contends the trial court abused its discretion when it denied appellant's request for a mistrial. Specifically, appellant argues that when "[t]he lead detective investigating the allegation of sexual assault testified that appellant had been previously incarcerated," such testimony "was not an isolated incident," and "[a]ppellant's credibility was damaged by the detective's improper testimony regarding [appellant's] criminal history even before he testified." Appellant further contends that the trial court's instructions to disregard the officer's testimony were insufficient to cure the error.
Background
During the direct examination of the investigating police officer, the following exchange took place:
(Officer): After I got [the complainant's] statement, I then found the listed suspect's information and saw that he was currently in custody at a later date [sic].
(Defense Counsel): Your Honor, may we approach?
(Trial Court): You may approach.
[Bench Conference]
(Defense Counsel): Your Honor, at this time we move for a mistrial. He just stated that our guy is in custody on an unrelated case.
(Trial Court): That would be overruled.
(Prosecutor): I did not anticipate that he was going to say that.
(Trial Court): Understand. Your objection as to what he—
(Defense Counsel): And we'd ask the jury—
(Trial Court): What is your objection?
(Defense counsel): Our objection is that it's improper character evidence and we'd also—
(Trial Court): That is sustained.
(Defense Counsel): And we'd ask that the jury disregard—have an instruction to disregard that—
(Trial Court): Okay.
[End of Bench Conference]
Once again before the jury, the trial court stated, "The jury will disregard the witness's last statement."
The next day, when questioning of the officer resumed, the prosecutor asked the officer about obtaining appellant's DNA and the following exchange took place:
(Prosecutor): Did you end up getting a DNA sample from the defendant?
(Officer): Yes, I did.
(Prosecutor): How did you do that?
(Officer): I had scheduled another interview and I went to the jail, I believe, and got his—gave him a copy of the search warrant and got his DNA there.
(Defense Counsel): Your Honor, may we approach again?
[Bench Conference]
(Defense Counsel): Again, we'd object to any testimony regarding [appellant] being in jail or in custody. And again move for a mistrial. This is the second time this officer has implied [appellant is] in jail or in custody.
(Trial Court): Your objection is sustained. Your motion for mistrial is denied.
(Trial Court): Okay. And then we ask that the jury disregard the previous statement.
[End of Bench Conference]
(Trial Court): The jury is instructed to disregard the previous statement.
Standard of Review and Applicable Law
We review a trial court's denial of a mistrial for an abuse of discretion, and we must uphold a judge's decision denying a mistrial if it was in the zone of reasonable disagreement. See Archie v. State, 340 S.W.3d 734, 738-39 (Tex. Crim. App. 2011); Griffin v. State, 571 S.W.3d 404, 416 (Tex. App.—Houston [1st Dist.] 2019, pet. ref'd). "A mistrial is required when the question is 'clearly calculated to inflame the minds of the jury and is of such character as to suggest the impossibility of withdrawing the impression produced on their minds.'" Hernandez v. State, 805 S.W.2d 409, 414 (Tex. Crim. App. 1990) (quoting Gonzales v. State, 685 S.W.2d 47, 49 (Tex. Crim. App. 1985)).
A mistrial is an extreme remedy, and "[o]nly in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). "A mistrial is the trial court's remedy for improper conduct that is 'so prejudicial that expenditure of further time and expense would be wasteful and futile.'" Id. (quoting Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)). "Therefore, a mistrial should be granted only in cases where the 'reference was clearly calculated to inflame the minds of the jury or was of such damning character as to suggest it would be impossible to remove the harmful impression from the jurors' minds.'" Young v. State, 283 S.W.3d 854, 878 (Tex. Crim. App. 2009) (quoting Rojas v. State, 986 S.W.2d 241, 250 (Tex. Crim. App. 1998)). Otherwise, sound discretion normally requires the trial judge to consider less drastic alternatives. Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. 1981).
In determining whether a mistrial is warranted, we balance three factors: (1) the severity of the misconduct, (2) curative measures, and (3) the certainty of conviction without the misconduct. Ramon v. State, 159 S.W.3d 927, 929 (Tex. Crim. App. 2004).
"[E]rror will not necessarily be reflected in every unresponsive answer by a State's witness which implicates a reference to the fact that a defendant has been . . . incarcerated in the penitentiary[,] [and,] [e]ven where such prejudicial information is inadvertently placed before a jury, the general rule is still that an instruction by the trial judge to the jury to disregard such answer will be sufficient to cure any unresponsive answer." Tennard v. State, 802 S.W.2d 678, 685 (Tex. Crim. App. 1990) (quoting Williams v. State, 643 S.W.2d 136, 138 (Tex. Crim. App. 1983)); see also Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000) ("Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses."). We presume the jury followed the trial court's instruction to disregard testimony in absence of evidence that it did not. See Ladd, 3 S.W.3d at 567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App. 1987)).
Analysis
The record before us indicates that the references to appellant's confinement in jail were brief, unsolicited, and followed by prompt instructions from the trial court to disregard. The State's questions do not appear to have been designed to elicit the non-responsive answers, and appellant does not contend otherwise. Nothing in the record suggests the answer to the question was calculated to inflame the minds of the jury. See Wilson v. State, 90 S.W.3d 391, 395 (Tex. App.—Dallas 2002, no pet.) ("The witness's reference to [the defendant's] previous incarceration was not so calculated to inflame the minds of the jury. . . ."). Nor were the statements of "such damning character" that it "would be impossible to remove the harmful impression from the jurors' minds[]" through an instruction to disregard. See Young, 283 S.W.3d at 878; Ladd, 3 S.W.3d at 567. Furthermore, the trial court directed the jurors to disregard the statements and nothing in the record indicates that the jury did not follow the trial court's instructions.
Also, the certainty of conviction was likely not influenced by the officers' reference to appellant's incarceration. Here, the jury heard a S.H., who identified appellant as her assailant immediately after the assault. Her description of having been choked during the assault was corroborated by photographs of her taken soon after the assault. Appellant's DNA was recovered from S.H.'s body, including her neck, during a SANE exam. The jury, via the responding officer's bodycam, was able to see S.H. as she spoke to police immediately after the assault. This was just some of the evidence supporting S.H.'s description of an assault rather than appellant's description of consensual sex.
Appellant nevertheless argues that, because reference to appellant's confinement in jail occurred twice, appellant "was always viewed through the lens of appellant having a criminal history." However, the record shows that after the first reference, which the trial court instructed the jury to disregard and we presume that it did, but before the second, the officer was asked about how he identified appellant as "Bugatti," the name that S.H. knew him to go by. The officer responded, "I put his name into our database . . . typed in Bugatti and the pictures match the same as that person as Denzel Redman's criminal history." Appellant did not object to this reference to his criminal history. Thus, the issue of appellant's criminal history was already before the jury, through unobjected to testimony, before the second reference to appellant's incarceration was made. See Jackson v. State, No. 07-20-00046-CR, 2020 WL 6588603, at *1 (Tex. App.—Amarillo Nov. 10, 2020, pet. ref'd) (mem. op., not designated for publication) (noting that, in conducting mistrial analysis, similar evidence admitted elsewhere without objection mitigates against harm); Schmidt v. State, No. 01-94-00799-CR, 1996 WL 89324, at *2-3 (Tex. App.—Houston [1st Dist.] Feb. 29, 1996, pet. ref'd) (not designated for publication) (denying of three motions for mistrial based on admission of extraneous offense not error; same evidence admitted elsewhere without objection); see also Jackson v. State, 287 S.W.3d 346, 354 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding complainant's two references to appellant's previous incarceration cured by instruction to disregard).
Appellant did not complain about this reference to his criminal history either at trial or on appeal.
Having balanced the severity of the misconduct, the curative measures taken by the trial court, and the certainty of conviction without the misconduct, we conclude that the trial court did not abuse its discretion in denying appellant's motion for mistrial. See Ramon, 159 S.W.3d at 929.
We overrule issue one.
MOTION TO SUPPRESS
In his second issue, appellant contends that the "trial court abused its discretion in failing to suppress [his] unwarned, in-custody statement to law enforcement." Specifically, appellant argues that his statement was a product of custodial interrogation because he was in jail on an unrelated offense, he was interviewed by men who identified themselves as police officers, and he was informed that he was a suspect in a sexual assault investigation.
Standard of Review
We review a trial court's decision to deny a motion to suppress for an abuse of discretion. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011). "We view the record in the light most favorable to the trial court's conclusion and reverse the judgment only if it is outside the zone of reasonable disagreement." State v. Dixon, 206 S.W.3d. 587, 590 (Tex. Crim. App. 2006). At a hearing on a motion to suppress, the trial court is the sole judge of the credibility of the witnesses and the "weight to be given their testimony." Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). A trial court's determination about whether a suspect is in custody presents a mixed question of law and fact. Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). We therefore "afford almost total deference to a trial judge's 'custody' determination when the questions of historical fact turn on credibility and demeanor." Id. at 526-27. "Conversely, when the questions of historical fact do not turn on credibility and demeanor, we will review a trial judge's 'custody' determination de novo." Id. at 527.
Applicable Law
Police must give warnings required by Miranda and the Texas Code of Criminal Procedure if a suspect is interrogated in custody. Estrada v. State, 313 S.W.3d 274, 293 (Tex. Crim. App. 2010). The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it shows the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda, 384 U.S. at 444. Additionally, article 15.17 mandates an officer to provide the accused with warnings, including his right to retain counsel, right to remain silent, and right to terminate the interview at any time. See TEX. CODE CRIM. PROC. art. 15.17(a). Article 38.22 precludes the use of statements that result from custodial interrogation without compliance with its procedural safeguards. See id. art. 38.22, § 2(a) (providing that no statement made as result of custodial interrogation will be admissible against accused in criminal proceeding unless, among other things, officers administer statutory warnings to accused before accused gives statement).
"The defendant bears the initial burden of proving that a statement was the product of 'custodial interrogation.'" Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). "Custodial interrogation" means questioning initiated by police officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444; Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322-25 (1994) (per curiam)).
In Herrera, several people were involved in a knife fight outside a bar, the car in which Herrera was riding was stopped, and police recovered a knife from the backseat. 241 S.W.3d at 522. Herrera was arrested on an outstanding warrant and transported to the county jail. Id. The next morning, a police investigator went to the jail to talk to Herrera about the knife fight; he did not read Herrera his Miranda or statutory rights and Herrera made incriminating statements. Id. at 522-23. On appeal, Herrera argued that his statement should have been suppressed because he was subject to "custodial interrogation" when questioned in the county jail and that Miranda warnings are required whenever a person incarcerated on one offense is questioned by law enforcement officials about a separate offense. Id. at 527.
The Texas Court of Criminal Appeals disagreed, noting that "incarceration does not always constitute 'custody' for Miranda purposes when an inmate is questioned by law enforcement officials 'regarding an offense separate and distinct from the offense for which he was incarcerated.'" Id. at 531. The court further instructed that "[w]e evaluate 'custody' on an ad hoc basis, after considering all of the (objective) circumstances and apply the 'reasonable person' standard." Id. at 532. Two discrete inquiries are essential to the "custody" determination: (1) what were the circumstances surrounding the interrogation, and (2) would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Id.
After performing the above-referenced analysis, the court concluded that Herrera failed to meet his burden of establishing that he was "in custody," noting that "[b]eyond the purpose of the questioning—to gather information about the fight—the record is devoid of any facts relating to the factors relevant to determining "custody" for purposes of Miranda. Id.
Here, as in Herrera, appellant was being held in the county jail on an unrelated charge and, as in Herrera, the police went to the jail to speak to appellant about a different offense without first providing Miranda or statutory warnings. Regarding the circumstances of the questioning, we note that it took place in an 8 foot by 8 foot interview room with three interior windows; neither of the officers who spoke to appellant were in uniform or were armed; and appellant was not handcuffed. The officers told appellant about the complainant's accusation and asked if he would like to talk to them; appellant responded affirmatively, stating, "Yes, I want to know what's going on." The officer specifically told appellant that "if he wanted to give a statement, then that he could . . . [b]ut if he did not want to give a statement, then he didn't have to." The entire interview lasted less than 13 minutes. Although appellant certainly could not leave the jail, nothing in the record suggests that he was not free to terminate the interrogation and return to his cell.
On this record, the trial court did not err by concluding that appellant was not in custody. Accordingly, we overrule issue two.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Goodman and Farris. Do not publish. TEX. R. APP. P. 47.2(b).