Opinion
Nos. 05-04-01848-CR, 05-04-01849-CR, 05-04-01850-CR
Opinion issued March 28, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd District Court, Dallas County, Texas, Trial Court Cause Nos. F04-26401-Ut; F04-26402-Ut; F04-26403-UT. Affirmed.
Before Justices BRIDGES, FRANCIS, and LANG-MIERS.
OPINION
Hector Enrique Rivas appeals his aggravated robbery conviction in cause number 05-04-01848-CR, his aggravated assault conviction in cause number 05-04-01849-CR, and his escape conviction in cause number 05-04-01850-CR. A jury convicted appellant of each offense and sentenced him to fifty years' confinement in cause number 05-04-01848-CR, twenty years' confinement in cause number 05-04-01849-CR, and ten years' confinement in cause number 05-04-01850-CR. In two issues, appellant argues his convictions for both aggravated assault and aggravated robbery violated the double jeopardy clause of the United States Constitution, and he was deprived of due process because his convictions were based on a written statement that was not voluntarily made. We affirm the trial court's judgments. On May 1, 2004, Milton Ascencio was talking with his friend Juan Carlos Flores in an apartment complex parking lot in Garland. Appellant approached Ascencio, took out a pistol, pointed it at Ascencio, and told Ascencio to raise his hands and "give him everything he had." Appellant took Ascencio's wallet and cell phone and started running. Ascencio and Flores ran after appellant. After Ascencio and Flores chased appellant for "about five minutes," appellant turned, told Ascencio "not to follow him anymore because he was going to kill me," and fired his pistol at Ascencio. Appellant missed and started running again, with Ascencio and Flores in pursuit. As he ran, appellant threw away Ascencio's phone and, later, Ascencio's wallet. A police car arrived in the area and turned into a street ahead of appellant. Ascencio saw appellant throw his gun aside and saw police officers arrest him. At trial, Flores testified he saw appellant get close to Ascencio and pull out what Flores thought was a weapon. Appellant asked Ascencio for his phone and his wallet, and Flores, thinking appellant was robbing Ascencio, ran "to the back of the apartments to whistle for help." When Flores whistled, appellant started running, Ascencio followed, and Flores followed after. Flores did not see appellant fire at Ascencio, but he heard the shot. Realizing he had his cell phone in his pocket, Flores called the police. Flores and Ascencio continued chasing appellant until the police arrived and arrested appellant. Garland police officer Monte Murphy testified he was on patrol when he was dispatched to a gun disturbance call. Murphy saw appellant running, followed by Ascencio and Flores, and Murphy pursued in his patrol car. Murphy parked and pursued appellant on foot. Appellant ignored Murphy's "yelling for him to stop," but Murphy caught appellant, took him down, and handcuffed him. Murphy put appellant in the back of his patrol car. Ascencio and Flores gave Murphy their names. Murphy's supervisor, Lieutenant Steve Dye, arrived on the scene and spoke with Ascencio and Flores in Spanish. After speaking with Ascencio and Flores, Dye recovered a handgun and was directed to another location where he found a spent shell casing. Appellant had complained of being asthmatic, and Murphy had rolled down the rear window of the car about three inches. Murphy and Dye got out of the car to retrieve the shell casing and, when they returned, they found the back door open, and appellant was gone. The police established a perimeter and went to the address appellant had given Murphy. Appellant was not at the address, but they obtained two other addresses, and appellant was found and arrested. In appellant's pocket, police discovered a pair of handcuffs with one of the bracelets sawed in half. Murphy's badge number was stamped on the handcuffs. Appellant was transported to the jail where Dye and another officer met with appellant in an interview room. Appellant had already been given the Miranda warnings twice, but Dye advised appellant a third time of the warnings and asked if appellant wanted to provide a written statement about what had happened. Appellant agreed. Appellant initialed each paragraph of the warnings and wrote a statement in which he admitted asking for Ascencio's wallet and stating he "got scared and took his wallet and cell phone and . . . started running." In the chase that followed, appellant looked back to see if he was still being chased, and "the gun wen [sic] off on me and I almost shot myself or I know I could have hurt someone." A jury convicted appellant of aggravated robbery, aggravated assault, and escape. These appeals followed. In his first issue, appellant argues aggravated assault was a lesser included offense of aggravated robbery, and his convictions for both offenses violated the Double Jeopardy Clause of the United States Constitution. Assuming without deciding that this issue is preserved for our review, we must determine whether the two indictments in this case subjected appellant to jeopardy twice for the same offense. The Double Jeopardy Clause prohibits the State from prosecuting an individual for any lesser offense included within the offense alleged in an indictment since, for the purposes of the Clause, a greater offense and a lesser included offense are "the same offence." See Ex parte Goodman, 152 S.W.3d 67, 71 (Tex.Crim.App. 2004) (quoting Brown v. Ohio, 432 U.S. 161, 168 (1977)). Here, the indictment charging appellant with aggravated robbery alleged he threatened Ascensio with a firearm in the course of committing theft and with intent to obtain and maintain control of Ascencio's wallet and the contents therein. The indictment charging appellant with aggravated assault alleged he threatened Ascensio with imminent bodily injury and used a firearm during the commission of the assault. However, the aggravated assault is not included within the aggravated robbery alleged in the first indictment. See Ex parte Goodman, 152 S.W.3d at 71. Appellant argues the two offenses occurred during the same criminal episode, and the aggravated assault was therefore a lesser included offense of the aggravated robbery. When the same act or transaction violates two different penal statutes, the two offenses are the same for double jeopardy purposes if one of the offenses contains all the elements of the other; they are not the same if each offense has a unique element. Hutchins v. State, 992 S.W.2d 629, 631 (Tex.App.-Austin 1999, pet. ref'd) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). In Texas, an offense is included within another if, among other things, it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981); Hutchins, 992 S.W.2d at 631. Here, the record shows appellant robbed Ascencio at gunpoint and took his wallet and cell phone. After the robbery, Ascencio and Flores chased appellant for "about five minutes," appellant turned, told Ascencio "not to follow him anymore because he was going to kill me," and fired his pistol at Ascencio. Although the two acts were committed in close temporal proximity, appellant's robbery of Ascencio at gunpoint was a separate and distinct act from his later firing his gun at Ascencio and telling him not to follow. See Hutchins, 992 S.W.2d at 633 (appellant's touching of child's genitals, though in close temporal proximity, a separate and distinct act from appellant's penetration of child's female sexual organ with his penis). In this case, each of the acts for which appellant was indicted contained unique elements and required proof of different facts. See Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981); Hutchins, 992 S.W.2d at 631. Namely, the aggravated robbery charge required proof that appellant robbed Ascencio at gunpoint, and the aggravated assault charge required proof that appellant later threatened Ascencio with a firearm. Under these circumstances, we conclude the aggravated assault was not a lesser included offense of aggravated robbery, and his convictions for both offenses did not violate the Double Jeopardy Clause of the United States Constitution. See Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon 1981); Hutchins, 992 S.W.2d at 631. We overrule appellant's first issue. In his second issue, appellant argues he was deprived of due process because his convictions were based on an involuntary confession. Specifically, appellant argues the trial court erred in overruling his motion to suppress his written statement because appellant was coerced into giving his statement and was not aware of his right not to give a statement. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). Here, Dye testified he and another officer met with appellant in an interview room after his arrest. Appellant had already been given the Miranda warnings twice, but Dye advised appellant a third time of the warnings and asked if appellant wanted to provide a written statement about what had happened. Appellant agreed. Each page of the statement contained a statement that appellant had the right to remain silent and not make any statement at all. Appellant initialed each paragraph of the warnings and wrote a statement in which he admitted asking for Ascencio's wallet and stating he "got scared and took his wallet and cell phone and . . . started running." In the chase that followed, appellant looked back to see if he was still being chased, and "the gun wen [sic] off on me and I almost shot myself or I know I could have hurt someone." Appellant testified police officers "kept on hitting me, kneeing me, elbowing me," and thereby coerced him into writing his statement. Appellant further testified he did not know he did not have to give a statement. Having reviewed the record, we conclude the trial judge was free to believe appellant received his Miranda warnings multiple times orally and in writing, knew he was free not to make a statement, and voluntarily made his statement to police. See Ross, 32 S.W.3d at 855. In reaching its decision on appellant's motion to suppress, the trial court was free to disbelieve appellant's testimony that he did not know of his right to refuse to make a statement and that he was physically coerced into making a statement. See id. Accordingly, the trial court did not abuse its discretion in overruling appellant's motion to suppress. See Guardiola, 20 S.W.3d at 223. We overrule appellant's second issue. We affirm the trial court's judgments.