Opinion
No. 05-09-00250-CR
Opinion Filed April 1, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F-0756876-L.
Before Justices O'NEILL, LANG, and MYERS.
OPINION
Anthony Rodriguez appeals his conviction for capital murder. The trial court sentenced appellant to life imprisonment. In six issues, appellant contends generally that the trial court erred in: (1) failing to file findings of fact and conclusions of law regarding the denial of his motion to suppress; (2) denying his motion to suppress; (3) denying his motion for mistrial after a State's witness informed the jury that appellant had been previously incarcerated; and (4) permitting identification testimony. We overrule appellant's issues and affirm the trial court's judgment.
Background
In the early morning hours of August 17, 2007, Abraham Roman got off work and went to a taco stand to buy some tacos. He was driving his old vehicle with 22-inch chrome rims. Appellant and his brother, Humberto Rodriguez, were standing across the street. Appellant told Humberto that he wanted that car. Appellant had a gun. As Roman was exiting the taco stand, appellant grabbed onto the car door and fired shots into the car. Judy Jasso, an employee at the taco stand, witnessed these events. Appellant then pulled Roman out of the car and drove off with Roman's car. Roman was pronounced dead at the scene. Roman's burnt car was found not far from the house where appellant had been living. The rims had been removed. Appellant told Humberto that he shot Roman when he refused to give him the car. Jasso identified appellant's photograph from a lineup. Dallas Police Detective Colleen Shinn had appellant picked up on some outstanding tickets. After reading appellant his Miranda rights two times, appellant proceeded to confess to the crime. Appellant sought to suppress the statement but the trial court denied the motion. A jury found appellant guilty of capital murder. This appeal timely followed.Motion to Suppress
In his first issue, appellant contends the trial court erred in failing to file written findings of fact and conclusions of law after denying his motion to suppress his videotaped statement. We conclude the trial court was required by article 38.22, section 6, to enter findings of fact and conclusions of law regarding the voluntariness of appellant's videotaped statement. Tex. Code Crim. Proc. Ann. art. 38.22 § 6 (Vernon 2005). We abated the appeal and ordered the trial court to file a supplemental clerk's record with those findings and conclusions. The trial court filed a supplemental clerk's record containing its findings of fact and conclusions of law. Accordingly, we need not review appellant's first issue on appeal to the extent he claims the trial court erred when it failed to make written findings of fact and conclusions of law as required by article 38.22, section 6. In his second and third issues, appellant contends the trial court abused its discretion in denying his motion to suppress his videotaped statement because he did not waive his constitutional and statutory rights. In his fourth issue, appellant contends the trial court erred in denying his motion to suppress because his statements were not voluntary. A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. St. George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. Id; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). An appellate court reviews the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. St. George, 237 S.W.3d at 725. We review the evidence in the light most favorable to the trial court's ruling. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App. 2008). When, as here, the trial court makes explicit fact findings, we determine whether the evidence, viewed in the light most favorable to the ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. Delao v. State, 235 S.W.3d 235, 239 (Tex.Crim.App. 2007). In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the United States Supreme Court held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from a custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination provided under the U.S. Constitution. The holding of Miranda is codified in article 38.22 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.22; Jones v. State, 944 S.W.2d 642, 650 n. 11 (Tex.Crim.App. 1996). A defendant's oral statement may not be used in evidence against him unless, on an electronic recording, the defendant is informed of certain rights and chooses to waive those rights. Tex. Code Crim. Proc. Ann. art. 38.22 § 3. Section 3(a) of article 38.22 provides that no oral statement made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless, among other things, prior to giving the statement, the accused received the statutory warnings of section 2(a) of article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22 §§ 2-3. Those statutory warnings include: (1) that he has the right to remain silent and any statement he makes may be used against him at trial; (2) that any statement he makes may be used as evidence against him in court; (3) that he has the right to have a lawyer present to advise him during any questioning; (4) that if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) that he has the right to terminate the interview at any time. Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a). Once a suspect indicates at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008). However, a suspect must unambiguously invoke his rights, otherwise an interrogating officer does not have to stop the questioning. Id. When a suspect's invocation of his rights is ambiguous, an interrogating officer is permitted to either continue questioning regarding the offense or clarify whether the suspect wishes to waive or invoke his rights. Marshall v. State, 210 S.W.3d 618, 628 (Tex.Crim.App. 2006). Appellant contends the record fails to show that he waived his rights. The trial court reviewed the videotaped statement, conducted a pretrial hearing on appellant's motion to suppress his statement and denied the motion. Pursuant to article 38.22, section 6, of the Texas Code of Criminal Procedure, the trial court signed a written order stating its findings of fact to support its conclusion that appellant's statement was voluntary. Those findings were, in part, that: (1) prior to the interview, Detective Shinn orally advised appellant of his rights under Miranda by reading them to him two times; (2) appellant said he understood his rights; (3) appellant's statement "I don't want to waive my right, but I'll talk to you." both by the language used and the totality of the circumstances was not a clear and unambiguous assertion of either his right to silence or an attorney; (4) Detective Shinn assured appellant several times that he had the right to terminate the interview at anytime; (5) appellant chose to answer Detective Shinn's questions and never made any assertion that he wanted to stop the interview; and (6) the videotaped interrogation did not reflect evidence that appellant's will was overborne or critically impaired because of coercive conduct on Detective Shinn's part. No witnesses testified at the suppression hearing. Appellant told Detective Shinn that he had a ninth grade education and that he could not read or write. Detective Shinn read appellant his Miranda rights two times. She asked appellant whether he understood his rights and he said he did. When appellant asked Detective Shinn what the term "waive" meant, she replied that it meant that he had the right to terminate the interview at anytime. Appellant told Detective Shinn, "I don't want to waive any rights, but I'll talk to you." The interview continued for several hours. During this time, appellant took several bathroom breaks, had snacks, and made several phone calls using a cell phone provided by Detective Shinn. Appellant repeatedly denied any involvement in the murder. Detective Shinn then left and interviewed appellant's brother, Humberto Rodriguez. Humberto told Detective Shinn that appellant committed the murder. Detective Shinn then returned to the interview room where appellant had been waiting. She played Humberto's recorded statement. Appellant then confessed to the crime. Appellant's statement "I don't want to waive any rights, but I'll talk to you." was ambiguous. He stated both that he did not want to waive any rights but that he would also talk with Detective Shinn. Under the law, however, Detective Shinn had no obligation to seek clarification from appellant and was permitted to continue the questioning. See Marshall, 210 S.W.3d at 628. Appellant relies on State v. Gobert, 275 S.W.3d 888 (Tex. Crim. App. 2009). In Gobert, the defendant stated "I don't want to give up any right though, if I don't got no lawyer." Gobert, 275 S.W.3d at 889-90. The court of criminal appeals determined that the defendant made an unambiguous request for a lawyer. The court found the defendant's statement "to be an indirect expression of a possible willingness to waive, inter alia, his right to silence, but only on the unqualified condition that he first be afforded his right to have counsel present." Id. at 893. The court noted that a conditional statement is not necessarily an ambiguous statement. Id. The court held that the defendant's statement was sufficient to alert the interrogating officers that if they desired to speak with him further, in an attempt to persuade him to waive any other rights, they had to first provide him the right to have counsel present during that attempt. Id. at 894. Gobert is distinguishable from the facts of this case. The defendant in Gobert never stated that he would talk to the detective. Appellant did. Unlike the statement in Gobert, appellant's statement was ambiguous. Moreover, appellant placed no condition on his speaking with Detective Shinn. After reviewing the record and the videotape, in accordance with the applicable standard, we conclude the trial court did not abuse its discretion in denying appellant's motion to suppress because the evidence supports the trial court's factual rendition that he did not waive his rights to silence or to an attorney. We overrule appellant's second and third issues. We turn now to appellant's fourth issue by which he asserts his statement was not voluntary. A confession may be involuntary under the due process clause only where there is police overreaching. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). The voluntariness of a subsequent statement is determined from the totality of the circumstances. Griffin v. State, 765 S.W.2d 422, 430-31 (Tex.Crim.App. 1989). Some of the relevant circumstances include the length of detention and interrogation, whether the defendant was permitted access to his family or an attorney, and the presence or absence of physical brutality. Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App. 1985), overruled on other grounds by Mosely v. State, 983 S.W.2d 249, 264 (Tex. Crim. App. 1998). Appellant contends his statements were the result of police tactics that overbore his free will. He contends that he was held for almost eight hours. Detective Shinn consistently told appellant that she "knew things" and that she did not believe that he knew nothing about the offense. Appellant also contends that Detective Shinn invaded his personal space during the interview. He contends that Detective Shinn played on his sympathies by speaking of his mother, the victim's family, and his girlfriend with heart problems. We have reviewed the videotape. During the lengthy interview, appellant was allowed several bathroom breaks. He was given snacks. Detective Shinn allowed him to make several phone calls and provided him with a cell phone to make those calls. Detective Shinn's interviewing techniques were neither coercive or oppressive. We conclude the circumstances in which appellant was questioned were not oppressive and that Detective Shinn's interviewing tactics did not overcome his free will. Accordingly, we overrule appellant's fourth issue.Motion for Mistrial
In his fifth issue, appellant contends the trial court abused its discretion in denying his motion for mistrial when his brother, Humberto, testifying for the State, mentioned that appellant had previously been incarcerated. We review a trial court's ruling on a motion for mistrial for an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Humberto testified as follows:[Prosecutor]: Are you and Anthony close to each other?
[Humberto]: Yeah. We a little close sometimes. After he got out of the penitentiary, I been close to him really good. Be around, you know. After he got his wife and stuff —
[Prosecutor]: Let me stop you there for a second. Can we approach the bench, Judge.Outside the presence of the jury, defense counsel moved for a mistrial. The trial court determined the error was curable by an instruction to disregard. To avoid drawing attention to the error, defense counsel rejected the offer of an immediate instruction to disregard. Rather, the charge included the following instruction:
You are instructed that if there is any testimony before you in this case regarding the defendant having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose.We presume the jury obeyed the trial court's instruction to disregard improper evidence. Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988). Appellant's counsel declined the trial court's offer of an immediate instruction to disregard the statement. Under these circumstances, we conclude the trial court did not abuse its discretion in denying the motion for mistrial. Moreover, any error would be harmless. The same evidence was introduced through appellant's own videotaped statement. The videotape was played for the jury. On it, appellant stated: "[s]ince I got out of jail on those lugnuts." Because appellant's own statement was admitted, we conclude the trial court did not err in denying his motion for mistrial based on Humberto's statement attesting to the same fact. We overrule appellant's fifth issue.