Opinion
No. 05-08-01076-CR
Opinion issued July 10, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-00180-T.
Before Justices FITZGERALD, LANG, and LAGARDE.
OPINION
Tony Wayne Swinnie was convicted of aggravated robbery and sentenced to life in prison. In five issues, he complains about an alleged Brady violation, double jeopardy, denial of his motion for mistrial, admission of a surveillance video from the night of the robbery, and denial of a motion to suppress appellant's recorded statement. We affirm the trial court's judgment.
See Brady v. Maryland, 373 U.S. 83, 87 (1963).
Background
On the night of July 24, 2006, Wayne Moore, a retired teacher and athletic coach, stopped at a McDonald's in Grand Prairie, Texas, on his way home from a Texas Rangers baseball game, where he had been working as a part-time usher. It was close to closing time and Moore was the only customer inside the McDonald's. As he looked over the menu and waited for an employee to take his order, Moore noticed appellant walk into the McDonald's and stand at the counter next to him. The surveillance video from the McDonald's shows that as soon as an employee walked up to the counter to take their orders, appellant struck Moore in the head, knocking him unconscious and causing him to fall to the ground. Appellant then quickly rifled Moore's pockets and fled the restaurant. In a videotaped statement to the Grand Prairie police, appellant admitted committing the robbery and stated he was the person seen on the McDonald's surveillance video. Appellant pleaded not guilty to, and was convicted of, aggravated robbery of a person over the age of sixty-five. On June 27, 2008, the jury found the two enhancement paragraphs true and sentenced appellant to life imprisonment. The court ordered that this sentence not commence until appellant was discharged from an aggravated robbery sentence imposed on March 21, 2007, cause number 2006-1391-CI, in the 19th judicial district court of McLennan County, Texas.Discussion
Brady In his first issue, appellant claims the trial court abused its discretion by failing to declare a mistrial when confronted with a Brady violation, that is, after the State disclosed that one of its witnesses picked a man other than appellant out of a photographic lineup.Background
During direct testimony, Rosalina Espino, the McDonald's employee who witnessed the aggravated robbery, was asked by the prosecutor if, prior to trial, she had been shown a photographic lineup. Espino replied that she was shown a photographic lineup and selected a person other than appellant as the robber. The trial court then excused the jury and held a hearing concerning the photographic lineup. During that hearing, Espino was shown copies of the lineup and said she had picked someone other than appellant out of the lineup. The detective told her, "Well, that's not the actual person. That's not him." She was told to look again at the lineup "and try to pick him out." Espino could not remember whether she had talked to the prosecutor about the photographic lineup. Joe Wood, a detective with the Grand Prairie Police Department, testified he showed the photographic lineup to Espino and that neither she nor the other witness could pick appellant out of the lineup. Wood could not remember whether Espino selected someone other than appellant as the robber. He testified he never told witnesses they did not select the correct person and it was not his "normal practice to tell somebody that they picked the wrong person." Wood also testified that if someone selected the wrong person, he did not document the misidentification. Defense counsel noted the trial court granted his request for Brady material. He also argued he had not been shown the misidentification evidence, which he claimed was exculpatory. Defense counsel argued he needed time to investigate the original photographic lineup and identify the person or persons who were actually identified by Espino. Shortly thereafter, Espino was recalled to the stand and shown another copy of the lineup. She said she could not recall who she had previously identified. The trial court then made the following findings:[I]t is more likely that Ms. Espino did pick the wrong person and that that was not recorded by the police, as she does have independent recollection and she has probably only been subject to this lineup, and the officer does not recall and has probably performed many lineups.
The Court also notes that this lineup was poorly performed. The Court believes that misidentification may have occurred, that this information was not recorded, not provided to the district attorney's office. That if there was any violation of Brady, it started and ended with this detective's activity.
However, I do not believe that a continuance is warranted at this time because there is no way to know who was picked out of the lineup and, therefore, your request is denied.Appellant later moved for a mistrial on the basis of the Brady violation. The trial court denied the request. The trial resumed. During a subsequent break in the proceedings, the trial court ordered the prosecutor "to use all due diligence to discover the identity of the five people in the lineup and to provide that information to the defense as soon as possible. At this time, with the information I have, I find that this violation is not material." The court also stated:
I am holding that the fact that she picked out the wrong person in this case, where a lineup was not the basis of the development of [appellant], where he was — the evidence, at this time my understanding, will be the video and the confession, and I'm holding that the misidentification at this time is not material.
However, should you develop evidence and wish to present it to the Court within the time lines of the rules of appellate procedure in the form of a motion for new trial or if you should be able to develop it before the end of this trial, I will grant you an opportunity to create a record and establish any materiality at that time.
Standard of Review
An appellate court reviewing a trial court's ruling on a motion for mistrial must utilize an abuse of discretion standard of review, Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999), and must uphold the trial court's ruling if that ruling was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (op. on reh'g); Wead v. State, 129 S.W.3d 126, 128 (Tex.Crim.App. 2004).Law
Under Brady, an appellant shows reversible error if (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to him; and (3) the evidence is material, that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Brady v. Maryland, 373 U.S. 83, 87 (1963); Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App. 2002). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. U.S. v. Bagley, 473 U.S. 667, 682 (1985). The mere probability that undisclosed evidence may have helped the defense or affected the trial's outcome does not establish materiality in the constitutional sense. Hampton, 86 S.W.3d at 612. Further, whether the evidence is material should be viewed in the context of the overall strength of the State's case. Id. at 613.Application
In this case, appellant's identity as the robber was not in dispute. The surveillance video of the robbery was shown to the jury and appellant's videotaped confession, which was also shown to the jury, admitted that he was the man in the video. As such, we cannot conclude that, had the State disclosed, prior to trial, the fact that Espino identified someone other than appellant in a pretrial photographic lineup, a "reasonable probability" existed that the outcome of the trial would have been different. Bagley, 473 U.S. at 682. Moreover, the trial court told appellant that if he discovered evidence that would make the photographic lineup material to his case, he could present that evidence to the court. Yet appellant did not make any subsequent offers of evidence regarding the materiality of the lineup to this case. We also note appellant was able to present evidence to the jury via cross-examination of Espino that she had, in fact, identified someone other than appellant in a pretrial photographic lineup. We conclude appellant presents nothing more than the mere probability that the undisclosed evidence may have helped the defense or affected the trial's outcome, and this alone does not establish materiality in the constitutional sense. Hampton, 86 S.W.3d at 612. Accordingly, the trial court did not abuse its discretion. We resolve appellant's first issue against him. Double Jeopardy In his second issue, appellant claims the trial court erred by denying his plea in bar asserting his prosecution was barred on double jeopardy grounds.Background
Several months before trial, appellant's trial counsel filed a plea in bar arguing he was subjected to double jeopardy when this offense was prosecuted because the trial court in McLennan County heard evidence regarding the then-unadjudicated instant offense and considered it in assessing a life sentence. A hearing on appellant's plea in bar was held on June 23, 2008. During the hearing, Marshall McCallum, a Dallas County assistant district attorney (ADA) assigned to the trial court, testified that in March 2007 he became aware the McLennan County District Attorney (DA) was prosecuting a case against appellant and they would "try their case first." McCallum "assumed," but did not know, that the McLennan County DA would "probably" offer evidence regarding the instant case. McCallum did not send any information to the McLennan County D.A. but told Grand Prairie detectives "that they would be getting contacted from the district attorney's office in Waco and, if they requested the information on our cases, to go ahead and send or forward on the police reports that they had." McCallum assumed the forwarded information would include a copy of the videotape or DVD containing the surveillance camera footage of the robbery, along with the police reports. He also assumed the McLennan County DA would present the instant case during the punishment portion of the trial, although he did not tell them to do this. McCallum insisted there was no agreement with the McLennan County D.A. and that he had no intention of dismissing the instant case based on the result in the Waco case. He could not remember whether Dallas County had a "hold" on appellant when he was convicted in McLennan County, but he assumed there was a hold. McCallum also said he would be surprised to learn that appellant "was bench warranted from TDC" to Dallas County to stand trial for the instant case.Law
In making his double jeopardy argument, appellant relies (both at trial and on appeal) on section 12.45 of the Texas Penal Code, which provides:(a) A person may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty.
(b) Before a court may take into account an admitted offense over which exclusive venue lies in another county or district, the court must obtain permission from the prosecuting attorney with jurisdiction over the offense.
(c) If a court lawfully takes into account an admitted offense, prosecution is barred for that offense.Tex. Pen. Code Ann. § 12.45 (Vernon 2003). Section 12.45(a) specifically requires an admission of guilt from an accused for any unadjudicated offense to be considered for sentencing under its provisions. Escobedo v. State, 643 S.W.2d 243, 246 (Tex.App.-Austin 1992, no pet.). Although a defendant is not required to plead guilty to the unadjudicated offense, the evidence must otherwise indicate an admission of guilt. See Zapata v. State, 905 S.W.2d 15, 16 (Tex.App.-Corpus Christi 1995, no pet.). Furthermore, section 12.45(b) requires the sentencing court to have permission from the prosecutor with jurisdiction over the unadjudicated offense; it does not permit reliance upon the oral representations of defendant's counsel or the prosecutor of the court's own jurisdiction. Escobedo, 643 S.W.2d at 246. Although section 12.45 does not require the judgment to reflect the trial court's consideration of the unadjudicated offense or the prosecutor's permission, it is the better practice to include this information in written form. See, e.g., Whalon v. State, 725 S.W.2d 181, 194-95 n. 3 (Tex.Crim.App. 1986) (op. on reh'g); Escobedo, 643 S.W.2d at 246.
Application
Appellant claims the record here shows that the prosecuting attorney with jurisdiction over the unadjudicated offense — the Dallas County D.A.'s Office — gave implied "de facto permission" under section 12.45 because McCallum told an "agent" of the Dallas D.A.'s Office, the Grand Prairie Police Department, to send the McLennan County D.A.'s Office whatever information it requested, and McCallum assumed this information "would include a copy of the DVD along with the police reports." Appellant admitted, during the punishment hearing in the McLennan County trial court, that he robbed Wayne Moore at a Grand Prairie McDonald's. However, the record does not show that the court in McLennan County obtained permission from the Dallas County D.A. to take into account the underlying offense. Although the record shows that McCallum told Grand Prairie police to forward certain information regarding the underlying offense to the McLennan County D.A.'s Office, this has no bearing on whether prosecution in this case was barred by section 12.45. Section 12.45 requires that the trial court, not a prosecuting attorney, obtain permission from the prosecuting attorney with jurisdiction over the offense. See Tex. Pen. Code Ann. § 12.45(b). That was not done here. We also reject appellant's contention that the plea in bar should have been granted because the Dallas County D.A.'s Office did not intend to prosecute appellant in that it "did not have an active warrant or hold upon Appellant to ensure that he would be transferred to Dallas County immediately after the McLennan County case was disposed of." Such fact has no bearing on whether the McLennan County trial court obtained permission from the Dallas County D.A.'s Office to consider the instant offense in setting punishment. Moreover, the issue here is quite different from the situation in Zapata v. State, cited by appellant, where the court found that a request from appellant for the trial court to consider a tax case in assessing punishment for a possession offense could be implied. See Zapata, 905 S.W.2d at 17. The Zapata court noted that appellant did not object to the admission of his confession or to the admission of the stipulated evidence in the tax case and did not object when the trial court asked the prosecutor's permission to "12.45" the tax offense. Id. Additionally, appellant did not object when, upon pronouncing sentence, the trial court "stated that it had `12.45ed' the tax offense." Id. In the present case, on the other hand, there is no indication the McLennan County trial court obtained permission from the prosecuting attorney with jurisdiction over the instant offense to "12.45" that offense. Accordingly, appellant fails to show that section 12.45 bars prosecution in Dallas County for the underlying offense. See Tex. Pen. Code Ann. § 12.45; Escobedo, 643 S.W.2d at 246-47. We resolve appellant's second issue against him. Mistrial In his third issue, appellant argues the trial court abused its discretion by denying his motion for mistrial after the State elicited testimony the surveillance video of the offense was posted on the internet.Background
During the direct examination of the victim, the prosecutor asked him whether it was true that a "videotape" had been made of the robbery. The victim answered, "Yes." He also testified that he had first seen the videotape shortly after the incident and that he had seen it "[m]aybe twelve, fifteen times" over a two-year period. The prosecutor then asked the victim whether it was true that the video of the robbery was "on the internet." The victim replied, "Yes, it is." Defense counsel then objected on the grounds of relevance. The trial court sustained the objection and, at defense counsel's request, instructed the jury to disregard the witness's answer. Defense counsel also asked the court to instruct the jurors "that they are not [to] go to the internet and try to look at this video." The trial court reminded jurors of the instructions it had given them the day before. Later, during the direct examination of Espino, the prosecutor asked her if she knew whether the "McDonald's that night had a security surveillance camera?" The witness answered, "Yes, they did." She also testified that there was a "videotape" of the incident. After Espino admitted she had seen "the recording that the camera made," the prosecutor then asked the witness about the first time she saw the surveillance camera footage. Espino answered, "On Most Shocking on CNN." Defense counsel objected that this question was irrelevant, that its prejudicial effect outweighed its probative value, and "that the State continues to ask questions to the witnesses to try to entice people to look at this on the Internet." The trial court sustained appellant's objections, instructed the jury to disregard the witness's statement, and reminded the jurors of its previous instruction "not to look at this on the Internet." The court also instructed the State to refrain from asking similar questions. Defense counsel then moved for a mistrial, arguing the prejudice elicited by the questions could not be cured by the instructions. The trial court denied the motion.Standard of Review
A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Ladd, 3 S.W.3d at 567. A trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Id. An instruction to disregard attempts to cure any harm or prejudice resulting from events that have already occurred. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004) (en banc). Where the prejudice is curable, an instruction eliminates the need for a mistrial, thus conserving the resources associated with starting trial proceedings anew. Id. Whether a given error necessitates a mistrial must be determined by examining the particular facts of the case. Ladd, 3 S.W.3d at 567. We review the trial court's denial of a mistrial under an abuse of discretion standard. Id.Application
The trial court instructed the jury to disregard the witness statements that the video was posted on the internet and shown on television, and we presume the jury complied with the trial court's instructions to disregard. See Wesbrook v. State, 29 S.W.3d 103, 116 (Tex.Crim.App. 2000); Brown v. State, 92 S.W.3d 655, 662 (Tex.App.-Dallas 2002), aff'd, 122 S.W.3d 794 (Tex.Crim.App. 2003). Appellant acknowledges that instructions to disregard "are normally deemed sufficient to cure any impropriety." But he claims the twice-given instruction to disregard "only served to emphasize the forbidden testimony." This argument, however, does not persuade us that the prejudice from the testimony in question was so great that a mistrial was warranted. In each instance, the trial court instructed the jury, at defense counsel's request, to disregard the complained-of testimony. The court also reminded the jury of its previous cautionary instructions that told jurors, among other things, not "to get on the Internet and look anything up." The court's instructions were prompt, thorough, and were given before the witnesses could testify further. Reviewing the record, we cannot say the trial court abused its discretion in denying appellant's motion for mistrial. We resolve appellant's third issue against him. Surveillance Video In his fourth issue, appellant claims the trial court abused its discretion by admitting State's exhibit one, the surveillance video, because it was not properly authenticated under rule 901 of the Texas Rules of Evidence.Background
During a hearing held out of the jury's presence, Randall Fincher, a Dallas police officer who was dispatched to the McDonald's immediately after the robbery, testified State's exhibit one was a "disk" that contained a surveillance video recording of the instant offense. Fincher testified that, on the night of the robbery, the manager of the McDonald's showed him its surveillance system. Fincher said the images on the State's disk were "exactly what I saw on the monitor when they took me back there." Later, as the disk was being played for the court, the court ordered the playback paused. The relevant portion of the record reads as follows:THE COURT: Okay. Pause. You see how it changed perspective?
[FINCHER]: Right.
THE COURT: When you were viewing it on the screen, did it change perspective like that?
[FINCHER]: That's exactly what I saw.
THE COURT: Exactly what you saw. It actually changed perspective from the camera, the whole picture to him?
[FINCHER]: Correct.
THE COURT: Okay. Go ahead.A few moments later, the court again ordered the playback paused. The court asked Fincher, "So, again it changes perspectives, and that was already — that editing was already on the system when you saw it?" The witness responded, "Yes, sir, that's exactly what I saw." Don Owens was a technician with Genosec Security, the company that provided the "security surveillance" for the Grand Prairie McDonald's on July 24, 2006. He testified that, at the time in question, the restaurant was equipped with a "Security Guize 1000" security system that "runs sixteen cameras." The images are stored on a hard drive and can be reviewed and copied on to a disk. As State's exhibit one was played, the court asked Owens, "If you were looking at the video that night, would you have been able to see a sequence of events like this on one monitor where it switched from one camera to another?" Owens replied, "Not on the same view like that." The conversation continued as follows:
THE COURT: So, how would you achieve this effect where on the same view you switch from one perspective to the other?
[OWENS]: Sometimes the stores, when they hand the footage over to authorities, say police, there may be three or four different cameras on one CD, say like a ten minute increment of four different cameras. And unless they can go in and put those together — I don't know if the police department has that capability or not. I mean, it's nothing you can do on the DVR system at the site.
THE COURT: So, would it have been possible that night, without taking the data out of the DVR system, for someone to have viewed that sequence of events on one monitor?
[OWENS]: Say that again, now.
THE COURT: The night of the offense, if someone testifies they saw exactly that, they saw on one monitor first the perspective of the door in the dining area followed by a switch to the perspective of the counter, could that have been achieved the night that those were recorded without taking that data out of the DVR system and manipulating it in some way?
[OWENS]: I don't believe so. The only way you can see on the system at the site would be an individual camera here, an individual camera there, or one full screen shot of one individual camera.Later, before the jury, Espino testified the prosecutor had shown her State's exhibit one. Espino agreed that State's exhibit one was a "fair and accurate representation" of what occurred at the Grand Prairie McDonald's on July 24, 2006. Appellant objected "to the form of the question because we know from a previous hearing that there were two different versions, and it's not specific as to what version she is talking about, if she is trying to establish relevancy and foundation." The trial court overruled the objection. Espino again testified that State's exhibit one was a fair and accurate description of the events in question. Appellant briefly examined Espino, and Espino stated she had seen "[o]nly one" version of the surveillance video. The trial court overruled appellant's objection, admitted the exhibit, and granted permission to publish it. Before publishing the exhibit, the trial court asked appellant if he had any additional objections. Appellant objected that he "didn't know what version is on the videotape . . . [and] no proper foundation has been laid to show the changing aspects or views of the DVD cameras." Appellant also objected that "since this witness . . . has testified that she cannot identify the defendant in this court, that admitting this into evidence at this point with this witness, the proper foundation has not been laid." The trial court overruled these objections. Appellant then objected "under relevance . . . that the prejudicial effect outweighs the probative value based on the fact that she can't ID that it's [appellant] and no other person." After retiring the jury, the trial court made the following finding:
The Court finds that this videotape does have probative value even though Ms. Espino cannot identify [appellant]. At this time there is evidence that he has admitted to committing this offense on the date, at the location, and in the manner described on the videotape. And, therefore, the videotape's probative value shows the actual offense, the conduct, and outweighs any prejudicial value.After ruling that appellant could develop this issue "in front of the jury for purposes of determining the probative value of the videotape," the court noted it would allow Espino to sponsor State's exhibit one "as a fair and accurate visual representation of events that she witnessed."