No. 01-05-01042-CR
Opinion issued February 15, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 232nd District Court Harris County, Texas. Trial Court Cause No. 997502.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
TERRY JENNINGS, Justice.
A jury found appellant, Marvin Castenano, guilty of the offense of aggravated robbery, and the trial court assessed his punishment at confinement for eight years. In three issues, appellant contends that the evidence is factually insufficient to support his conviction, the trial court erred in admitting into evidence appellant's pre-trial statement, and his trial counsel rendered ineffective assistance of counsel. We affirm.
Factual and Procedural Background
Daniel Gutierrez, the complainant, with the assistance of a Spanish translator, testified that on August 15, 2004, he, Jose Uribe, and Miguel Saavedera left a party "[s]omewhere after 2:00 in the morning" in the complainant's car. The complainant drove Uribe, who was in the front-passenger seat, and Saavedera, who was in the back seat, to an apartment complex. The complainant parked the car, and two men "came up crouching on either side of the vehicle and then they both got up at the same time." One of the two men, wearing a black t-shirt, "had the revolver and was pointing at [the complainant]" on the driver's side of the car. The other man was at the front-seat passenger's window. The man with the revolver told the complainant "[t]o get off the vehicle or off the car and to hand over all of [the complainant's] belongings." He "put [the gun] on the back of [the complainant's] neck," and "was very aggressive and he was saying that if [the complainant] moved or stood up he could shoot [the complainant] or he could shoot at the others." When the complainant got out of his car, one of the men threw the complainant to the ground and removed what the complainant had in his pockets, taking the complainant's keys and "some quarters." The complainant feared for his life. The two men then pulled the other two passengers out of the car and took the wallet of one of the passengers. The man on the passenger's side "was telling [the complainant] not to move [be]cause if they did he would shoot because you could tell he had something underneath the shirt." The complainant described the two men: one being "thin, somewhere around 5 foot 6," wearing "a black shirt and black pants," and the other as "almost the same size but heavy," wearing a t-shirt. A "[s]mall Toyota" truck pulled up behind the complainant's car, and the two men who had just robbed the complainant and his passengers got into the truck. As the truck left, the complainant saw a total of three men inside the truck. The complainant further testified that he and his passengers then called for emergency assistance, providing "a description of the people that were in the vehicle and the color and the make of the vehicle." A police officer arrived after "[a]bout 15 minutes," and both the complainant and Uribe spoke with the officer entirely in English. Although the complainant "speak[s] very little" English and Uribe does not speak very much English, they "were able to understand what [the officer] was asking." About one-half of an hour after the robbery, the officer took the complainant and Uribe to a location "[a]bout ten miles" away "to identify some people that they had arrested." Out of the three men that the police had detained, the complainant identified two men as being involved in the robbery, and he was positive in his identification with regard to "[t]he one that had the revolver." After identifying the men, another police officer took the complainant and Uribe "to the closest police station." The officer put the three men "before [them] but this time it was closer and through a glass." At the police station, the complainant "was sure about" the two men that robbed him. In court, however, he was not as sure because it had "been a year since" the robbery. During his testimony, although the complainant identified appellant as "one of two people that robbed [him]," he was not able to say whether appellant was the man with the revolver. Jose Alfredo Uribe, with the assistance of a Spanish translator, testified that when he got out of the car, he handed his wallet, which contained "[c]lose to two-thousand five-hundred dollars," over to the man on his side of the car. After the robbery, when the police officer took Uribe and the complainant to identify the detained suspects, Uribe, from inside the patrol car, identified three men as being involved in the robbery. Uribe identified the person who had the gun, noted that he was wearing a black shirt, and he was sure, at that time, that the three individuals that the police officers had detained were those involved in the robbery. Later, at the police station, the police officer returned Uribe's wallet and money to him. Houston Police Department ("HPD") Officer J. Lopez, Jr., testified that on August 15, 2004, at around 3:20 a.m., he and his partner, Officer Benables, responded to a dispatch for the aggravated robbery. On their way to the apartment complex, the officers received information over their police radio that the suspects, three Hispanic men, were driving away in a "black Toyota truck." Approximately one minute later, Benables "noticed a black truck" traveling in the opposite direction with its tail lights out. At that point, Lopez and Benables, who "were about two or three miles away" from the robbery location, stopped the truck because its tail lights did not work. Lopez "approached the driver and looked over into the back seat as best [he] could to the vantage point [he] had and asked the driver to look back to [him] for his license and insurance." Lopez got the driver's license, "ran the license plate on the computer system," and then decided to remove the three men from inside the truck and identify them. Lopez noted that the men matched the description of the robbery suspects given over their police radio. Officer Lopez further testified that they first removed the front-seat passenger from the truck. As Officer Benables watched the other two suspects, Lopez "did a quick pat down search for any weapons" of the front-seat passenger. Lopez "walked him back to the police car [and] put him in the back of the car." Lopez then removed the back-seat passenger. When Lopez pulled him out, he noticed something underneath the back seat and told Benables that he thought there was a gun underneath the back seat. Lopez "went around the front and got the driver out as fast as [he] could and handcuff[ed] him and put him in the back and [Benables] recovered the handgun." The officers recovered five bullets from the .357 caliber handgun. In court, Lopez identified appellant as the back-seat passenger. Lopez also identified the driver as Emilo Maldonado and the front-seat passenger as Alvin Ortega. After confiscating the wallets of the three men and searching their pockets, the officers discovered that appellant "had $900.00," Emilo Maldonado "had $720.00," and Alvin Ortega "had $875.00," for a total amount of $2,495.00. HPD Officer A. Mejia testified that on August 15, 2004, he conducted a videotaped interview of appellant. Mejia explained that he "primarily deal[s] with Spanish speaking complainants and/or suspects." Appellant was not handcuffed during the interview and indicated to Mejia that the language he felt most comfortable speaking was Spanish. Mejia, fluent in Spanish, conducted the interview in Spanish. Mejia stated that appellant did not seem intoxicated or under the influence of any narcotics, did not appear to be sleepy, and initially "was smiling and almost in a very relaxed joking type of mood," "smiling and laughing." In addition to Mejia, Officer D. Garcia was present for the interview, which lasted approximately fifteen minutes. In Mejia's presence, Garcia read appellant his legal rights "verbatim" "[f]rom the blue card that is issued to [the officers] by the District Attorneys Office." Mejia explained that the blue card has the legal rights in both English and Spanish, and appellant was read his rights in Spanish. After each right was read to appellant, Garcia asked appellant whether he understood that right. The "[f]irst right was he had the right to remain silent and any statement he [made] may be used against him in a court of law." Appellant had a question in regard to that right, and Mejia and Garcia then explained what the right meant, and then "[i]t was read to him again." After the second reading, the officers asked appellant once again if he had any questions, and appellant "indicated he understood his rights" and had no further questions. Garcia read the remainder of appellant's rights to him one at a time and asked appellant whether he understood each right after that right was read to him, and appellant indicated that he had no further questions. At no time did appellant ask to terminate the interview. Mejia explained that neither he nor Garcia threatened appellant in any way, told appellant that if he gave a statement he would receive a lesser punishment, or made any promises regarding appellant's statement. During Mejia's testimony, the State introduced appellant's videotaped statement into evidence and played it for the jury. After the videotape was played, Mejia explained that he used "a lot of strong language and slang" during the interview "to try to relate" to appellant. Mejia "felt that [he] needed to express the seriousness of the offense." During appellant's statement, Mejia asked appellant "how much he weighed" because Mejia "wanted [appellant] to understand the severity of what he was being charged with" as appellant "was laughing" during the statement. It appeared to Mejia that appellant understood that he was not under an obligation to agree to an interview. Mejia discussed the possibilities of punishment and probation "[s]o [appellant] would know the range of punishment when being charged with a felony." Mejia explained that at no point did he tell appellant that if he gave a statement he would receive either probation or the minimum sentence. In his statement, appellant told Mejia that Maldonado and Ortega knew about the robbery, but that appellant "was just along for the ride." At one point, appellant denied even being present at the robbery or knowing anything about the robbery. Later, appellant admitted being present at the robbery and getting $700.00. Appellant told Mejia that "the one that had the gun told me to go around and crouching." When questioned as to what type of gun was used in the robbery, appellant stated that it was a revolver. Appellant indicated that he was on the passenger side of the complainant's car during the robbery. On cross-examination, Mejia testified that prior to Garcia reading appellant his rights, he did not know appellant's educational level, nor did he ascertain whether appellant could read or write the Spanish language. Mejia tried to tell appellant that Mejia did not know whether appellant would be eligible for probation and the punishment range for the offense was confinement for five to ninety-nine years or life. Mejia explained to appellant that "this was his opportunity to tell [Mejia] what happened." Mejia admitted using "some pretty heavy language," which included telling appellant that he would be "made a girlfriend because he has a pretty face." Mejia agreed that appellant stated that he did not do anything and did not know that Ortega was planning on a robbery. However, when appellant saw him, Ortega had a gun. Appellant also told Mejia that after Ortega threw the complainants on the ground, he then threw their wallets to appellant. Factual Sufficiency
In his first issue, appellant argues that the evidence is factually insufficient to support his conviction for aggravated robbery "as a principal or as a party" because "[n]o eyewitness specifically identified . . . [a]ppellant as one of the actual participants" and "[a]ppellant's mere presence was not enough to find . . . [a]ppellant guilty." In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the jury's verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for the fact finder's. Watson, 204 S.W.3d at 414-15. A person commits the offense of robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Pen. Code Ann. § 29.02(a)(2) (Vernon 2003). A person commits the offense of aggravated robbery if he commits robbery and uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (Vernon 2003). Under the law of parties, a person is "criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Id. § 7.01(a) (Vernon 2003). Each party to an offense may be charged with commission of the offense. Id. § 7.01(b) (Vernon 2003). A person is "criminally responsible" for an offense committed by the conduct of another if, "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense." Id. § 7.02(a)(2) (Vernon 2003). To establish guilt under the law of parties, the evidence must show that, at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose. See Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994); Ahrens v. State, 43 S.W.3d 630, 633-34 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). In determining whether a defendant participated in an offense as a party, the fact finder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom, 920 S.W.2d at 302; Ahrens, 43 S.W.3d at 633-34. Each fact need not point directly and independently to the guilt of the defendant, as long as the cumulative effect of all the incriminating facts are sufficient to support the conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004); see also Alexander v. State, 740 S.W.2d 749, 758 (Tex.Crim.App. 1987). Intent may also be inferred from circumstantial evidence such as acts, words, and the conduct of the defendant. Guevara, 152 S.W.3d at 50; Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). Appellant asserts that "[t]he record merely shows that the State's witnesses identified . . . [a]ppellant as one of three men who were involved in the robbery" and that "[t]he witnesses provided weak identification evidence that . . . [a]ppellant, himself, actually participated in the robbery." Appellant concedes that "[i]t is undisputed that three men were involved in the robbery, Alvin Ortega, Emilo Maldonado, and [appellant]," but further asserts that "[a]ppellant's mere presence at the scene of the crime was not sufficient to prove that he was a party to the crime" and that "there is no evidence that he was a willing participant." However, the evidence shows that shortly after the robbery occurred, police officers stopped a black truck containing appellant and two other suspects. Inside the truck, police officers recovered a gun matching a description given to them by the complainant and Uribe, the complainant's keys, and $2,495.00, which was roughly divided among appellant and the other two suspects. Although the police offense report indicates that the complainant and Uribe had identified Ortega as the gunman and Maldonado as the person who approached the passenger's side of the car, the complainant testified that appellant was one of the two men who actually robbed him. Uribe testified that while the man on the driver's side of the car was pointing a gun at the complainant, the man on the passenger side of the car told Uribe that if he moved he would be shot. The complainant and Uribe stated that the man who approached the passenger's side of the car had something underneath his shirt, and from this a jury could have inferred that he possessed a weapon. Also, Officer Lopez identified appellant as the person in the nearest proximity to the gun found in the backseat of the truck. In his videotaped statement, appellant initially denied being aware that a robbery was going to take place. However, appellant later told Officer Mejia that during the robbery "the one with the gun told [him] to go around and crouching," and indicating that appellant was on the passenger side of the complainant's car during the robbery. Moreover, he told Mejia that Ortega threw the wallets of the victims to him after Ortega threw the men to the ground. Finally, he also admitted to receiving $700.00 of Uribe's money. Viewing all of the evidence neutrally, we conclude that the evidence was not so obviously weak such that the jury's verdict seems "clearly wrong and manifestly unjust" or that the proof of guilt is against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support appellant's conviction for the offense of aggravated robbery. We overrule appellant's first issue. Admissibility of Statement
In his second issue, appellant argues that the trial court erred in denying his motion to suppress his videotaped statement to Officer Mejia because it "was a product of improper police interrogation techniques," "was coerced," and "[t]he record shows that the police officer who interviewed [appellant] for the statement used unlawful measures to obtain it." Waiver We note, initially, that the State argues that because appellant "did not renew his motion to suppress or earlier objections to his videotaped statement" during Officer Mejia's testimony, his "assertion that the complained-of remarks rendered his videotaped statement involuntary was . . . not preserved for appellate review." When a pre-trial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence in order to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex.App. Crim. 1986). However, when a defendant affirmatively states that he has "no objection" at trial to the admission of the complained-of evidence, he waives any error in the admission of the evidence, despite the pretrial ruling. Moody v. State, 827 S.W.2d 875, 889 (Tex.Crim.App. 1992). The record indicates that prior to trial, appellant filed a motion to suppress the videotaped statement. The trial court denied the motion and entered "findings and conclusions." At trial, during Officer Mejia's testimony, the State offered into evidence the videotaped statement. At that time, the following exchange occurred, [Appellant's Counsel]: I've already got an objection to the exhibit Your Honor. [Trial Court]: Yes, sir you do and it's overruled. The videotaped statement was then admitted into evidence as State's Exhibit 2, and an English translation of the statement was admitted as State's Exhibit 2A. After it was established that appellant had a running objection to the videotaped statement, the statement was played for the jury. Here, appellant secured an adverse ruling on his pre-trial motion to suppress and, at trial, made an additional objection to the admission of the evidence. Accordingly, we hold that appellant has preserved for our review the trial court's denial of his motion to suppress the evidence. Standard of Review The appropriate standard for reviewing a trial court's ruling on a motion to suppress evidence is bifurcated, giving almost total deference to a trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App. 2002). We "should afford the same amount of deference to trial courts' rulings on `application of law to fact questions,' also known as `mixed questions of law and fact,' if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor." Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Finally, we conduct a de novo review where the resolution of mixed questions of law and fact do not turn on an evaluation of credibility and demeanor. Id. Thus, when, as here, we have a videotaped statement and an uncontroverted version of events, we review the trial court's ruling on an application of law to facts de novo. Herrera v. State, 194 S.W.3d 656, 658 (Tex.App.-Houston [14th Dist.] 2006, pet. ref'd). In reviewing a trial court's ruling, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996). However, this general rule is inapplicable where the suppression issue has been consensually re-litigated by the parties during the trial on the merits. Id. Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review. Id. In the instant case, because appellant fully participated in the re-litigation of the issue during his cross-examination of Officer Mejia, we consider Mejia's trial testimony in our review of the trial court's suppression ruling. Voluntariness of Statement Appellant filed his pre-trial motion to suppress his statement, contending that Officer Mejia's interrogation of appellant violated the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, article I, section 10 of the Texas Constitution, and articles 1.05 and 38.22 of the Texas Code of Criminal Procedure. The trial court denied appellant's pre-trial motion to suppress and filed written findings of fact and conclusions of law. The findings reflect that the trial court determined that appellant was read "his rights in accord with Article 38.22," was not "coerced or threatened . . . to give a statement," was not promised "anything to induce [appellant] to give a statement," and that the statement was "voluntarily" made. Appellant argues that his statement was involuntary because Officer Mejia told him that "if he did not confess to [the] alleged crime, he would serve a long sentence and he would be sexually abused by other inmates." "A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion." Tex. Code. Crim. Proc. Ann. art. 38.21 (Vernon 2005). For a promise to render a confession invalid under article 38.21, the promise must be positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully. Martinez v. State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004). The truth or falsity of a statement is irrelevant to a voluntariness determination not only under federal constitutional law but also under state law. Id. at 794-95. Under Texas law, the determination is whether the officially sanctioned positive promise would be likely to influence the defendant to speak untruthfully and not whether the defendant in fact spoke untruthfully. Id. at 795. Under federal law, we must focus on official coercion as it impacts the free will of the accused. Smith v. State, 779 S.W.2d 417, 427 (Tex.Crim.App. 1989). At trial, Officer Mejia denied making any promises to appellant in return for the statement or threatening or coercing appellant. Our review of the videotaped statement reveals that after appellant was read his legal rights, he indicated that he understood those rights and at no time indicated that he wished to speak with a lawyer. During the interview, Mejia stated to appellant, "[i]f you feel repentant for what happened, I don't know if they'll give you less time. Instead of giving you 30 years in the penitentiary, they might give you 10. Or even probation. I don't know." Later during the interview, Mejia stated, "[y]ou won't be able to bear the pen, man. You won't bear it. They're going to put a dress on you. They're going to put a dress on you and then they're going to make you a girlfriend there. Because you're very pretty. You have a pretty face." Although Officer Mejia did predict that appellant would not be able to tolerate prison life and would be subject to sexual abuse, the record firmly establishes that he did not make any positive promise to appellant at all. In fact, the record reveals that Mejia specifically told appellant, "I don't know if they'll give you less time." Thus, Mejia did not directly or indirectly promise appellant anything or otherwise induce him to give his statement. Moreover, Mejia did not threaten or coerce appellant into speaking with him. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress his statement. We overrule appellant's second issue. Ineffective Assistance of Counsel
In his third issue, appellant argues that he was denied effective assistance of counsel because his trial counsel told appellant "that the jury could not give him probation for aggravated robbery." Appellant asserts that this statement "was clearly erroneous and [his] decision to not have a jury assess his punishment was unknowing and involuntary" and "should not reasonably be considered sound trial strategy." The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland requires a two-step analysis whereby appellant must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. 466 U.S. at 687, 104 S. Ct. at 2064; Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). Strickland defines reasonable probability as a "probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). A claim of ineffective assistance must be firmly supported in the record. Id. Here, at the pretrial hearing, the following exchange occurred between appellant and his trial counsel: [Appellant's Counsel]: I've also explained to you that you have the right to have the Court impose your punishment or have the jury impose your punishment; is that correct? [Appellant]: Yes. [Appellant's Counsel]: I've explained to you that if the Court imposes your punishment, and you're found guilty of aggravated robbery, that you do not qualify for a probation. You understand that she cannot give you probation? [Appellant]: Yes. [Appellant's Counsel]: All the Judge can do is give you time in prison; you understand that? [Appellant]: Yes. [Appellant's Counsel]: The jury can't consider giving you probation if they find you guilty of aggravated robbery, okay? [Appellant]: Yes. [Appellant's Counsel]: You also understand that if the jury would give you a probation, and you got deported, that in all likelihood you would have a warrant out for your arrest for failure to comply with the terms and conditions of a probation, if you got lucky enough to get probation from a jury; you understand that, too? [Appellant]: Yes. [Appellant's Counsel]: Knowing that you have a choice of having the Judge set your punishment, do you want the Judge to set the punishment or you want the jury? I've recommended the Judge to you. [Appellant]: The Judge. (emphasis added). Based on the record, either appellant's trial counsel misspoke when he told appellant that the jury "can't" consider probation, the court reporter misunderstood counsel, or the court reporter made a stenographic error. If counsel actually misspoke, any harm resulting from that statement was cured when counsel later in the exchange stated, "if the jury would give you a probation," clearly indicating that the jury could possibly sentence appellant to probation. In either event, the performance of appellant's trial counsel cannot be said to have fallen below an objective standard of reasonableness. Accordingly, we hold that appellant has not established that his trial counsel's performance fell below an objective standard of reasonableness. We overrule appellant's third issue. Conclusion
We affirm the judgment of the trial court.