No. 13-03-243-CR
Memorandum opinion delivered and filed December 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 10th District Court of Galveston County, Texas.
Before Justices HINOJOSA, YAÑEZ, and GARZA.
YAÑEZ, Justice.
A jury convicted appellant, David Wesley Valerio, Sr., of murdering his wife, and the trial court assessed his punishment at forty-five years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. By two issues, appellant challenges: (1) the admission of his videotaped confession into evidence; and (2) the factual sufficiency of the trial court's finding that although he acted in sudden passion, such passion did not arise from adequate cause within the meaning of section 19.02(d) of the penal code. The record contains the trial court's certification that this is not a plea-bargain case, and the defendant has the right of appeal. See Tex.R.App.P. 25.2(a)(2). We affirm. As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex.R.App.P. 47.4.
Section 19.02(d) provides:
At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.
See Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003).
I. Video-Taped Confession
In his first issue, appellant challenges the trial court's decision to admit his video-taped confession into evidence. Appellant contends his Fifth Amendment " Miranda rights" were violated when he was denied his right to counsel during custodial interrogation. Mark Pilsner, a detective with the Galveston Police Department, interviewed appellant. During the interview, appellant requested an attorney and the interview was terminated. Shortly thereafter, appellant re-initiated the interview. When appellant asked when he would be provided an attorney, Pilsner said he would be provided an attorney when he went to court. Appellant argues his Miranda rights were violated because Pilsner failed to inform him of his right to have counsel present during questioning. Standard of Review
At a suppression hearing, the trial court is the sole judge of the weight and credibility of the evidence, and an appellate court may not disturb the trial court's findings absent a clear abuse of discretion. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995). The State has the burden to establish a valid waiver of the right to counsel. Upton v. State, 853 S.W.2d 548, 553 (Tex.Crim.App. 1993). Recognizing that the trial court is the sole factfinder at a suppression hearing, we apply a deferential standard of review to a trial court's findings to determine whether they have evidentiary support in the record. Id. When reviewing alleged invocations of the right to counsel, we typically look at the totality of the circumstances surrounding the interrogation, as well as the alleged invocation, in order to determine whether a suspect's statement can be construed as an actual invocation of his right to counsel. Dinkins v. State, 894 S.W.2d 330, 351 (Tex.Crim.App. 1995); Lucas v. State, 791 S.W.2d 35, 45-46 (Tex.Crim.App. 1989). Once a suspect has invoked the right to counsel during questioning by law enforcement, the Fifth Amendment right to counsel has been invoked and all interrogation by the police must cease until counsel is provided or the suspect reinitiates conversation. McCarthy v. State, 65 S.W.3d 47, 51 (Tex. 2001) (citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Miranda v. Arizona, 384 U.S. 436, (1966); Dinkins, 894 S.W.2d at 350-51)). If the arrestee reinitiates the conversation, the Edwards rule is satisfied. Id. at n. 6. Analysis
Here, the facts are undisputed. Detective Pilsner conducted a video-taped custodial interrogation of appellant. Before he began the questioning, Pilsner advised appellant of his Miranda rights, including his right to have counsel present prior to and during questioning. At the suppression hearing, appellant testified that he understood and voluntarily signed a written waiver of his rights. Approximately an hour and a half into the interview, appellant indicated he wanted to speak to an attorney. Pilsner terminated the interview and appellant was returned to his cell. Approximately five minutes later, appellant asked that the interview continue. When the interview reconvened, Pilsner attempted to clarify whether appellant wished to continue the interview without counsel. Appellant asked when counsel would be provided. Pilsner responded that an attorney would be provided when appellant went to court. Thereafter, appellant continued the interview and confessed to murdering his wife. Appellant contends that Pilsner "ran afoul of Miranda" by telling him he would be provided an attorney when he went to court and failing to re-advise him of his right to have an attorney present during questioning. At the suppression hearing, appellant testified that he asked for an attorney "just one time." He testified that after the interview was terminated, he asked to see Pilsner again. He also testified that after the interview began the second time, Pilsner told him that before the interview could continue, he had to give up his previously-expressed right to counsel. At the suppression hearing, the trial court reviewed appellant's video-taped statement. At the conclusion of the hearing, the trial court denied appellant's motion to suppress and found that his video-taped statement was "freely and voluntarily given." It further found that appellant had re-initiated the interview and that Pilsner had explained to appellant that he could either request and have the benefit of a lawyer or proceed without a lawyer. The court found appellant expressed his desire to talk and that he confessed to the events that led to his wife's death. The trial court filed written findings of fact and conclusions of law consistent with its verbal findings. In its conclusions of law, the trial court found that appellant voluntarily and knowingly waived his constitutional rights and gave the video-taped statement to Pilsner. Appellant argues that Pilsner's statement that an attorney would be provided when appellant went to court constitutes a violation of appellant's Fifth Amendment rights. We view appellant's argument as raising two sub-issues: (1) whether appellant waived his formerly-invoked right to the presence of an attorney during custodial interrogation when he re-initiated the interview; and (2) whether Pilsner's statement that appellant would be provided an attorney when he went to court constitutes a Miranda violation. We note that in Duckworth v. Eagan, 492 U.S. 195, 204 (1989), the United States Supreme Court held that an interrogating officer's accurate statement that a lawyer would be appointed "if and when you go to court" satisfied Miranda. See id. The Supreme Court rejected the claim that the "if and when you go to court" language was misleading and did not comply with Miranda because: (1) the instruction accurately described the procedure for the appointment of counsel in Indiana; and (2) " Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one." See id. In Soffar v. Cockrell, 300 F.3d 588, 595 (5th Cir. 2002), the defendant asked the interrogating officer whether he should get an attorney, how he could get one, and how long it would take to have an attorney appointed. See id. The Fifth Circuit held that none of the defendant's questions rose to the level of an unambiguous invocation of his right to counsel. See id. The Soffar court also held that even if the interrogating officer's responses to the defendant's questions were misleading or deceitful, the defendant was well aware of his rights because he had been given numerous Miranda warnings and had waived his rights several times prior to his interview. See id. at 596. In the case before us, we conclude it is unnecessary for us to decide whether Pilsner's statement constituted a Miranda violation because even if the trial court erred in admitting appellant's video-taped statement, any such error was harmless. Harm Analysis
The Texas Court of Criminal Appeals has held that a trial court's erroneous admission of a defendant's statement in violation of the Fifth Amendment is federal constitutional error subject to a harm analysis under Texas Rule of Appellate Procedure 44.2(a). McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App. 2001); see Tex.R.App.P. 44.2(a). Under rule 44.2(a), a judgment of conviction or punishment must be reversed unless the reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment. See Tex.R.App.P. 44.2(a); McCarthy, 65 S.W.3d at 52. Error in admitting an appellant's statement is not harmless beyond a reasonable doubt if there is a reasonable likelihood that the error materially affected the jury's deliberations. See McCarthy, 65 S.W.3d at 55. Thus, a "reviewing court should calculate, as nearly as possible, the probable impact of the error on the jury in light of the other evidence." See id. Here, the defendant testified at trial that when his wife started pushing him around, he "snapped" and hit her. He testified that he grabbed her neck and strangled her with his hands until she lost consciousness; thereafter, he continued to strangle her by wrapping the cord to his electric razor around her neck. He testified he knew he was endangering her life when he squeezed and wrapped the cord around her neck. He told the jury he was not guilty of murdering his wife because he did not intend to kill her. There is no evidence in the record that appellant's decision to testify at trial was involuntary. Assuming, without deciding, that the trial court erred in admitting appellant's video-taped confession, we conclude that there is no reasonable likelihood that the admission of the statement materially affected the jury's deliberations. See id. Therefore, any error in the trial court's admission of appellant's statement was harmless beyond a reasonable doubt. See id.; see Tex.R.App.P. 44.2(a). Appellant admits that he testified to many of the same facts contained in his video-taped statement, but argues that he "might not" have done so if the tape had not been admitted into evidence. We reject appellant's argument. The record contains no evidence to support appellant's contention that he "might" not have testified if the trial court had suppressed his statement. We overrule appellant's first issue. Adequate Cause
In his second issue, appellant challenges the factual sufficiency of the evidence supporting the trial court's finding that he failed to prove by a preponderance of the evidence sudden passion supported by adequate cause. The trial court found that appellant acted with sudden passion, but found such passion did not arise from an adequate cause. We will review all the evidence and set aside the verdict only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Richardson v. State, 83 S.W.3d 332, 336 (Tex.App.-Corpus Christi 2002, pet. ref'd). At the punishment hearing of a murder trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. See Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003); see Richardson, 83 S.W.3d at 349. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree. See Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Id. § 19.02(a)(1). Thus, causes that would not render the ordinary person's mind incapable of cool reflection do not constitute adequate cause. Id. Here, appellant points to the following facts in support of adequate cause: (1) he was fatigued from work and in pain from injuries sustained in a motorcycle accident; (2) his wife pressured him to leave the house before he could clean up and apply medicine to his wounds; and (3) his wife threatened to call the police and physically attacked him. Appellant testified that his wife pushed and hit him and threatened to call the police if he did not leave the house. He testified that when she "started pushing [him] around," he "snapped," hit her, and grabbed her neck. When asked why he was so angry, appellant said, "I don't know. I don't know whether it was the pushing or the hitting." When asked what caused him to snap that day, appellant responded, "I don't know. I cannot tell you." We hold that the trial court's finding that appellant failed to prove adequate cause is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Richardson, 83 S.W.3d at 336. We overrule appellant's second issue. The trial court's judgment is AFFIRMED.