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holding failure to request continuance based on alleged Brady violation waives error
Summary of this case from Boyd v. StateOpinion
No. 04-98-00230-CR
Delivered and Filed: May 19, 1999
Appeal from the 175th Judicial District Court, Bexar County, Texas Trial Court No. 97-CR-0279. Honorable Mary Román, Judge Presiding.
Suzanne M. Kramer, San Antonio, for appellant.
Mary Beth Welsh, Asst. Criminal Dist. Atty., San Antonio, for appellee.
Sitting: TOM RICKHOFF, Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
OPINION
Kenneth Dashaun Williams was convicted of murder and sentenced to imprisonment for thirty years. He appeals, raising six points of error. We affirm.
Facts
The State presented evidence that Robert Robinson was shot and killed with a .22 caliber revolver on June 22, 1996. Ten days later, the revolver used in the murder was thrown out of a stolen car when the police attempted to pull the car over. One of the occupants of the car was Robert Earl Haynes. Cedric Haynes testified that on the evening of June 22, 1996, he saw Williams and Robert Earl Haynes handling the revolver that was used in the murder. Terrick Alsbrooks testified that he went "riding around" with Williams and Robert Earl Haynes on the evening of the murder. Williams was driving, Haynes was in the front passenger seat, and Alsbrooks was in the back seat. While they were stopped at a red light, a car pulled up behind them with its bright lights on. Williams ran the red light, and the car continued to follow them for a while. Eventually, Williams managed to get behind the car that had been following them. Alsbrooks testified that as their car approached the other car, he heard Williams say "[s]hoot him" and saw Haynes fire a shot at the other car. When the three were splitting up later that evening, Williams warned Alsbrooks not to say anything about what had happened.
A written statement made by Williams was admitted into evidence. In the statement, Williams said that he and Haynes left the Cameo Theater that evening in a "two-seater" rental truck. A car approached them with its bright lights on. Williams tried to get away from the other car because he thought it might contain some people who want to kill him. When he stopped briefly at a red light, Haynes jumped out and started shooting at the other car. After Haynes got back in the car, Williams saw that he had a gun, which Williams believed to be a .38 caliber. According to the statement, Williams "didn't know [Haynes] had a gun in the car. If I'd known there was a gun in the car, I wouldn't have ran. We would have had a shoot-out right there."
At trial, Williams testified that he was actually driving a four-door car, rather than a truck, and Albrooks and another person were also in the car with him and Haynes. He claimed that he did not mention these other people in his written statement to protect them, since he and the other people had "nothing to do with it, when Robert Earl acted on his own."
Suppression of Written Statement
In his first point of error, Williams argues that the trial court erred by admitting his written statement into evidence because he made the statement in an office that was not specifically designated for processing juveniles.
At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); In re L.R., 975 S.W.2d 656, 658 (Tex. App. — San Antonio 1998, no pet.). Consequently, we view the evidence in the light most favorable to the trial court's ruling and afford almost total deference to its findings if they are supported by the record. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); In re A.D.D., 974 S.W.2d 299, 305 (Tex. App. — San Antonio 1998, no pet.). When the resolution of the suppression issue does not turn upon an evaluation of credibility or demeanor, we review de novo the trial court's determination of the applicable law, as well as its application of the law to the facts. See Guzman, 955 S.W.2d at 89; In re A.D.D., 974 S.W.2d at 305.
Because Williams was a juvenile when he made the statement, the Texas Family Code governs the admissibility of the statement. See Comer v. State, 776 S.W.2d 191, 196 (Tex.Crim.App. 1989); Smith v. State, 881 S.W.2d 727, 731 (Tex. App. — Houston [1st Dist.] 1994, pet. ref'd). Section 52.02 of the Family Code provides that "a person taking a child into custody, without unnecessary delay and without first taking the child to any place other than a juvenile processing office designated under Section 52.025," must release the juvenile, take the juvenile before an official designated by the juvenile court, or take the juvenile to a detention facility or medical facility. Tex. Fam. Code Ann. § 52.02(a) (Vernon Supp. 1999) (emphasis added). Section 52.025 allows the juvenile court to "designate an office or a room, which may be located in a police facility or sheriff's offices, as the juvenile processing office for the temporary detention" of juveniles. Id. § 52.025(a) (Vernon 1996). A juvenile may be detained in a juvenile processing office for "the receipt of a statement by the child . . . ." Id. § 52.025(b)(5) (Vernon Supp. 1999).
Williams was certified to be tried as an adult.
We discussed the interplay of these statutes in Anthony v. State, 954 S.W.2d 132 (Tex. App. — San Antonio 1997, no pet.). In Anthony, the defendant was taken into custody under suspicion of murder and placed in the gang unit of the San Antonio Police Department. When he indicated that he wanted to make a statement, a police officer took him to a magistrate, who explained his rights to him. The police officer then took the defendant to the homicide office of the police department, where the defendant made a statement. The juvenile court had designated the police department as a facility for processing juveniles. In considering whether this designation complied with section 52.025, we held:
[T]he general designation of police stations and magistrates' offices is proper. However, a literal interpretation of the order would allow an officer to take a statement or process a juvenile in any facility or area of the police station. This procedure does not supply the child with protection against the stigma of criminality or exposure to adult offenders. The police station must use an area designated exclusively for processing juveniles.
Anthony, 954 S.W.2d at 135-36 (citations omitted). Because the homicide office was not designated exclusively for processing juveniles, we concluded that the defendant's statement was taken in violation of the Family Code. See id. at 136. The statement was therefore inadmissible. See id.
Viewed in the light most favorable to the trial court's ruling, the record reveals the following facts related to Williams's statement. Williams was arrested for theft and evading arrest. When he was arrested, he identified himself as his older brother and provided the police his brother's birth date. Based on his brother's birth date, the police concluded that Williams was an adult and booked him into the Bexar County Jail.
San Antonio Police Officer Thomas Matjeka suspected that Williams was involved in Robert Robinson's murder. Upon learning that he was being detained in the Bexar County Jail under his brother's name, Matjeka went to the jail and asked Williams whether he would be willing to give a statement concerning what happened on the night of the murder. Williams agreed and was released to Matjeka's custody. Matjeka took Williams directly to a magistrate's office, and the magistrate informed him of his rights and gave him the warnings required by the Family Code. See Tex. Fam. Code Ann. § 51.095(a)(1)(A) (Vernon Supp. 1999). When the magistrate finished with this procedure, Matjeka took Williams to the Youth Crimes Bureau of the San Antonio Police Department. As a result of ongoing remodeling, no interview rooms were available at the Youth Crimes Bureau. Matjeka had intended to use either a sergeant's or a lieutenant's private office within the Bureau to interrogate Williams, but those offices were locked because the sergeant and the lieutenant had left for the day. The only remaining area in the Bureau was an "open bay area" where four or five detectives do their work. Matjeka testified that in that area "other suspects are being brought in, other juveniles, other adults." Because of the lack of privacy in the bay area, Matjeka took Williams to the homicide office, where Williams gave his statement. Matjeka testified that the office was vacant except for him and Williams. In particular, no adult offenders were present. After the statement was completed, Matjeka took Williams back to the magistrate, Williams signed the statement in the magistrate's presence, and the magistrate certified that the statutory requirements had been satisfied and that the statement was voluntary. See id. § 51.095(a)(1)(B)-(D). Matjeka then returned Williams to the Bexar County Jail and reported to the jail officials that Williams needed to be transferred to a juvenile facility.
It is undisputed in this case, as in Anthony, that the San Antonio Police Department has been designated as a place for processing juveniles. The parties also seem to agree that the Youth Crimes Bureau was a designated juvenile processing office.
Although Williams, like the defendant in Anthony, gave his statement in the homicide office, we conclude that this case is distinguishable from Anthony. The purpose for requiring juveniles to be interrogated in specially designated areas is to protect them from exposure to adult offenders and the stigma of criminality. See Anthony, 954 S.W.2d at 136. Because no one else was in the homicide office at the time Williams made his statement, this purpose was fulfilled. To hold that Williams's statement was inadmissible under these circumstances would be to place form above substance. We overrule Williams's first point of error.
We also believe the interest in achieving the purpose of sections 52.02 and 52.025 is somewhat diminished in this case, given that Williams had already been exposed to adult offenders and the stigma of criminality when he was booked into the Bexar County Jail as a result of his own misrepresentations.
Although the point of error asserts that the statement was also inadmissible pursuant to section 51.095 of the Family Code, the Fifth and Sixth Amendments to the United States Constitution, and Article 1, Section 10 of the Texas Constitution, these issues are waived because Williams has not provided any argument or authorities to support them. See Tex. R. App. P. 38.1(h); Stahle v. State, 970 S.W.2d 682, 692 (Tex. App. — Dallas 1998, pet. ref'd).
Accomplice Witness
In his second and third points of error, Williams asserts that Terrick Alsbrooks was an accomplice witness. Based on this assertion, he argues that the trial court erred by refusing to include an accomplice witness instruction in the jury charge and that the State failed to present sufficient evidence corroborating Alsbrooks's testimony.
An accomplice witness is someone who participated before, during, or after the commission of the crime. See Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998); Kunkle v. State, 771 S.W.2d 435, 439 (Tex.Crim.App. 1986). The fact that a witness knew of the crime and failed to disclose it, or even concealed it, does not make the witness an accomplice. See Blake, 971 S.W.2d at 454; Kunkle, 771 S.W.2d at 439. Even presence at the scene of the crime does not make a person an accomplice. See Blake, 971 S.W.2d at 454; Kunkle, 771 S.W.2d at 439. "In order to be an accomplice witness, there must be some evidence of an affirmative act on the witness' part to assist in commission of the offense." Kunkle, 771 S.W.2d at 440.
In this case, there is no evidence that Alsbrooks committed an affirmative act to assist in Robinson's murder; he was simply present when the murder was committed. Williams argues that Alsbrooks was an accomplice because he testified that the police searched his house, which made him fear that he might be charged in connection with the murder. We note, however, that there is no evidence that Alsbrooks has actually been charged; nor is there sufficient evidence in this record to support a murder charge against Alsbrooks. The mere fact that the police searched his house is insufficient to make Alsbrooks an accomplice. The court therefore did not err in refusing to include an accomplice witness instruction in the jury charge and it was not necessary for the State to corroborate Alsbrooks's testimony. See Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Gonzales v. State, 681 S.W.2d 270, 274 (Tex. App. — San Antonio 1984, no pet.). We overrule Williams's second and third points of error.
Sufficiency of the Evidence
In his fourth point of error, Williams argues that the evidence was legally insufficient to support his conviction.
In analyzing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether a rational jury could have found beyond a reasonable doubt all the essential elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994). We are not free to reweigh the evidence or to determine the credibility of the testimony. See Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993). When the State relies on the law of parties to establish the defendant's guilt, the State must prove that the defendant acted with the intent to promote or assist in the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid another person in its commission. See Mares v. State, 801 S.W.2d 121, 127 (Tex. App. — San Antonio 1990, no pet.).
In this case, the jury was charged on the law of parties. The jury was presented with evidence that Robinson was killed by a bullet from a gun that was thrown out of a car in which Haynes was riding. The jury could also infer from the evidence that Williams was aware Haynes had a gun when he agreed to give him a ride, that Williams decided to pursue Robinson, that Williams instructed Haynes to shoot Robinson, and that Williams warned Alsbrooks not to say anything about the murder. A rational jury thus could find that Williams was guilty as a party to murder. We overrule Williams's fourth point of error.
Extraneous Offenses
In his fifth point of error, Williams argues that the trial court erred by admitting evidence of extraneous offenses because the evidence was inadmissible under Rules 403 and 404(b) of the Texas Rules of Evidence. Although Williams asserts in his brief that extraneous offense evidence "kept appearing in the reporter's record," he only cites two points in the record. We therefore confine our review to the evidence addressed at those points. See Tex. R. App. P. 38.1(h).
At the first point in the record cited by Williams, the prosecutor asked Officer Matjeka how he first contacted Williams. Matjeka responded, "I contacted him at the Bexar County Jail." The prosecutor then asked whether Williams was booked under his own name, and Matjeka responded, "No, sir. He had been booked under — " At that point, the defense objected on the ground that the "failure to identify" was an extraneous offense. The court overruled the objection, and Matjeka continued to explain that Williams was booked under his brother's name and that Williams was booked into the jail rather than juvenile detention because his brother was an adult. Matjeka did not reveal how Williams came to be identified as his brother. At the second point in the record cited by Williams, the prosecutor asked Williams why he was booked under his brother's name. The defense objected on the ground that the question called for an extraneous offense. After the trial court overruled the objection, Williams answered that his mother had "passed away, and she usually [came to] get me out of juvenile. And I didn't have nobody to come get me out of juvenile. So I was going to use my brother's name so I could make bond out of the jail house."
In reviewing these points in the record, we find no objection on the basis of Rule 403. Williams thus failed to preserve his argument under that Rule. See Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990).
Although Williams's extraneous offense objections were sufficient to raise his argument under Rule 404(b), he waived this argument by failing to object at other points at which similar evidence was admitted. Before Williams objected, Matjeka testified without objection that Williams was in jail and that he was not booked under his own name. Later, Williams's written statement was admitted into evidence. In the statement, Williams admits, "I am under arrest for theft and evading arrest. When I was arrested, I used my brother's name and they booked me in the county jail" (emphasis added). Although Williams objected to the admission of the written statement on the grounds that it was involuntary, that it was taken in violation of the Family Code, and that the proper predicate had not been laid, he did not request that any portion of it be redacted to remove references to extraneous offenses. Williams thus waived his argument that the extraneous offense evidence was improperly admitted. See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998).
Williams also argues in his fifth point of error that the trial court erred by failing to conduct a hearing, at both the guilt/innocence phase and the punishment phase, to determine whether the State could prove the extraneous offenses beyond a reasonable doubt. The court of criminal appeals has held that when the State attempts to introduce evidence of extraneous offenses, the trial court must make an initial determination that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offenses. See Mitchell v. State, 931 S.W.2d 950, 954 (Tex.Crim.App. 1996); Harrell v. State, 884 S.W.2d 154, 160 (Tex.Crim.App. 1994).
Williams did not request a hearing on this issue at the guilt/innocence phase, nor did he argue that the State could not establish beyond a reasonable doubt that he falsely identified himself. Therefore, this issue is waived. See Tex. R. App. P. 33.1(a). We also note that Williams does not assert on appeal that the State failed to prove beyond a reasonable doubt that he falsely identified himself. Moreover, the fact that he falsely identified himself was uncontested at trial — Williams himself admitted it. Under such circumstances, we are unable to discern how Williams was harmed by the trial court's failure to conduct a hearing to determine if the State could prove this fact beyond a reasonable doubt.
At the punishment phase, the State presented evidence that Williams committed theft of a car and that he evaded arrest, as well as evidence that he falsely identified himself. Williams did not request a hearing to determine whether the State could prove these offenses beyond a reasonable doubt, nor did he object to the evidence when it was admitted. Instead, he waited until the State had presented all its evidence and then moved for a mistrial on the ground that the State had failed to establish the commission of the offenses beyond a reasonable doubt. This action was untimely and did not operate to preserve his argument on appeal that the trial judge erred by failing to make the beyond-a-reasonable-doubt determination when the evidence was admitted. See Tex. R. App. P. 33.1(a).
Williams's final argument under his fifth point of error is that the trial court erred by failing to instruct the jury at the guilt/innocence phase that it could not consider evidence of any extraneous offense unless it determined that the State proved the offense beyond a reasonable doubt. Because Williams did not request this instruction, we are limited to determining whether Williams suffered egregious harm from the court's failure to include the instruction. See George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App. 1994); Warfield v. State, 974 S.W.2d 269, 273 (Tex. App. — San Antonio 1998, pet. ref'd). Egregious harm only exists when the error was so severe that it deprived the accused of a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App. 1985). As noted above, it was uncontested at trial that Williams falsely identified himself. We therefore conclude that Williams was not egregiously harmed by the court's failure to instruct the jury that it could not consider this extraneous offense unless the State proved it beyond a reasonable doubt. We overrule Williams's fifth point of error.
Withholding of Evidence
In his sixth point of error, Williams argues that his conviction should be reversed because the State withheld evidence. The State has an affirmative duty under the Due Process Clause to disclose exculpatory or impeachment evidence that is material to guilt or punishment. See United States v. Bagley, 473 U.S. 667, 676 (1985); Brady v. Maryland, 373 U.S. 83, 87 (1963); State v. DeLeon, 971 S.W.2d 701, 705 (Tex. App. — Amarillo 1998, pet. ref'd); Harwood v. State, 961 S.W.2d 531, 544 (Tex. App. — San Antonio 1997, no pet.). When the evidence is disclosed during trial, the materiality question turns on whether the defendant was prejudiced by the delayed disclosure. See Yates v. State, 941 S.W.2d 357, 364 (Tex. App. — Waco 1997, pet. ref'd). Furthermore, when previously withheld evidence is disclosed at trial, the defendant has an opportunity to request a continuance. See id.; Losoya v. State, 636 S.W.2d 566, 571 (Tex. App. — San Antonio 1982, no pet.). The failure to request a continuance waives any Brady violation, as well as any violation of a discovery order. See Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App. [Panel Op.] 1982); Yates, 941 S.W.2d at 364; Losoya, 636 S.W.2d at 571.
Although Alsbrooks testified at trial that Williams directed Haynes to shoot Robinson, Alsbrooks's written statement did not include this information. Alsbrooks testified at trial that he gave the information to the police officers who interviewed him, but instructed them not to include it in the written statement because he was afraid for his life. The police officers corroborated this account.
Williams argues that his conviction must be reversed because the State did not inform him that Alsbrooks would testify that Williams instructed Haynes to shoot Robinson. This argument fails for several reasons. First, the evidence was inculpatory, not exculpatory. Second, when the evidence was revealed during the State's direct examination of Alsbrooks, Williams did not object or request a continuance. Third, the defense thoroughly cross-examined Alsbrooks on the discrepancy between his trial testimony and his written statement, and Williams has not suggested that he would have pursued a different trial strategy if he had known this information sooner. We overrule the sixth point of error.
Conclusion
Having overruled each of Williams's points of error, we affirm the judgment of the trial court.