Robert Taylor WILLIAMS, Appellant v. The STATE of Texas, Appellee
No. 14-12-00017-CR
Court of Appeals of Texas, Houston (14th Dist.)
June 11, 2013
405 S.W.3d 425
In light of the plain language of
IV. Conclusion
Because the trial court‘s December 4, 2012 order is void, we conditionally grant the petition for writ of mandamus. Our writ will not issue unless the trial court refuses to vacate its December 4, 2012 order within ten days of the date of this opinion.
Tom Moran, Houston, for Appellant.
Carol M. Cameron, Houston, for the State.
Panel consists of Justices FROST, BROWN, and BUSBY.
KEM THOMPSON FROST, Justice.
Appellant Robert Taylor Williams appeals his conviction for murder, asserting that the trial court erred in overruling his motions to suppress an in-court identification and his custodial statement and in making certain other evidentiary rulings. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with the felony offense of murder to which he pleaded, “not guilty.” The indictment contained an enhancement paragraph, alleging a prior felony conviction.
Appellant filed a motion to suppress a witness‘s in-court identification of him. Appellant also filed several other motions to suppress, all of which related to recorded statements he made to officers during custodial interrogation. After holding hearings on these matters, the trial court denied all of these motions.
The State presented evidence that appellant and the complainant were walking along some railroad tracks when they got into an argument; appellant pulled a revolver from the waistband of his pants and shot the complainant three times. Although the complainant fell to his knees, appellant shot the complainant three more times and fled from the scene, where the complainant eventually died. As appellant fled from the scene, he passed within an arm‘s length distance of a woman who had observed the entire incident as she walked her dogs near the railroad tracks. Another witness, who was walking from a nearby
An investigating officer compiled a photo array, containing appellant‘s photo along with five others. One of the witnesses who had seen the shooting knew the complainant and positively identified appellant as the shooter from the photo array; this witness also identified appellant in court as the shooter. The other eyewitness, who was walking her dogs when she saw the events unfold, failed to make a positive identification, claiming to be too scared of retaliation if she identified the shooter. The third witness positively identified appellant‘s photo from the array, indicating the man in the selected photo was the person she saw running from the direction on the railroad tracks where she heard gunshots.
Eventually, officers obtained an arrest warrant for appellant in connection with the shooting. Appellant contacted an investigating officer several times by voicemail, indicating his desire to speak with the officer and “clear his name.” Appellant agreed to go with officers to the police station to give a statement.
An officer conducted a recorded custodial interview with appellant. Although appellant raised a number of objections to the admission of the statement into evidence, the trial court overruled those objections. The redacted recorded statement was played in open court.
The jury found appellant guilty as charged and found the enhancement paragraph to be true. Appellant was sentenced to fifty years’ confinement.
DENIAL OF MOTION TO SUPPRESS
In appellant‘s first and fourth issues, appellant challenges the trial court‘s denial of two of his motions to suppress. We review a trial court‘s ruling on a motion to suppress under a bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App.2007). We give almost total deference to the trial court‘s determination of historical facts, especially when the trial court‘s fact findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We afford the same amount of deference to the trial court‘s application of the law to facts if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. We review de novo the trial court‘s application of the law to facts if resolution of those ultimate questions does not turn on an evaluation of credibility and demeanor. Id. When, as in this case, there are no written findings of fact in the record, we uphold the trial court‘s ruling on any theory of law applicable to the case and presume the trial court made implicit findings of fact in support of its ruling so long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000). If supported by the record, a trial court‘s ruling on a motion to suppress will not be overturned. Mount v. State, 217 S.W.3d 716, 724 (Tex.App.-Houston [14th Dist.] 2007, no pet.).
In-Court Identification
In his first issue, appellant asserts the trial court erred in denying his motion to suppress witness Molly Gomez‘s in-court identification of him. Appellant
The record of the hearing on the motion reflects that Gomez saw appellant shoot the complainant during an argument; Gomez claimed to have had no difficulty getting a good look at him as he fled the scene, passing by her within an arm‘s reach. At the pre-trial hearing, Gomez identified appellant in the courtroom as the person she saw shoot the complainant. According to the record, Officer Waters compiled a photo array containing six photos, including appellant‘s photo in position two. Gomez met with the officer at the police station to view the photo array on the day of the shooting. Although Gomez claimed to have recognized appellant‘s photo in the photo array, she declined to identify him as the shooter because she did not know if he had been apprehended and she was scared that he or others would return in retaliation and harm her. Instead, she picked a photo in position three as the shooter. Officer Waters testified that Gomez visibly vacillated between the photos in positions two and three and appeared upset by the identification process. It is undisputed that Officer Waters, believing Gomez‘s identification to be tainted, then told her that appellant was a suspect and indicated that appellant‘s photo was in position two in the photo array. As reflected in the record of the suppression hearing, Gomez admitted to the officer that she knew the shooter‘s photo was in position two but that she was too afraid to identify him as the shooter. Several days after the incident, Officer Waters showed Gomez the same photo array at Gomez‘s house, along with a single photo of appellant; Gomez did not identify anyone from the photo array, again admitting to the officer that she was too scared to make an identification. Gomez testified that the officer had no influence in helping her identify appellant in court at the pre-trial hearing; she claimed to have based her identification of appellant on what she observed on the day of the shooting. According to the record at the suppression hearing, the State informed the trial court that it did not intend to ask Gomez to make an in-court identification of appellant unless the defense opened the door to such testimony. The trial court overruled appellant‘s motion.
At trial, Gomez was not asked to make an in-court identification of appellant. She described for the jury the events that she saw and the shooter‘s appearance and clothing, at times, referring to appellant as “the defendant” and testifying that she saw “the defendant” shoot the complainant. The record does not reflect that appellant asserted any objection to Gomez‘s references to appellant as “the defendant” until after the State had finished its direct examination of Gomez. Just before cross-examination of Gomez, appellant complained of Gomez‘s references to appellant as “the defendant” and sought to cross-examine Gomez about the tainted pre-trial identification procedure involving the photo array asserting, “I‘m not saying that‘s in any way a violation of your ruling last week. I understand you‘ve denied my motion to suppress in-court identification.” In response, the State claimed, “To respond for the record, we intentionally did not ask this witness to identify [appellant] in court. We did not try to elicit that response to that, so the record is clear, so at this time we will object and say that his request is untimely.” The trial court did not rule on the request. On cross-examination, Gomez testified to Officer Waters‘s identifying appellant‘s photo in position two of the photo array.
Appellant‘s Custodial Statement
In a fourth issue, appellant asserts the trial court erred in denying his motion to suppress admission of his recorded, custodial statement, claiming that it was not voluntary. As reflected in the record of the suppression hearing, appellant contacted Officer Waters more than once by telephone in an attempt to speak with officers about the incident and “clear his name.” The recorded statement and the record of the suppression hearing reflects that Officer Waters admonished appellant of his statutory and Miranda warnings by reading the warnings from a card, and appellant indicated his understanding of each of the warnings. Even though appellant was unaware that the officer sought and obtained a warrant for his arrest, it is undisputed that appellant was in custody at the time Officer Waters gave him these admonishments. Then the following exchange transpired during the recorded statement:
[Appellant]: Why is it saying I need a lawyer?
[Officer]: That‘s just part of the warning.
[Appellant]: Do I need a lawyer present for this?
[Officer]: No, you don‘t need a lawyer present. It‘s just telling you that you have the opportunity. It‘s your Miranda warning and you have the option. Okay?
[Appellant]: Okay.
[Officer]: So, at the end of this, you are waiving the rights in order to intentionally, knowingly, and voluntarily continue with the interview?
[Appellant]: Yes.
[Officer]: Right, you are waiving those rights as I read them to you?
[Appellant]: Yes.
As reflected in the recorded statement, appellant spoke with the officer for over two hours before invoking his right to an attorney.
- (1) [H]e has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
- (2) any statement he makes may be used as evidence against him in court;
- (3) he has the right to have a lawyer present to advise him prior to and during any questioning
- (4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
- (5) he has the right to terminate the interview at any time[.]
Appellant does not contend that he was not warned of his rights. Appellant does not suggest that the question, “Do I need a lawyer present for this,” is an unequivocal assertion of his Miranda rights, amounting to an invocation of his right to counsel. Rather, appellant‘s chief complaint is the officer‘s statement, “No, you don‘t need a lawyer.” According to appellant, the officer‘s statement was not a clarification of the warnings, but rather an affirmative additional statement that appellant did not need a lawyer, which vitiated the validity of the warnings set forth in
The State has the burden of showing, by a preponderance of the evidence, that an accused knowingly, intelligently, and voluntarily waived his statutory and Miranda rights. See Joseph, 309 S.W.3d at 24. In the context of either a written or oral confession, a waiver of rights may be inferred from the actions and words of the person being interrogated based on the totality of the circumstances surrounding the interrogation, including an accused‘s experience, background and conduct. See id. at 24-25. In viewing whether an accused voluntarily relinquishes his rights, we consider whether the statement was a product of a free and deliberate choice rather than one born of intimidation, coercion, or deception. See id. at 25. We also consider whether an accused‘s waiver was made with full awareness of the nature of the right being abandoned and the
Contrary to appellant‘s contentions that this issue is a matter of first impression in Texas, at least one other case has dealt with an issue in which an accused asked the interrogating officer about the necessity of having a lawyer present for questioning. See State v. Panetti, 891 S.W.2d 281, 282 (Tex.App.-San Antonio 1994, pet. ref‘d) (involving an accused who asked, “Should I be answering these questions without my lawyer, or does it matter, or I mean I-I give up, anyway,” before agreeing to continue with the custodial interview). When an accused makes an equivocal request for counsel, there is no requirement that an interrogating officer cease the questioning or confine the questions to clarifying an accused‘s ambiguous statements regarding counsel. See Davis v. U.S., 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994); see also Panetti, 891 S.W.2d at 283-84 (ruling that even if the defendant‘s question about having an attorney present during questioning amounted to an equivocal request for counsel, the officer‘s continued questioning was constitutionally permissible). Accordingly, an interview may continue until an accused clearly and unambiguously invokes a right to counsel. See Davis, 512 U.S. at 459-60, 114 S.Ct. at 2355; see also Panetti, 891 S.W.2d at 284 (concluding that because the accused did not clearly invoke his right to counsel, an officer who did not cease questioning or limit the questions to the subject of having legal counsel present and, instead reminded the accused about the statutory and constitutional rights, acted appropriately and the motion to suppress the accused‘s statement should have been denied).
It is undisputed that Officer Waters read appellant the correct statutory and constitutional warnings from a card and that appellant indicated his understanding of each of those rights. We conclude that appellant‘s query, “Do I need a lawyer present for this,” is an equivocal request for counsel. Cf. Panetti, 891 S.W.2d at 283 (declining to consider whether an accused‘s question, “Should I be answering these questions without my lawyer, or does it matter, or I mean I-I give up, anyway,” amounted to an equivocal request for counsel). When appellant asked about counsel, Officer Waters reminded appellant that it was part of the statutory warnings, told appellant that counsel did not need to be present for appellant to answer the questions,1 informed appellant that was simply an option afforded to him, and then twice asked appellant if he intended to knowingly, voluntarily, and intelligently waive his rights and continue the interview. On one of these occasions, the officer specifically asked whether appellant knowingly, voluntarily, and intelligently waived the rights as they were read to him, and on both occasions, appellant agreed and continued with the interview. See Panetti, 891 S.W.2d at 284 (involving an officer who reminded the accused about the right to
stop the questioning and then asked if the interview could continue). The officer‘s statements do not render appellant‘s recorded custodial statement inadmissible. See id.
The totality of the circumstances surrounding the interrogation shows that appellant‘s waiver was voluntary in that it resulted from a free and deliberate choice without intimidation, coercion, or deception. Although appellant testified at the hearing that he was not aware of the arrest warrant when he gave his statement, the record reflects that appellant attempted to contact Officer Waters more than once and left the officer a voicemail message stating that he wished to speak with the officer and “clear his name.” Appellant willingly cooperated with officers, accompanied them to the police station, and participated in the interview that lasted over two hours. Appellant then requested an attorney, but at no time prior to that point did he ask to halt the interview. During the process, appellant was offered food and drinks. The record shows no evidence of coercion, intimidation, misconduct, or impropriety by the officers. Rather, the lack of intimidation and coercion can be seen during the interview when appellant felt comfortable enough to joke with officers as they re-entered the room; he made no attempt to leave or ask questions. See Joseph, 309 S.W.3d at 24.
The totality of the circumstances also reflects that appellant‘s waiver was made with full awareness of both the nature and the rights being abandoned and the consequences of his decision. See id. According to the record, appellant was thirty-six years old at the time of the statement. He attended school through the fifth grade.
EVIDENTIARY RULINGS
In three issues, appellant complains about various evidentiary rulings during trial. A trial court‘s ruling to admit or exclude evidence is reviewed under an abuse-of-discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App.2007).
Allegedly Improper Opinion Testimony
In his second issue, appellant asserts the trial court erred in overruling his objection to Anthony Adams‘s testimony. Adams, who knew both appellant and the complainant, described an incident in which he saw appellant with a firearm in the week before the shooting. Adams testified that he saw appellant and the complainant together on the morning of the shooting, and later learned that the complainant had died. Adams testified that he was arrested on unrelated charges several days following the shooting. While in custody, Adams spoke with Officer Waters, who believed that Adams knew the whereabouts of the firearm used in the charged offense. While in confinement following his arrest, Adams saw appellant, who inquired why Adams was in jail. Adams testified to his conversation with appellant:
[Prosecutor]: Now, can you tell this jury what [appellant] said to you?
[Witness]: Said several things to me. Asked me what I was doing in jail. I told him, you know, what I‘m doing here: “You got me here.”
[Prosecutor]: Why did you tell him he got you there?
[Witness]: because I--I automatically assumed once Mr. Waters started messing with me about the gun, I automatically assumed he killed [the complainant].
Appellant objected to the testimony and asserted such testimony was not within Adams‘s personal knowledge. When the State responded that Adams could offer opinion testimony, appellant responded that the testimony still lacked personal knowledge.
Appellant contends that Adams‘s testimony was inadmissible under
Adams testified to seeing appellant with a firearm one week before the shooting and then testified to his conversation with Officer Waters regarding the whereabouts of the same firearm following
Appellant also seems to assert that the trial court‘s admission of Adams‘s testimony is not supported by
Allegedly Admissible Hearsay Testimony
In his third issue, appellant contends the trial court erred in sustaining the State‘s hearsay objection to Adams‘s testimony concerning the written statement he gave to Officer Waters. Apparently, Adams‘s written statement contained other statements made by appellant to Adams about how appellant obtained the firearm. Appellant sought to cross-examine Adams about the written statement, posing the following question: “Do you recall telling Officer Waters in your statement how you knew [appellant] got the gun, and he got it from Big Jim McCrae?” The State objected to the question, asserting that it called for inadmissi-
Appellant contends that the question posed did not elicit hearsay. Generally, hearsay is not admissible except as provided by statute or the Texas Rules of Evidence.
To the extent appellant acknowledges that the question attempted to elicit hearsay, appellant contends that he should have been entitled to introduce the remainder of his written statement under
Likewise, although appellant asserts on appeal that the statement was admissible as impeachment testimony under
Custodial Statement
In his fifth issue, appellant asserts the trial court erred in overruling his objections to portions of his custodial statement, namely statements by Officer Waters that allegedly contained inadmissible hearsay, inadmissible opinion testimony, or false statements. The record reflects that appellant raised a number of objections to admission of the appellant‘s recorded, redacted custodial statement with Officer Waters, identifying the exact place in the recorded statement where the objectionable statements were found. Notably, however, appellant asserted no objections that fell after the time marked by two hours, twenty-seven minutes and thirteen seconds (“the 2:27:13 mark“) on the recorded statement. The trial court overruled all of appellant‘s objections.
When the exhibit was offered into evidence, the parties disagreed about the exact place in the recording where appellant invoked his right to counsel and where the statement should be stopped. The record reflects the following statements by defense counsel:
Okay. I want to make sure the record reflects that I wanted it to stop a couple of minutes before then. So my objections that I made, the seventy objections I made to the statement, including all the hearsay of the detective and that sort of thing are basically waived by me. I just want to state for the record, at this point trial strategy has changed, that until the point he invokes his right to a lawyer, which I believe occurs at two hours, twenty-seven minutes, thirteen seconds, somewhere thereabout, with the language I read.
So I am not waiving after that any of the objections I made earlier to the hearsay, the improper identification, the improper credibility opinion of the officer, and that sort of thing. And that would basically include everything from two hours, twenty-seven minutes thirteen seconds through the end of the tape where the State wants it to stop.
So I want to make perfectly clear, I‘m not waiving those objections, but I am everything prior to the point in time that I‘m talking about.
The trial court noted the objections. The redacted statement was admitted into evidence, played for the jury, and stopped a couple of minutes after appellant wanted the statement to be stopped. When the statement was played for the jury, appellant objected to the place where he requested the recording to be stopped, and the trial court overruled the objection. No other objections were lodged while the jury viewed the statement.
Appellant has not preserved error regarding his appellate complaint. Although he made reference to an estimated seventy objections to parts of the recorded statement, he abandoned those objections and affirmatively waived them; all of those objections involved statements that had occurred before the 2:27:13 mark on the recorded statement. When a party creates an impression that he is abandoning an objection, the initial objection is insufficient to preserve error for appeal. See Purtell v. State, 761 S.W.2d 360, 366 (Tex.Crim.App.1988). The record does not reflect, and appellant has not cited in his appellate brief, any other evidentiary objections that he asserted to the custodial statement beyond the 2:27:13 mark on the recorded statement. See
The trial court‘s judgment is affirmed.
Court of Appeals of Texas, Houston (14th Dist.). June 11, 2013.