Marvin Dewayne Grant v. State

Affirmed and Memorandum Opinion filed May 18, 2004 Affirmed and Memorandum Opinion filed May 18, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-02-01293-CR ____________ MARVIN DEWAYNE GRANT, Appellant V. THE STATE OF TEXAS, Appellee ____________________________________________________________ On Appeal from the 56th District Court Galveston County, Texas Trial Court Cause No. 01CR2102 ____________________________________________________________ M E M O R A N D U M   O P I N I O N A jury found appellant, Marvin Dewayne Grant, guilty of murder and assessed punishment at life imprisonment. On appeal, appellant contends: (1) he received ineffective assistance of counsel, and (2) the trial court erred in admitting incriminating statements he made to police officers. We affirm. I. Factual Background Appellant, a passenger in a pick-up truck, pursued David Scott Gilbert to an Economy Inn in Galveston, believing Gilbert had stolen money from him. The desk clerk at the Economy Inn, Gregory Sloan, testified in a videotaped deposition that a frightened-looking man, Gilbert, entered the lobby, yelling that people were trying to kill him. Within a short time, appellant also entered the Economy Inn and demanded twenty dollars from Gilbert. A fight ensued and Gilbert was stabbed during the altercation.[1] After Gilbert fell to the floor, appellant exited the lobby and drove off with his friends in the pick-up truck. Sloan called 9-1-1. When police arrived at the Economy Inn, they found Gilbert covered with blood on the lobby floor. He had been stabbed four times. Less than two hours later, at the University of Texas Medical Branch (AUTMB@) John Sealy Hospital emergency room, Gilbert died from a neck wound that severed his carotid artery. Appellant was also injured in the fight. The driver of the pick-up truck drove appellant to his home where they picked up appellant=s father, and then drove them to UTMB. After appellant was dropped off, police stopped the truck, searched it, and obtained blood samples later analyzed to match both the deceased=s and appellant=s blood. Appellant=s father consented to a search of his home, where a bloody knife was found hidden in the garage. The knife was also later found to have both appellant=s and the deceased=s blood on it. Police arrested appellant at UTMB. II. Discussion A. Ineffective Assistance of Counsel In his first issue, appellant contends he received ineffective assistance of counsel because his trial counsel agreed to preserve and present Sloan=s testimony in a videotaped deposition.[2] He argues that the State did not have a right to take the deposition either under the Texas Constitution[3] or the Code of Criminal Procedure,[4] and therefore, his constitutional right to confront the witnesses against him was denied. Appellant asserts that the videotaped deposition constituted the only eyewitness testimony to the stabbing and without this evidence, he would not have been convicted. Therefore, he argues his attorney=s failure to object to the taking of the videotaped deposition and his failure to move to exclude this evidence resulted in ineffective assistance of counsel. The standard for appellate review of the effectiveness of counsel is dictated by the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984). Under the first prong, appellant must show that his counsel=s performance was deficient and fell below the objective standard of professional norms. Strickland, 466 U.S. at 687; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Under the second prong, appellant must show that this deficient performance prejudiced his defense and there is a reasonable probability that, but for his counsel=s errors, the result of the proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A reasonable probability is one sufficient to undermine confidence in the outcome. Id. In reviewing appellant=s claims, we apply a strong presumption that counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To defeat this strong presumption of reasonable professional assistance, appellant has the burden of presenting evidence illustrating why trial counsel did what he did. See id. Appellant cannot meet this burden when counsel=s actions may have been based on tactical decisions and the record does not specifically focus on the reasons for the conduct of trial counsel. See Bone, 77 S.W.3d at 830. This kind of record is best developed in a hearing on an application for a writ of habeas corpus or in a motion for new trial. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curiam) (habeas corpus); Freeman v. State, 125 S.W.3d 505, 506B07 (Tex. Crim. App. 2003) (motion for new trial). When there is no evidence of counsel=s reasons for the challenged conduct, an appellate court presumes a strategic motivation if one can be imagined, and will not conclude that counsel=s action was deficient unless the conduct was so outrageous that no competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d at 814. Here, there is nothing in the record to overcome the presumption that counsel=s conduct was reasonable and professional. Appellant did not raise the issue of ineffective assistance of counsel in his motion for new trial. When the trial record is incomplete and does not provide enough evidence on which to base a reversal, we will refrain from speculating about the reasons underlying defense counsel=s decisions. See Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d); see also Freeman, 125 S.W.3d at 506B07; Bone, 77 S.W.3d at 833 n.13, 836. Because appellant has failed to establish that his trial counsel=s representation fell below the objective standard of professional norms to satisfy the first prong of the Strickland test, we overrule appellant=s first issue.[5] B. Admission of Oral Statements Appellant argues in his second issue that the trial court erred in allowing police officers to testify about his oral statements. He claims that because the statements were the result of custodial interrogation and not recorded in compliance with article 38.22, section 3 of the Texas Code of Criminal Procedure, they were inadmissible.[6] 1. Standard of Review We review a trial court=s ruling on the admissibility of evidence using an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). An abuse of discretion occurs if a trial judge acts arbitrarily and unreasonably without any reference to guiding principles of law. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh=g). We uphold the trial court=s ruling if it is within the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153B54 (Tex. Crim. App. 2001). In analyzing the admissibility of the statements, we consider the Texas Code of Criminal Procedure which provides in pertinent part: ANothing in this article precludes the admission of a statement made by the accused . . . that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation . . . .@ Tex. Code Crim. Proc. art. 38.22, ' 5. 2. Analysis Police officers testified at trial that appellant made three oral, self-incriminating statements while waiting to be treated at UTMB. Applying our standard of review and considering article 38.22, section 5 of the Texas Code of Criminal Procedure, we consider each of the three statements made. Appellant=s first statement was made in the presence of Officer Juan Huerta. Huerta, a UTMB police officer, approached appellant after being informed he had been dropped off in a truck fitting the description of a vehicle sought by Galveston police. Huerta asked appellant to sit down and wait because Galveston police were on their way to talk to him. While appellant waited, hospital personnel approached him and asked how he hurt his hand. Huerta testified appellant told the hospital employee that Gilbert had tried to stab him and that he stabbed Gilbert in self-defense. Appellant claims this oral statement is inadmissible because he was in custody and had not been given his Miranda rights. An individual is in custody only if under the circumstances a reasonable person would believe that his or her freedom of movement has been curtailed to the degree associated with a formal arrest as opposed to an investigative detention. Dowthitt v. State, 931 S.W.2d 244, 254B55 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528B30 (1994)). Relevant factors in determining whether a person was in custody at the time a statement was made include whether, at that time, there was probable cause to make an arrest, whether the suspect was the focus of the investigation, and the objective manifestations of the officer=s subjective belief. Dowthitt, 931 S.W.2d at 254.[7] In contrast, an investigative detention is a temporary and narrowly tailored investigation directed at determining a person=s identity or maintaining the status quo while officers obtain more information. Ramirez, 105 S.W.3d at 739; Dean v. State, 938 S.W.2d 764, 768 (Tex. App.CHouston [14th] 1997, no pet.) (citing Comer v. State, 754 S.W.2d 656, 657 (Tex. Crim. App. 1986)). The ultimate inquiry is whether there was a formal arrest or restraint on freedom associated with a formal arrest. Stansbury, 511 U.S. at 322. Here, we find the circumstances surrounding appellant=s first statement constitute an investigative detention, rather than a formal arrest. See, e.g., Rhodes v. State, 945 S.W.2d 115, 117B18 (Tex. Crim. App. 1997) (discussing the distinction between arrest and detention); Woods v. State, 970 S.W.2d 770, 775 (Tex. App.CAustin 1998, pet. ref=d) (same). Specifically, Huerta was not questioning appellant, he did not discuss the offense with him, or advise appellant that he was a suspect. Huerta had not placed appellant under arrest and he was free to leave, if he chose to do so. Appellant was not handcuffed, nor had he requested and been denied the opportunity to leave. Also, we find no evidence in the record that appellant believed his movements were restricted in any manner. Because appellant was not in custody, his oral statement was not the result of a custodial interrogation. See Adami v. State, 524 S.W.2d 693, 699 (Tex. Crim. App. 1975) (holding remarks volunteered by appellant to police while he was not in custody or under arrest were admissible). Moreover, even if appellant were in custody, the statement he made in Huerta=s presence was in response to a question by hospital personnel, not in response to an inquiry from a police officer. For this reason also, it was not the result of custodial interrogation. See Arnold v. State, 659 S.W.2d 45, 48 (Tex. App.CHouston [14th Dist.] 1983, no pet.) (holding statements made to a nurse were not the result of custodial interrogation because the nurse was not a police officer nor was she acting at the request of the police officer to elicit incriminating information); Lavigne v. State, No. 14-98-00856, 2000 WL 490702, at *4 (Tex. App.CHouston [14th Dist.] Apr. 27, 2000, no pet.) (not designated for publication) (holding that statements made to counselor at hospital were admissible because not result of custodial interrogation). In addition, merely because Huerta overheard appellant=s statement does not render it inadmissible. See Coronado v. State, Nos. 01-99-00912B14, 2000 WL 730682, at *3 (Tex. App.CHouston [1st Dist.] June 8, 2000, pet. ref=d) (not designated for publication) (holding officer=s testimony about overheard statements made to hospital personnel were admissible). In sum, appellant=s statement made in Huerta=s presence was admissible and the trial court did not err in admitting it. See Tex. Code Crim. Proc. art 38.22, ' 5; Arnold, 659 S.W.2d at 48. Appellant also made an oral statement to Galveston police sergeant Andrew McLane that he claims should have been excluded. McLane approached appellant and asked his name, but appellant did not respond. McLane then poked appellant on the shoulder and asked again. McLane testified that appellant responded: A[W]hy are you poking on me. I am the victim here. Yes, he came at me with the knife and took the knife away from him and I stabbed the mBfB four or five times.@ McLane immediately handcuffed appellant and advised him of his Miranda rights. Inquiring about a suspect=s name is not a custodial interrogation. Townsend v. State, 813 S.W.2d 181, 186 (Tex. App.CHouston [14th Dist.] 1991, pet. ref=d); Burns v. State, 807 S.W.2d 878, 882 (Tex. App.CCorpus Christi 1991, pet. ref=d). An interrogation involves words or actions by law enforcement officers which they should have known would elicit an incriminating response from the suspect; however, general and routine questions do not constitute interrogation. Burns, 807 S.W.2d at 882; Jones v. State, 795 S.W.2d 171, 174 n.3 (Tex. Crim. App. 1990). Therefore, because appellant=s statement to McLane was not a result of custodial interrogation, it was not necessary to fulfill the requirements of article 38.22, section 3 for admission of this oral statement. See Tex. Code Crim. Proc. art. 38.22, '' 3, 5. Finally, the third statement appellant argues should have been excluded was made to Galveston police officer Javiar Rosas. Rosas arrived at UTMB a couple of hours after appellant made his statement to McLane. During direct examination, and without objection, Rosas testified that appellant was rambling and stated, AI killed that mC fC.@ Although appellant did not object to this statement, during the course of Rosa=s cross-examination, appellant established that he was in custody at the time this statement was made. Outside the hearing of the jury, appellant moved for a mistrial claiming that when Rosas testified to the statement on direct examination, appellant was unaware the statement was made while he was in custody. At that point, he also objected to the statement on the basis that it was hearsay. The court overruled his motion. The State argues appellant failed to make a timely objection and therefore, failed to preserve the issue for our review. Tex. R. App. Proc. 33.1; Palomo v. State, 925 S.W.2d 329, 338 (Tex. App.CCorpus Christi 1996, no pet.). Because appellant did not object to this testimony when it was elicited by the State, we agree.[8] However, in the interests of justice, we consider the merits of appellant=s argument. Undoubtedly, because appellant had been read his rights and handcuffed, he was in custody at the time Rosas came into contact with him. See Miranda, 384 U.S. at 444. However, the statement appellant made to Rosas was admissible under article 38.22, section 5 of the Texas Code of Criminal Procedure, because the statement was not the result of custodial interrogation. According to the evidence presented at trial, Rosas did not question appellant. Appellant was merely rambling and speaking to anyone who would listen. Appellant has failed to prove that there was an interrogation by an officer that elicited these remarks. The record demonstrates that appellant=s statement was not a product of interrogation or in response to an inquiry from an officer. See Sanchez v. State, 589 S.W.2d 422, 423 (Tex. Crim. App. 1979); Cannon v. State, 807 S.W.2d 631, 634 (Tex. App.CHouston [14th Dist.] 1991, no pet.). Accordingly, the trial court did not err in overruling the objection to the admissibility of the statement. In conclusion, we find the trial court did not err in admitting appellant=s oral statements. Accordingly, we overrule appellant=s second issue. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed May 18, 2004. Panel consists of Justices Edelman, Frost, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Details of the fight were disputed. Although Sloan testified he never saw a weapon, at trial appellant admitted stabbing Gilbert with a knife, but claimed it was in self-defense. [2] Sloan was unable to testify at trial because he was suffering from a terminal illness and had moved outside the county. At Sloan=s deposition, defense counsel cross-examined Sloan at length. Additionally, appellant was present when Sloan=s deposition was taken. Without objection by appellant=s trial counsel, Sloan=s videotaped deposition was played to the jury at trial. [3] The Texas Constitution provides: In all criminal prosecutions the accused . . . . shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide . . . . Tex. Const. art. I, ' 10 (emphasis added). [4] The applicable portion of article 39.01 of the Texas Code of Criminal Procedure states: When an examination takes place in a criminal action before a magistrate, the defendant may have the deposition of any witness taken by any officer or officers named in this Chapter. The defendant shall not use the deposition for any purpose unless he first consent that the entire evidence or statement of the witness may be used against him by the State on the trial of the case, subject to all legal objections. The deposition of a witness duly taken before an examining trial or a jury of inquest and reduced to writing and certified according to law where the defendant was present when such testimony was taken, and had the privilege afforded of cross-examining the witness, or taken at any prior trial of the defendant for the same offense, may be used by either the State or the defendant in the trial of such defendant=s criminal case under the following circumstances: . . . that by reason of age or bodily infirmity, such witness cannot attend. Tex. Code Crim. Proc. art. 39.01. [5] Assuming for purposes of argument that trial counsel=s performance was deficient, appellant would not have satisfied the second prong of Strickland. Even without Sloan=s videotaped deposition, the result of the trial would likely have been the same because the evidence against appellant was overwhelming. First, an eyewitness other than Sloan placed appellant at the Economy Inn at the time of the stabbing. Second, the murder weapon was found at appellant=s father=s home. DNA analysis showed that the knife=s blade and handle contained a mixture of both appellant=s and Gilbert=s blood. Furthermore, DNA analysis showed a combination of appellant=s and Gilbert=s blood on appellant=s shoe and on the interior window and door of the pick-up truck. [6] No oral statement of an accused made as a result of custodial interrogation shall be admissible against him unless: (1) an electronic recording is made of the statement; (2) the accused is given the requisite warnings prior to the statement; (3) the recording device was capable of making an accurate recording and the recording was not altered; (4) all voices on the recording are identified; and (5) the attorney representing the accused receives a copy no later than twenty days before the proceeding. Tex. Code Crim. Proc. art. 38.22, ' 3(a)(1)B(5). [7] Four general situations may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when a law enforcement officer tells the suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Dowthitt, 931 S.W.2d at 255; see Crivello v. State, 4 S.W.3d 792, 804 (Tex. App.CTexarkana 1999, no pet.); Hutto v. State, 977 S.W.2d 855, 858 (Tex. App.CHouston [14th Dist.] 1998, no pet.). In the first three situations, the restriction on freedom of movement must amount to the degree associated with an arrest, as opposed to an investigative detention. Id. In the fourth situation, the officer=s knowledge of probable cause to arrest must be manifested to the suspect. Dowthitt, 931 S.W.2d at 255; Ramirez v. State, 105 S.W.3d 730, 739 (Tex. App.CAustin 2003, no pet.). [8] Even if the issue had been preserved, the admission of inadmissible evidence can be rendered harmless if the same or similar evidence is introduced without objection elsewhere during trial. See Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989).