Young, Blake Worthington v. State

Affirmed and Memorandum Opinion filed February 12, 2004 Affirmed and Memorandum Opinion filed February 12, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00216-CR ____________ BLAKE WORTHINGTON YOUNG, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 915,917 M E M O R A N D U M   O P I N I O N Appellant Blake Worthington Young challenges his aggravated robbery conviction, contending the trial court erred by admitting into evidence his videotaped statement to police, which he alleges was obtained after a violation of his Sixth Amendment right to counsel. We affirm. I. Background The State filed a felony complaint with supporting affidavit alleging appellant committed the offense of aggravated robbery.[1] See Tex. Pen. Code Ann. '' 29.02, 29.03 (Vernon 2003). Appellant was arrested without incident the following day and taken to the police station. Before making any statements to police, appellant was placed in an identification lineup. After the lineup, appellant gave the police two statements, the latter of which was videotaped. Before trial, the court conducted a hearing outside the presence of the jury to determine whether the videotaped statement was admissible pursuant to article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 6 (Vernon Pamph. 2004). Officer Paul Reese of the Houston Police Department testified that he read appellant his rights from the Ablue card@[2] prior to each of the statements,[3] and appellant waived his rights. Appellant testified that, although he waived his constitutional rights before giving the videotaped statement, the officer told him giving the statement would help his case because witnesses already had identified him in the lineup. After the hearing, the trial court ruled that the statement was admissible and issued findings of fact and conclusions of law, stating that before and during the making of the videotaped statement, appellant Aknowingly, intelligently, and voluntarily waive[d] the rights set forth in Article 38.22 of the Texas Code of Criminal Procedure.@ Appellant then changed his plea from not guilty to guilty, and the jury assessed punishment at six years= confinement in the Texas Department of Criminal Justice, Institutional Division, and a fine of $6,000. II. Issue Presented In a single issue, appellant argues the trial court erroneously admitted his videotaped statement because appellant was denied his right to counsel under the Sixth Amendment to the United States Constitution. Specifically, appellant contends he should have received counsel prior to being placed in the pretrial identification lineup. He reasons that the subsequent videotaped statement to police was derived directly from this alleged violation of his Sixth Amendment rights and should have been excluded. III. Standard of Review We review a trial court=s evidentiary rulings for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the trial court=s decision was based on an evaluation of the credibility of witnesses, we will reverse its decision only if it was so clearly wrong as to lie outside the zone of reasonable disagreement. See id.; Salazar v. State, 38 S.W.3d 141, 153B54 (Tex. Crim. App. 2001). IV. Analysis As a threshold matter, we first address the State=s contention that appellant did not preserve error because his complaint on appeal does not comport with his complaint to the trial court during the pretrial hearing. To preserve error for appellate review, an appellant must make a complaint to the trial court by a timely request, objection, or motion that states the ground for the ruling sought with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1)(A). The record reflects that the trial court conducted a hearing outside of the jury=s presence to determine the voluntariness and admissibility of the videotaped statement. Under article 38.22 of the Texas Code of Criminal Procedure, if a question is raised regarding the voluntariness of an accused=s statement, the court must make an independent finding outside the jury=s presence to determine whether the statement was made under voluntary conditions. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 6.[4] During this pretrial hearing, the trial court heard testimony from Officer Robert Catlett, Officer Reese, and appellant. Appellant acknowledged that Officer Reese advised appellant of his constitutional rights, that he understood these rights, and that he waived these rights. He argued, however, that Officer Reese told him witnesses already had picked him out of a lineup and the best thing he could do to help his case was confess. Officer Reese denied making this statement. During closing statements at the pretrial hearing, defense counsel contended the videotaped statement (1) was not given freely and voluntarily because of the comment made by Officer Reese to appellant that the statement could help his case; and (2) was tainted because appellant testified that as he began to give the first oral statement, Officer Reese stopped him and stated that he needed to read the Ablue card@ first. At the punishment phase of trial, defense counsel stated he had Ano objection@ when the State offered the videotaped statement into evidence. On appeal, appellant claims his Sixth Amendment right to counsel was violated because he was not provided counsel before the pretrial identification lineup. He asserts that his videotaped statement after the identification lineup was derived directly from this violation. The trial court was not placed on notice that appellant was alleging a Sixth Amendment violation in addition to the arguments articulated at the pretrial hearing. See Ripkowski v. State, 61 S.W.3d 378, 386 (Tex. Crim. App. 2001) (finding no preservation of error when appellant failed to articulate to the trial court his Sixth Amendment claim regarding failure to inform counsel of existence and/or subject of interview). Because the argument raised on appeal does not comport with the arguments made to the trial court, appellant has failed to preserve this issue for appellate review. See Tex. R. App. P. 33.1(a)(1)(A); Ripkowski, 61 S.W.3d at 386. Even if appellant had preserved error, his argument lacks merit. In support of his contention, appellant cites a San Antonio Court of Appeals case for the proposition that failure to provide counsel at a pretrial identification and failure to exclude evidence derived directly from the violation is subject to a harm analysis for constitutional error. See Devis v. State, 18 S.W.3d 777, 784 (Tex. App.CSan Antonio 2000, no pet.). However, appellant does not contend in this appeal that the prosecution supported or buttressed a later in-court identification by any reference to the pretrial identification or that an in-court identification was the fruit of an earlier identification, which is what led the court to conduct a harm analysis in Devis. See id. at 783B84. Instead, appellant claims the videotaped statement made after the pretrial identification lineup is somehow tainted by an alleged violation of his Sixth Amendment right to counsel at the pretrial lineup. The Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, guarantees the right to assistance of counsel at or after the time that adversary judicial proceedings (including formal charge, preliminary hearing, indictment, information, or arraignment) have been initiated against a person. Texas v. Cobb, 532 U.S. 162, 167B68 (2001); United States v. Gouveia, 467 U.S. 180, 187B88 (1984). The right extends to all Acritical stages@ of the criminal proceeding, not just the actual trial. Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim. App. 1999). The point at which adversary judicial proceedings begin is a matter of state law. Id. But it is not entirely clear under Texas law whether the filing of a felony complaint is sufficient. See Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994) (declining to hold that filing of felony complaint triggered Sixth Amendment protections but indicating such a result was Aat least consistent with, if not dictated by@ U.S. Supreme Court precedent); see also Barnhill v. State, 657 S.W.2d 131, 132 (Tex. Crim. App. 1983) (finding by two-judge panel that Sixth Amendment right to counsel attached upon filing of felony complaint with magistrate). Even if adversary judicial proceedings had begun with the filing of the felony complaint and, therefore, appellant=s Sixth Amendment right had attached, he waived this right before giving the videotaped statement that is the subject of this appeal. If an accused is interrogated after the right to counsel has attached, and a statement obtained, the police may not use that statement against the accused unless counsel was present or the accused waived the right to counsel when the statement was obtained. See Brewer v. Williams, 430 U.S. 387, 399B404 (1977). The burden is on the State to prove such a waiver was made voluntarily, knowingly, and intelligently. Patterson v. Illinois, 487 U.S. 285, 292B93 (1988). Waiver is shown as a matter of law with regard to pretrial questioning if the accused (1) who has not yet retained or been appointed counsel; (2) decides voluntarily not to rely on his right to counsel; and (3) that decision is made with the understanding that he could remain silent and request a lawyer and that the State could use any statement he gave against him. Patterson, 487 U.S. at 297; Robinson v. State, 851 S.W.2d 216, 224 (Tex. Crim. App. 1991). Here, the record indicates that appellant did not request appointed counsel until the probable cause hearing on June 25, 2002, the day after the videotaped statement was made. Nor does appellant contend he requested counsel before that time. The Ablue card@ Officer Reese read before appellant=s videotaped statement provided that (1) appellant had the right to remain silent; (2) any statement he made could be used against him at trial; (3) appellant had the right to have an attorney present prior to and during questioning; (4) an attorney could be appointed to advise appellant prior to and during questioning; and (5) appellant had the right to terminate the interview at any time. Appellant admitted at the pretrial hearing that Officer Reese read these admonitions to him from the Ablue card,@ that appellant understood his rights, and that he waived those rights before making the videotaped statement. The warnings sufficiently informed appellant of his Sixth Amendment right to counsel before he made the statement in question. See Patterson, 487 U.S. at 296 (stating Aan accused who is admonished with the warnings prescribed by this Court in Miranda[5] . . . has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one@). Therefore, the trial court did not err when it found in its conclusions of law that appellant Aknowingly, intelligently, and voluntarily waive[d] the rights set forth in Article 38.22 of the Texas Code of Criminal Procedure . . .@ before giving the videotaped statement. As a result, this court cannot say the trial court=s decision to admit the statement was so clearly wrong as to lie outside the zone of reasonable disagreement. Accordingly, we overrule appellant=s sole issue and affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed February 12, 2004. Panel consists of Justices Edelman, Frost, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The record indicates the grand jury indicted appellant on the same charge one month later. [2] A copy of the Ablue card@ is included in the record on appeal. It states: 1. You have the right to remain silent and not make any statement at all and that any statement you make may be used against you and probably will be used against you at your trial; 2. Any statement you make may be used as evidence against you in court; 3. You have the right to have a lawyer present to advise you prior to and during any questioning; 4. If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning; 5. You have the right to terminate this interview at any time. [3] Although the contents of the videotape are not in the record before this court, Officer Reese=s testimony indicates that he can be heard reading appellant his rights on the videotape and appellant does not contend that this did not happen. [4] Although the State characterizes this hearing as one in response to a motion to suppress, the record in this case does not contain a motion to suppress, nor is there an indication that appellant filed one. Before voir dire, defense counsel indicated there were no pretrial motions in response to the trial court=s inquiry on the subject. [5] Article 38.22 encompasses the Miranda warnings, and includes an additional right to terminate the interview at any time. See Penry v. State, 903 S.W.2d 715, 747 n.29 (Tex. Crim. App. 1995).