Coyle Thomas Jennings v. State

Affirmed and Memorandum Opinion filed June 4, 2009 Affirmed and Memorandum Opinion filed June 4, 2009. In The Fourteenth Court of Appeals _______________ NO. 14-08-00123-CR _______________ COYLE THOMAS JENNINGS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1100488 M E M O R A N D U M   O P I N I O N A jury found appellant, Coyle Thomas Jennings, guilty of aggravated robbery and assessed punishment at eight years= confinement. The trial court sentenced appellant accordingly. In two issues, appellant argues the trial court erred in not suppressing a video recording of a canine-scent-identification procedure because (1) counsel was not present at the procedure and (2) the procedure was impermissively suggestive. Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Factual and Procedural Background On a December evening a few days after Christmas 2006, Friday Thomas, his wife, Sandra Walker, their twelve-year-old son, Xien Thomas, and Sandra=s twenty-seven-year-old son, Narada Walker, were at their home in west Harris County. Narada was on leave from Moody Air Force Base in Georgia. Friday=s seventeen-year-old son, Phillip, sometimes stayed at the house, but was not present that evening. Friday and Sandra had gone upstairs to bed. Xien and Narada were playing video games in the den while they awaited the arrival of Narada=s friends. Around eight o=clock, someone started ringing the doorbell and knocking at the door. Thinking it was his friends, Narada opened the door. He saw two males pointing guns at him. They were wearing dark hoodies and gloves and had ski masks covering their faces. One was about five feet eight inches tall; the other, about six feet one inch tall. At this point, Friday was upstairs, just outside the bedroom. He saw a hand with a gun and heard a voice tell Narada, A[T]his is no kidding. This is a robbery.@ Friday left through an upstairs window and went to a neighbor=s house, where he and the neighbor called 911 for a police emergency. The two masked men entered the house and ordered Narada and Xien to sit on the couch. According to Sandra, the taller man then went upstairs, placed a gun against Sandra=s head, and ordered her downstairs. The taller man gave the shorter one his gun, and while the shorter man held Narada, Xien, and Sandra at gunpoint, the taller man went through the house collecting items as the shorter man directed him. The shorter man kept insisting Phillip had told them Friday had a briefcase filled with money in the house. The men collected car keys and wallets and eventually found a briefcase. When they attempted to flee through the front door, they saw officers waiting for them. They slammed the front door, then removed their masks. Sandra recognized the shorter man as Phillip=s friend, whom she knew as AG.@ G had been to their house on several occasions, and Sandra had last seen him in June 2006. G went upstairs with Sandra and Xien. The taller man then forced Narada to go outside and tell the police the men inside were friends. With the taller man behind him pointing a gun, Narada opened the door and yelled to the police that the men were just his friends. The police commanded Narada to place his hands on his head, backed him to a car, and handcuffed him. Eventually, Friday and Narada convinced the police Narada was not one of the robbers. Meanwhile, the two robbers fled through a patio door to the back yard and were not found that night. After the robbers left, Sandra grabbed Xien and ran outside, where she told Friday and the officers G was one of the robbers. Harris County Sheriff=s Office Detective Scott Ashmore investigated the case and learned appellant used the street name AG.@ Ashmore compiled a photographic array with appellant=s picture. He showed it to Sandra on January 12, 2007; and, without hesitation, she identified appellant=s photograph as that of one of the robbers. At Sandra=s request, Ashmore did not interview Xien or ask him to view the photographic array. Ashmore sent the photographic array by email to Narada in Georgia, but Narada did not identify appellant. On January 16, 2007, appellant was charged with armed robbery and arrested. On January 21, 2007, Ashmore visited Sandra and Friday=s home and obtained a scent sample from the car keys and the patio door handle. He then obtained a scent sample from appellant.[1] On January 22, 2007, the court appointed counsel to represent appellant. On January 29, 2007, Ashmore took the scent samples to Deputy Keith Pikett, a canine handler for the Fort Bend County Sheriff=s Office. Pikett and his three bloodhounds conducted a scent identification using the samples taken from appellant, the keys, and the door handle. The procedure was videotaped. Ashmore assisted and also narrated the video, which showed six numbered cans set up across a field and sidewalk. Ashmore first placed the scent from the keys in can three and scents from non-suspects in the other five cans. In turn, Ashmore then allowed each dog to sniff appellant=s scent, and Pikett walked that dog down the line of cans, saying Acheck@ as the dog passed each can. The first dog did not Ahit@ on a can until Pikett walked him past the cans a second time. The other two dogs hit on can three on their first attempts. Ashmore and Pikett then repeated the procedure, this time putting the scent from the door handle in can four. Each of the dogs hit on can four on the first try. After at least three of the hits, Pikett praised or patted the successful dog. After each successful trial, Ashmore commented that the dog Ahit@ on the particular can. At the conclusion, he observed that each dog had its individual manner of alerting on the cans. On April 2, 2007, a grand jury indicted appellant. Before trial, appellant filed a AMotion to Suppress Video Taken 1/29/07 of Bloodhounds Allegedly Alerting on Scent Pads.@ Appellant argued the procedure was the equivalent of a live lineup and he had been deprived of his Sixth Amendment right to counsel at the procedure. At the motion hearing, appellant additionally argued the procedure was Aimproperly suggestive,@ but did not cite any constitutional right allegedly violated. The trial court denied the motion. Trial was to a jury. Friday, Narada, Xien, Sandra, Pikett, Ashmore, the three officers initially dispatched to the robbery, and the officer who conducted a canine search of the area testified for the State. The State also played the video of the canine identification with Pikett explaining events as they appeared on the tape. Appellant called a single witness. Cherika Cole, appellant=s brother=s fiancé, testified appellant had been at her apartment Apretty much the entire time@ on the day of the robbery. Cole first conveyed this information after appellant=s investigator indicated that something was happening and Cole and others needed to write a statement. The jury found appellant guilty. II. Discussion In two issues, appellant contends the trial court erred in denying his motion to suppress the video of the canine-scent-identification procedure. We apply a bifurcated standard in reviewing a trial court=s ruling on a motion to suppress evidence. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, we must give great deference to the trial court=s findings of historical facts as long as the record supports the findings, especially when the findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We afford the same amount of deference to the trial court=s ruling on Amixed questions of law and fact@ when those issues turn on an evaluation of witnesses= credibility and demeanor. Id. When rulings on Amixed questions of law and fact@ do not turn on an evaluation of credibility and demeanor, we review the rulings de novo. Id. If the trial court=s decision is correct on any theory of law applicable to the case, we must sustain the decision. State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000). A. Issue One: Right to Counsel In issue one, appellant contends he was denied his Sixth Amendment right to counsel during the scent-identification procedure. The Sixth Amendment guarantees a criminal defendant the assistance of counsel at the initiation of adversary proceedings against him and at any subsequent Acritical stage@ of the proceedings. Estelle v. Smith, 451 U.S. 454, 469B70 (1981); Thompson v. State, 93 S.W.3d 16, 23 (Tex. Crim. App. 2001). Even if one assumes adversarial proceedings commenced with issuance of the complaint in this case,[2] neither collection of the defendant=s scent sample nor the recorded canine identification, constituted a critical stage. See Merritt v. State, 76 S.W.3d 632, 634 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (A[A] videotape of a lineup is similar to a photo array, which does not implicate the Sixth Amendment right to counsel.@); Rose v. State, 711 S.W.2d 89, 91B92 (Tex. App.CDallas 1986, no pet.) (holding taking of blood and saliva samples for DNA testing not critical stage of proceedings). Appellant did not have a right to counsel during the scent-identification procedure. Accordingly, we overrule his first issue. B. Suggestiveness of the Procedure In issue two, appellant contends the procedure was Aunconstitutionally suggestive@ in violation of his due process rights. As discussed below, appellant has not preserved a complaint of constitutional error; this court has previously upheld the admissibility of similar evidence under Texas Rule of Evidence 702; and error, if any, in admitting the evidence was harmless. In the trial court, appellant objected to the following aspects of the procedure as rendering the procedure Aimproperly suggestive@: (1) the handler=s knowledge, after the first dog hit on a can, of the target scent=s location; (2) Ashmore=s commentary on the tape, directing the audience=s attention to the fact the dog hit on a particular can; and (3) Ashmore=s proximity to the handler when Ashmore was commenting on the results. Appellant, however, did not argue the procedure violated any constitutional right, did not cite a state or federal constitutional provision, and did not cite the trial court to any case law. Appellant has failed to preserve the constitutional dimension of his objection to the evidence. See Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990) (AGenerally, error must be presented at trial with a timely and specific objection, and any objection at trial which differs from the complaint on appeal preserves nothing for review.@); Rios v. State, 263 S.W.3d 1, 6B7 (Tex. App.CHouston [14th Dist.] 2005, pet. dism=d) (holding hearsay objection insufficient to preserve claim of confrontation clause violation). Appellant also did not, and does not in this court, refer to any rule of evidence warranting exclusion of the evidence. This court has held that similar testimony is admissible under Texas Rule of Evidence 702 and Nenno v. State, 970 S.W.2d 549, 560B61 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). See Winston v. State, 78 S.W.3d 522, 527B29 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Finally, even if we assume appellant=s claim was sufficient to preserve constitutional error and that the trial court erred in admitting the video, we conclude any error was harmless beyond a reasonable doubt. The video is just less than twelve minutes long. The first attempt it shows is unsuccessful. The dogs are the focal point of the video; and the relationship between scent samples, purported canine identification of those samples, and appellant=s commission of the robbery arguably would strike a jury as attenuated, in light of undisputed evidence that appellant had been in the victim=s house on other occasions. In contrast, Sandra positively, consistently, and unequivocally identified appellant as the shorter of the robbers. Sandra and Xien were with the shorter robber for most of the time after the men removed their masks. Narada=s failure to identify appellant is readily explained by his having not been with him during that time. The only conflicting evidence was Cherika Cole=s testimony that appellant was with her when the robbery occurred, but Cole=s testimony was suspect given her relationship to appellant and the circumstances under which she first told her story. Finally, during closing argument the prosecutor told the jurors she was not asking them Ato convict somebody of aggravated robbery based on a scent pad lineup. I=m not asking that. I brought that to show you, this is something more, in addition to Sandra Walker=s identification. . . . This is further investigation that the police did. Something to show you more.@ Thus, the State did not significantly rely on the video or its contents. Assuming, without deciding, appellant preserved the constitutional error of which he complains on appeal, and that error did occur, we conclude Abeyond a reasonable doubt that the error did not contribute to the conviction or punishment.@ Tex. R. App. R. 44.2(a). Accordingly, we overrule appellant=s second issue. Having overruled appellant=s two issues, we affirm the judgment. /s/ Charles W. Seymore Justice Panel consists of Justices Seymore, Brown, and Sullivan. Do Not Publish C Tex. R. App. P. 47.2(b). [1] He obtained the samples from the keys and door handle by rubbing them with a gauze swab. He obtained appellant=s sample by having appellant rub the swab between his hands. [2] See Gentry v. State, 259 S.W.3d 272, 276B77 (Tex. App.CWaco 2008, pet. ref=d) (discussing split of Texas authority on whether right to counsel attaches with filing of criminal complaint or issuance of the indictment).