Yamar Sanchez v. State

Affirmed and Memorandum Opinion filed March 31, 2009 Affirmed and Memorandum Opinion filed March 31, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-07-01067-CR ____________ YAMAR SANCHEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 23rd District Court Brazoria County, Texas Trial Court Cause No. 52,756 M E M O R A N D U M   O P I N I O N A jury convicted appellant Yamar Sanchez of possession of a deadly weapon in a penal institution and sentenced him to eight years= imprisonment. In four issues, appellant challenges the legal and factual sufficiency of the evidence, and claims the trial court erred by admitting statements he allegedly made to prison officials and refusing to declare a mistrial at punishment after the State attempted to connect him to gang activity. We affirm. I. Background On December 14, 2005, Sergeant Patrick Mora conducted a routine strip-search of inmates at the Texas Department of Criminal Justice=s (TDCJ=s) Darrington Unit. At trial, Sergeant Mora testified that once he began searching the inmates, he noticed appellant (an inmate at the unit) go to the back of the line. When Sergeant Mora reached him, appellant handed over his clothing but acted as if he was not going to give up his shoes, though doing so was normal procedure. Sergeant Mora requested appellant=s shoes and sensed something was wrong when appellant hesitated before handing them over. Sergeant Mora found a sharpened piece of steel with a plastic pen cap for a handle located inside a glove hidden underneath the insole of one of appellant=s shoes.[1] Sergeant Mora handcuffed appellant and delivered the weapon to his supervisor. Appellant gave a different account of the incident. He claimed he was wearing boots without insoles when Sergeant Mora searched him, and that Sergeant Mora did not find the weapon in appellant=s shoe, but rather found it inside a plastic glove he told appellant to pick up. At trial, appellant denied ever seeing the weapon before Sergeant Mora found it in the glove, and denied ever admitting owning the weapon. In rebuttal, Sergeant Mora testified that after he found the weapon, appellant spontaneously admitted owning it for protection.[2] Sergeant Mora=s testimony suggests this admission came after he handcuffed appellant. Ernie Miles, appellant=s counsel substitute,[3] also testified over objection that appellant admitted at a disciplinary hearing to possessing the weapon for protection. Miles further testified that appellant never told her Sergeant Mora had him pick up a plastic glove containing the weapon. The jury found appellant guilty of possession of a deadly weapon in a penal institution. At punishment, the State attempted to link appellant to the activities of Security Threat Groups (commonly referred to as Agangs@) through the testimony of Sergeant Fernando Briseno. The trial court sustained appellant=s objection to Sergeant Briseno=s testimony and instructed the jury to disregard the portion of his testimony concerning gangs, but denied appellant=s motion for mistrial. The jury sentenced appellant to eight years= imprisonment. This appeal followed. II. Analysis A. Sufficiency of the Evidence To sustain a conviction for the charged offense, the State was required to prove beyond a reasonable doubt that appellant (1) while confined in a penal institution, (2) intentionally or knowingly (3) possessed or concealed (4) a deadly weapon (5) therein. See Tex. Penal Code Ann. ' 46.10(a) (Vernon 2003). 1. Legal sufficiency of the evidence of appellant=s state of mind In his second issue, appellant challenges the legal sufficiency of the evidence to prove that his possession of the weapon was knowing or intentional. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Whether a defendant possessed the state of mind required to commit the charged offense must ordinarily be established by circumstantial evidence, which may include the defendant=s words and conduct. Guevara v. State, 152 S.W.3d 45, 49B50 (Tex. Crim. App. 2004). Appellant contends there is no evidence that his possession of the weapon was knowing or intentional, other than his admissions to Miles and Sergeant MoraCwhich he claims were inadmissible, and therefore presumably outside the bounds of our review. But in a legal sufficiency review, we consider all the record evidence, regardless of its admissibility. Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006). The evidence of appellant=s evasive behavior during the search, and his subsequent admissions to Miles and Sergeant Mora, provided a legally sufficient basis for the jury to infer that appellant=s possession of the weapon was knowing or intentional, and find that element of the charged offense beyond a reasonable doubt. See Guevara, 152 S.W.3d at 49B50; see also Clewis, 922 S.W.2d at 133. We overrule appellant=s second issue. 2. Factual sufficiency of the evidence In his first issue, appellant contends the evidence is factually insufficient to support the jury=s verdict. In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury=s resolution of that conflict, and we do not intrude upon the fact-finder=s role as the sole judge of the weight and credibility of witness testimony. See id. at 417; Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The fact-finder may choose to believe all, some, or none of the testimony presented. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); In re A.B., 133 S.W.3d 869, 872 (Tex. App.CDallas 2004, no pet.). In our review, we discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict, Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003), and if we determine the evidence is factually insufficient, we must explain in exactly what way we perceive the conflicting evidence to greatly preponderate against conviction. Watson, 204 S.W.3d at 414B17. Appellant complains of inconsistencies between Sergeant Mora=s testimony and his prior reports and the implausibility of Mora=s testimony that appellant was walking normally prior to the search despite having a steel shank in his shoe. However, these complaints go mainly to Sergeant Mora=s credibility, an issue within the sole province of the jury. See Fuentes, 991 S.W.2d at 271. Similarly, appellant points to conflicts between his and Sergeant Mora=s account of the type of shoe appellant was wearing and whether the shoe Mora claims appellant was wearing was available to appellant. The mere fact that the witnesses= accounts conflict is an insufficient basis on which to overturn the jury=s verdict for factual insufficiency. See Watson, 204 S.W.3d 404 at 417. The jury was entitled to believe Sergeant Mora=s account and disbelieve appellant=s. See Chambers, 805 S.W.2d at 461; In re A.B., 133 S.W.3d at 872. Finally, appellant complains that the Office of the Inspector General (OIG) did not check the weapon for fingerprints, but OIG=s evidence officer testified such a check was unnecessary based on the size and texture of the weapon. Moreover, the testimony of Sergeant Mora sufficiently linked appellant to the weapon. Having neutrally reviewed the entire record, including the evidence highlighted by appellant, we find no objective basis for saying the jury=s verdict is clearly wrong or manifestly unjust. Accordingly, we conclude that the evidence is factually sufficient to support the verdict, and we overrule appellant=s first issue. B. Statements to Prison Officials In his third issue, appellant alleges the trial court erred in admitting statements he made to prison officials admitting he possessed the weapon. We review the trial court=s rulings on the admissibility of evidence for an abuse of discretion. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). We must affirm the trial court=s ruling if it is within the zone of reasonable disagreement. Id. Further, if we find that the admission was erroneous, we are to reverse the judgment of the trial court only if we find that appellant=s substantial rights were affected. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). If, however, after reviewing the record as a whole, we find fair assurance that the error did not influence the jury, or had but a slight effect, the error is harmless. Id. 1. Appellant=s admission to Sergeant Mora Sergeant Mora testified that appellant admitted owning the weapon after Sergeant Mora discovered it and placed him in handcuffs. Appellant contends that the statement was involuntary, and therefore inadmissible, because (1) as a matter of Acommon sense@ a handcuffed, incarcerated offender is compelled by outside influence to make such a statement and (2) he was compelled to make the statement by TDCJ=s requirement that offenders immediately comply with and obey the staff=s lawful instructions and orders, thus rendering the trial court=s admission of that evidence reversible error under Lykins v. State, 784 S.W.2d 32, 37 (Tex. Crim. App. 1990) (holding that an offender does not waive the privilege against self-incrimination by answering a TDCJ staff member=s questions when failure to do so would result in a penalty). See Tex. Dep=t of Crim. Justice, Correctional Insts. Div., Offender Orientation Handbook 23 (2004). Appellant=s first contention is apparently based on a definition of Avoluntary@ as Anot impelled by outside influence.@ Black=s Law Dictionary 1605 (8th ed. 2004). The Court of Criminal Appeals has identified three theories under which a criminal defendant may claim that an out-of-court statement was involuntary: (1) general involuntariness under articles 38.21 and 38.22 of the Code of Criminal Procedure; (2) violation of the standards set forth in Miranda v. Arizona, 384 U.S. 436 (1966), as expanded in article 38.22, sections 2 and 3 of the Code of Criminal Procedure; or (3) violation of the Due Process Clause. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). Although appellant does not cite relevant legal authority or otherwise specify which of these theories he asserts on appeal,[4] we will address his challenge under all three theories in the interest of justice. The second and third theories require a showing of some coercive law enforcement activity based upon an objective assessment of police behavior. Id. at 171. Appellant was incarcerated for a prior, unrelated offense. Appellant made the statement shortly after the weapon was discovered, and was not responding to questioning. The mere fact that appellant was handcuffed does not constitute interrogation, much less coercion. Cf. Rhode Island v. Innis, 446 U.S. 291, 301B02, 305 (1980) (handcuffing suspect and placing him in backseat of patrol car were acts merely attendant to arrest and custody, rather than interrogative). We therefore decline to hold that coercive law enforcement activity occurred under the circumstances presented here. Further, as to appellant=s contention based on Lykins, because he did not make the statement in response to questioning, and the record is devoid of any evidence that he was instructed or ordered to do so, we cannot say that the statement was compelled by the TDCJ=s compliance and obedience requirements. Appellant=s reliance on Lykins is therefore misplaced. See 784 S.W.2d at 37. The first theory does not require official coercion and focuses on the state of mind of the defendant, i.e. whether the statement was freely and voluntarily made without compulsion or persuasion. Oursbourn, 259 S.W.3d at 172. Courts have considered the following factors in determining whether statements are involuntary under articles 38.21 and 38.22: (1) the suspect was ill and on medication and that fact may have rendered his confession involuntary; (2) the suspect was mentally retarded and may not have Aknowingly, intelligently and voluntarily@ waived his rights; (3) the suspect Alacked the mental capacity to understand his rights@; (4) the suspect was intoxicated, and he Adid not know what he was signing and thought it was an accident report@; (5) the suspect was confronted by the brother-in-law of his murder victim and beaten; (6) the suspect was returned to the store he broke into Afor questioning by several persons armed >with six-shooters.=@ Id. at 172B73 (internal citations omitted). No such circumstances are present here. On the contrary, the exculpatory and spontaneous nature of appellant=s statement, in light of the circumstances in which it was given, suggests that he made it voluntarily in an attempt to avoid criminal liability. We therefore decline to hold that appellant=s statement to Sergeant Mora was involuntary under the circumstances. To hold otherwise would render involuntary virtually any statement made by a handcuffed inmate. Having overruled both of appellant=s contentions, we conclude that the trial court did not abuse its discretion by admitting the challenged statement. 2. Appellant=s admission to counsel substitute The State called appellant=s counsel substitute, Ernie Miles, as a rebuttal witness. Miles described counsel substitutes as Aadvocates for the offender@ in the TDCJ disciplinary process.[5] Miles testified that at the disciplinary hearing, appellant stated that he had been in possession of the weapon. Appellant objected to Miles= testimony, claiming his statement was confidential and involuntary. Appellant now elaborates on that assertion of confidentiality by contending that the alleged statement was protected by attorney-client privilege due to the nature of the relationship between himself and Miles. As a threshold matter, for appellant to prevent Miles from testifying by invoking the attorney-client privilege, appellant had to establish that Miles was a licensed attorney, or that appellant reasonably believed as much. See Tex. R. Evid. 503(a)(3); Austin v. State, 934 S.W.2d 672, 674 (Tex. Crim. App. 1996) (en banc) (stating that person seeking protection of privilege has burden of establishing its existence); Strong v. State, 773 S.W.2d 543, 549 (Tex. Crim. App. 1989) (stating that Rule 503(a)(3) requires person=s belief that individual was licensed attorney to have been reasonable). Although Miles admitted acting as an advocate for appellant, the record contains no evidence regarding whether she was an attorney, or whether appellant held the belief, reasonable or otherwise, that she was an attorney. On the contrary, appellant testified that he did not even remember Miles. Although appellant=s appellate counsel has appended information from TDCJ=s Offender Orientation Handbook coinciding with Miles=s description of counsel substitute=s role as an advocate, that information is not part of the data contained in the record. See Llamas v. State, 12 S.W.3d 469, 471 (Tex. Crim. App. 2000) (stating that appellate court analyzes harm based on information contained in the record from the trial court). We therefore express no opinion as to whether that information establishes that appellant reasonably believed Miles was a licensed attorney, and we hold that the record fails to show that appellant held such a belief. But even if there were evidence that Miles either was a licensed attorney or appellant reasonably believed she was, appellant also had the burden of establishing that the alleged statement was a Aconfidential@ communication, such that the challenged testimony was subject to the attorney-client privilege. Tex. R. Evid. 503(a)(5) (confidential communication is one Anot intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication@); see also Carmona v. State, 941 S.W.2d 949, 954 n.6 (Tex. Crim. App. 1997) (en banc); Austin, 934 S.W.2d at 674. Miles testified that initially appellant did not say anything about possessing the weapon, but later admitted at his disciplinary hearing that he possessed the weapon for protection. The record does not disclose the nature of this statement, other than that it was made at the disciplinary hearing. It is unclear whether the statement was made in confidence to Miles or was an oral statement given by appellant at the hearing. Moreover, appellant=s alleged disclosure of the same statement to Sergeant Mora prior to his statement at the hearing suggests that he did not intend the latter communication to be confidential. See Strong, 773 S.W.2d at 552 n.11; see also U.S. v. Melvin, 650 F.2d 641, 645B46 (5th Cir. 1981). Therefore, even if we assume that the attorney-client privilege applied to appellant and Miles=s relationship, we cannot say that the challenged testimony was subject to the privilege, because appellant failed to establish that the statement was intended to be confidential. See State v. DeAngelis, 116 S.W.3d 396, 404 (Tex. App.CEl Paso 2003, no pet.); Manning v. State, 766 S.W.2d 551, 557B58 (Tex. App.CDallas 1989), aff=d, 773 S.W.2d 568 (Tex. Crim. App. 1989). Finally, because appellant was not required to make a statement or even attend the disciplinary hearing under TDCJ=s rules and procedures, we disagree with his contention that the circumstances compelled him to admit that he had possessed the weapon. See Lykens, 784 S.W.2d at 36B37; Disciplinary Rules & Procedures for Offenders at 12B13. Having found that neither the attorney-client privilege nor other circumstances indicate that appellant=s statement was involuntarily given, we conclude that the trial court did not abuse its discretion in admitting the statement. We overrule appellant=s third issue. C. Evidence of Gang Affiliation In his fourth issue, appellant contends the trial court abused its discretion by refusing to grant a mistrial during the punishment phase after the State attempted to link him to gang activity through the testimony of Sergeant Briseno. When Sergeant Briseno began testifying that his duties included investigating gangs and acting as a Spanish interpreter, appellant objected on relevancy grounds but was overruled. Sergeant Briseno then testified that he had interpreted a letter which was connected to a stabbing, though he never connected that incident to gang activity. Appellant objected again and a hearing was held outside the jury=s presence, in which appellant argued that the State had failed to connect the evidence to appellant. The trial judge sustained appellant=s objection on hearsay grounds and instructed the jury to disregard the gang testimony, but denied appellant=s motion for mistrial. Appellant now contends that the trial court=s refusal to grant a mistrial was an abuse of discretion because (1) the gang evidence was irrelevant and violated appellant=s First Amendment right of association, and (2) the evidence of gang activity presented before the jury resulted in incurable prejudice. We review the trial court=s decision for an abuse of discretion, keeping in mind that a mistrial is only required in extreme circumstances where the prejudicial nature of the objectionable matter presented is incurable. Hawkins v. State, 135 S.W.3d 72, 76B77 (Tex. Crim. App. 2004). Here, because the trial court sustained appellant=s objection to evidence of gang affiliation and instructed the jury to disregard that evidence, we must determine whether the admission of the evidence was so harmful that the case must be retried. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc); see also Hawkins, 135 S.W.3d at 77; Austin v. State, 222 S.W.3d 801, 815B16 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d). To do so, we balance three factors: (1) the prejudicial effect of the evidence, (2) curative measures, and (3) the likelihood of the same punishment being assessed absent the erroneous admission. See Mosley, 983 S.W.2d at 259; see also Hawkins, 135 S.W.3d at 77 (adopting Mosley factors to evaluate whether the trial court abused its discretion in denying a mistrial and tailoring the factors to apply in a punishment context); Austin, 222 S.W.3d at 815B16 (applying Mosley factors where instruction to disregard was given after the State elicited testimony barred by trial court=s ruling on motion in limine). If, as here, the court has instructed the jury to disregard improper evidence, we presume that the jury has followed the instruction, unless that presumption is rebutted by contrary evidence. Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005). In determining whether the erroneous evidence mandates a new trial, we look at the facts and circumstances of the case to see if the trial court's instruction cured the admission. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). Here, the prejudicial effect was minimal because nothing linked appellant to the general evidence presented on gang activity. Because the trial court instructed the jury to disregard Sergeant Briseno=s gang testimony, we presume the jury followed the instruction, curing any error in admitting the evidence. See Thrift, 176 S.W.3d at 224. Moreover, appellant points to no evidence rebutting that presumption. Thus, the first two factors, addressing prejudicial effect and curative measures, weigh in favor of the State. In analyzing the third element, we consider the sentence imposed, the nature of the offense, and appellant=s prior convictions to determine the likelihood the same punishment would have been assessed absent the inadmissible evidence. See Hawkins, 135 S.W.3d at 85. Here, the offense was possession of a deadly weapon, committed while appellant was serving a lengthy sentence from a prior conviction for aggravated sexual assault of a child. His prior conviction and the nature of the offense are more likely reasons for his sentence, which was in the bottom third of the statutory range (eight years= imprisonment, where the potential range was two to twenty). See id. We find that this third factor weighs in favor of the State. Having found that all three factors weigh in the State=s favor, we conclude that, under the circumstances, the trial court did not abuse its discretion by denying appellant=s motion for mistrial. Appellant=s fourth issue is overruled. Having overruled all of appellant=s issues, we affirm the trial court=s judgment. /s/ Leslie B. Yates Justice Panel consists of Justices Yates, Seymore, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Sergeant Mora prepared two reports following the incident, one soon thereafter and the other four-and-a-half months later. In the first report, he neglected to mention finding the weapon inside appellant=s shoe but reported finding it inside a plastic glove. In the second report, he recounted finding the weapon inside appellant=s shoe (but did not mention the plastic glove) and claimed that the weapon had a cloth handle, rather than a plastic one as he stated in his first report and at trial. [2] Sergeant Mora admitted that neither of his reports recounted this admission. [3] ACounsel substitutes are non-uniformed employees who represent offenders in disciplinary proceedings . . . .@ Tex. Dep=t. of Crim. Justice, Correctional Insts. Div., Disciplinary Rules & Procedures for Offenders 9 (Jan. 2005); see also Tex. Dept. of Crim. Justice, Correctional Insts. Div., Offender Orientation Handbook 51 (Nov. 2004). [4] AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@ Tex. R. App. P. 38.1(i). [5] Miles also stated that counsel substitutes accompany offenders to their disciplinary proceedings, answer their questions, and ensure their witnesses and documents are present during the disciplinary process. Both the Texas Department of Criminal Justice=s Offender Orientation Handbook, and its Disciplinary Rules and Procedures for Offenders, support Miles=s description of the counsel substitute=s role. See Tex. Dep=t. of Crim. Justice, Correctional Insts. Div., Offender Orientation Handbook at 51; Tex. Dep=t. of Crim. Justice, Correctional Insts. Div., Disciplinary Rules & Procedures for Offenders at 10.