COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-069-CR
JERRY BRIDGES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 16TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Appellant Jerry Bridges appeals his conviction for possession of a
controlled substance with intent to deliver.2 We affirm.
While in custody the day after his arrest, appellant signed a written
statement admitting that he had bought, used, and sold methamphetamine.
1
… See T EX. R. A PP. P. 47.4.
2
… See T EX. H EALTH & S AFETY C ODE A NN. § 481.112 (Vernon 2003).
Following a pretrial hearing, the trial court ruled the statement admissible, and
it was admitted at trial as State’s Exhibit 1. The jury found appellant guilty as
charged in the indictment and, after hearing additional evidence and argument,
assessed punishment at sixty years’ confinement.
In point one, appellant claims that the trial court abused its discretion in
admitting State’s Exhibit 1 because it lacked a warning required by code of
criminal procedure article 38.22 section 2(a)(4) that, if indigent, the accused
has the right to an appointed lawyer to advise him before and during any
questioning.3 The State concedes in its brief that State’s Exhibit 1 lacks the
required warning, but the State argues that appellant has forfeited his claim
because he did not raise the issue with the trial court. We agree.
To preserve a complaint for review, a party must have presented to the
trial court a timely request, objection, or motion stating the specific grounds for
the desired ruling if those grounds are not apparent from the context of the
request, objection, or motion.4 An objection preserves only the specific ground
cited.5
3
… T EX. C ODE C RIM. P ROC. art. 38.22, § 2(a)(4) (Vernon 2005).
4
… T EX. R. A PP. P. 33.1(a)(1)(A); Mosley v. State, 983 S.W.2d 249, 265
(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
5
… See T EX. R. A PP. P. 33.1(a)(1)(A); Mosley, 983 S.W.2d at 265; Bell
v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522 U.S.
2
At trial, appellant argued,
Also, I would point to the Court the case 729 S.W.2d
137(A). I believe it is the State versus Taylor. I just had it up here,
but I’m not locating it, a case that is shockingly similar to this one
in which the defendant was brought in and even made the
statement that he didn’t read and write so well, such as what was
previously proffered here. And the statement was read to him just
as it is alleged to here, but without any other safeguards, just as it
was here. In that case the Court ordered the statement to be
suppressed. The Court of Appeals ordered that it be suppressed
upon appeal. That’s a case out of Beaumont, as I recall.
....
. . . and also I would – again, I was trying to pull up that case. I
believe it was the Taylor versus State, 729 S.W.2d. It’s almost
factually identical to the present case. And there they ordered the
statement suppressed just for the reasons because the officers
testified just almost as the officer did here just a few moments ago
that, Well he said he couldn’t read or write, so he – I read along
with him and I had him read through it, and he kind of indicated he
under – he understood it.
We can find no argument to the trial court that suppression was required
because State’s Exhibit 1 lacked the section 2(a)(4) warning relating to
appointed counsel. Nor is it apparent from the context of counsel’s comments
that appellant opposed admission based upon section 2(a)(4). 6 Trial counsel
827 (1997).
6
… In his brief, appellant cites Thibedeaux v. State, 729 S.W.2d 137
(Tex. App.—Beaumont 1987, pet. ref’d), as the case to which trial counsel
meant to refer in his comments to the trial court. But Thibedeaux deals with
section 2(b), not section 2(a)(4). See id. at 137 (“[The] complaint before us is
3
argued that there should have been safeguards in place to ensure the
voluntariness of a statement made by one who could not read or write, not that
section 2(a)(4)’s warning pertaining to the appointment of counsel for indigent
persons did not appear on the face of the statement. Because appellant’s point
one does not comport with any objection raised at trial, we overrule it.
We overrule point two for the same reason. In point two, appellant
claims that the admission of State’s Exhibit 1 violated the Fifth Amendment of
the United States Constitution and Miranda v. Arizona,7 but he did not raise this
objection in the trial court. Therefore, the complaint is not preserved for
review.
In points three and five, appellant argues that State’s Exhibit 1 was
involuntary because appellant is mildly mentally retarded and did not knowingly,
intelligently, and voluntarily waive his article 38.22 and Miranda rights.
We review a trial court’s ruling on a motion to suppress under a
bifurcated standard of review.8 In reviewing the trial court’s decision, we do
that the confession did not comply with T EX. C ODE C RIM. P ROC. A NN. art.
38.22(2)(b) (Vernon 1979).”).
7
… 384 U.S. 436, 86 S. Ct. 1602 (1966).
8
… Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
4
not engage in our own factual review. 9 The trial judge is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their
testimony.10 Therefore, we give almost total deference to the trial judge’s
rulings on (1) questions of historical fact, even if the trial court’s determination
of those facts was not based on an evaluation of credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility
and demeanor.11 But when the trial court’s rulings do not turn on the credibility
and demeanor of the witnesses, we review de novo a trial court’s rulings on
mixed questions of law and fact.12 When the trial court makes explicit fact
findings, we determine whether the evidence, when viewed in the light most
favorable to the trial court’s ruling, supports those fact findings. 13 We then
review the trial court’s legal ruling de novo unless its explicit fact findings also
9
… Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best
v. State, 118 S.W.3d 857, 861 (Tex. App—Fort Worth 2003. no pet.).
10
… State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); State
v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
11
… Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.
2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002);
State v. Ballman, 157 S.W.3d 65, 68 (Tex. App.—Fort Worth 2004, pet. ref’d).
12
… Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);
Johnson, 68 S.W.3d at 652–53.
13
… State v. Kelly, 204 S.W.3d 808, 818–19 (Tex. Crim. App. 2006).
5
dispose of the legal ruling.14 We must uphold the trial court’s ruling if it is
supported by the record and correct under any theory of law applicable to the
case even if the trial court gave the wrong reason for its ruling.15
When the suppression issue was litigated at a pretrial hearing and again
during trial, we consider evidence from both parts of the record in determining
whether the record, viewed in the light most favorable to the trial court’s
findings, supports those findings. 16
Whether a written statement is voluntary is determined by examining the
totality of the circumstances surrounding its acquisition.17 An accused’s mental
14
… Id. at 819.
15
… State v. Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007);
Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974 (2004).
16
… See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App.), cert.
denied, 519 U.S. 1043 (1996).
17
… Armstrong v. State, 718 S.W.2d 686, 693 (Tex. Crim. App. 1985)
(overruled on other grounds by Mosely v. State, 983 S.W.2d 249, 264 n.18
(Tex. Crim. App. 1998).
6
retardation can figure into the voluntariness inquiry.18 Illiteracy, too, is relevant,
but does not demand a finding of involuntariness.19
The record shows the following:
• Appellant was sixty-one years old and for a number of years had owned
and operated a business.
• After appellant was arrested in a buy-bust operation, officers found
$1,020.00 in cash and a small plastic bag of methamphetamine in his
pockets.
• The night of his arrest, appellant telephoned Lieutenant David Scott
several times from jail.
• The next day, Officer Jeff Davis went to the jail to talk to appellant and
see what he wanted.
• When Officer Davis arrived, appellant appeared depressed, expressed
remorse, and asked whether Lieutenant Scott was upset with him and
what was going to happen.
18
… Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App. 2007) cert.
denied, 128 S. Ct. 1128 (2008); Penry v. State, 903 S.W.2d 715, 744 (Tex.
Crim. App.), cert. denied, 516 U.S. 977 (1995); Sosa v. State, 769 S.W.2d
909, 915 (Tex. Crim. App. 1989) cert. denied, 529 U.S. 1056 (2000); see
Arizona v. Fulminante, 499 U.S. 279, 286 n.2, 111 S. Ct. 1246, 1252 n.2
(1991).
19
… Westley v. State, 754 S.W.2d 224, 229 (Tex. Crim. App. 1988).
7
• Officer Davis told appellant that he would like to take his statement to
get his version of what had transpired the previous day, and appellant
agreed.
• At the booking-desk computer, Officer Davis pulled up a form, and
appellant was able to read along as Officer Davis read him his Miranda
rights less the right to appointed counsel.
• Appellant acknowledged that he understood his rights, agreed to waive
them, signed a waiver to that effect, and gave a statement that Officer
Davis typed and appellant signed.
• Appellant told Officer Davis that he had attended school through seventh
grade and could read “pretty good” but not spell.
• Officer Davis made no promises or threats to appellant, and in giving the
statement, appellant appeared to know what he was doing.
• After the statement was prepared, appellant read it back to Officer Davis.
• Dr. Leon Peek, a psychologist, performed several tests on appellant, and
testified both at the pretrial hearing and before the jury at trial.
• Dr. Peek concluded that appellant had an IQ of 58, was mildly mentally
retarded, and could not “read for information,” which meant that
appellant could understand words as he heard them but would have
difficulty understanding their meaning and importance.
8
• One of the tests showed that appellant was malingering and not making
his best effort in taking the tests, and Dr. Peek believed that the other
scores, including appellant’s IQ, were underestimates.
• The trial court, based upon its observation of appellant’s behavior and
demeanor, found that appellant displayed no indications of mental
incapacity such as that his statement would not have been voluntarily
made.
Having reviewed the trial court’s findings in the appropriate light, the
evidence presented at the suppression hearing, and the evidence presented at
trial, we hold that the trial court did not abuse its discretion in finding that,
under the totality of the circumstances, appellant’s statement admitted as
State’s Exhibit 1 was voluntary. We overrule appellant’s points three and five.
In point four, appellant contends that the trial court abused its discretion
in admitting State’s Exhibit 1 because it “contained references to inadmissible
extraneous offenses and its probative value was outweighed by its prejudicial
effect.”
State’s Exhibit 1 contained a list of persons to whom appellant admitted
he has sold methamphetamine. It also contained appellant’s admissions that
he has bought approximately a half-ounce of methamphetamine every week for
9
the last three years, that he uses about a quarter-ounce every week, that he
sells the rest, and that he sells enough methamphetamine to support his habit.
Admissibility of evidence is a matter within the trial court’s discretion.20
As long as the trial court's ruling admitting evidence was within the “zone of
reasonable disagreement,” there is no abuse of discretion and its ruling will be
upheld.21
Evidence of “other crimes, wrongs or acts” is inadmissible in a criminal
case to prove that the defendant acted in conformity with his character to
commit crimes.22 Evidence of other bad acts may be admissible, however, if
it has relevance apart from its tendency to prove that the defendant acted in
conformity with his character.23 Evidence that logically serves to establish
some elemental fact, such as identity or intent; or that tends to establish some
evidentiary fact, such as motive, opportunity or preparation, leading inferentially
to an elemental fact; or evidence that rebuts a defensive theory may be
20
… Montgomery v. State, 810 S.W.2d 372, 378–79 (Tex. Crim. App.
1990).
21
… Rachal, 917 S.W.2d at 807.
22
… T EX. R. E VID. 404(b).
23
… Montgomery, 810 S.W.2d at 388 (op. on reh’g).
10
admissible.24 “‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence.” 25
Appellant was tried for possession of a controlled substance, namely,
methamphetamine, with intent to deliver. Intent to deliver, therefore, is an
essential element of that offense. Those portions of State’s Exhibit 1 that
relate to appellant’s selling methamphetamine are relevant to proving this
essential element.
Having held the evidence to be relevant, we must determine whether its
probative value was substantially outweighed by the danger of unfair
prejudice.26 To make this determination, we must consider the inherent
probative force of the proffered item of evidence along with the proponent’s
need for that evidence, and balance these considerations against the following
four factors that favor exclusion:
24
… See Marc v. State, 166 S.W.3d 767, 775 (Tex. App.—Fort Worth
2005, pet. ref’d); Massey v. State, 933 S.W.2d 582, 586 (Tex. App.—
Houston [1st Dist.] 1996, no pet.).
25
… T EX. R. E VID. 401; Marc, 166 S.W.3d at 775.
26
… Montgomery, 810 S.W.2d at 388–89 (op. on reh’g).
11
(1) any tendency of the evidence to suggest [a] decision on an
improper basis,
(2) any tendency of the evidence to confuse or distract the jury
from the main issues,
(3) any tendency of the evidence to be given undue weight by a
jury that has not been equipped to evaluate the probative force of
the evidence, and
(4) the likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already
admitted.27
In this case, the probative force and the State’s need to admit State’s
Exhibit 1 outweigh the factors that favor exclusion. Appellant’s admission that
he regularly sold methamphetamine was compelling evidence that appellant
intended to sell methamphetamine. It would be rational for the jury to conclude
from appellant’s admission that he regularly sold methamphetamine that he
intended to sell it in this case. His admission further served to rebut appellant’s
theories that the drugs were planted on him and that the money he carried
when he was arrested had come, not from selling drugs, but from payments
27
… Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App.
2006).
12
from his rental properties. While it was likely to be given some weight by the
jury due to its probative value, the admission had no tendency to suggest a
decision on an improper basis or to confuse or distract the jury from the main
issues. In addition, the State did not take an inordinate amount of time to
develop the evidence compared to the rest of the record, nor is there any
indication in the record that the evidence distracted the jury from consideration
of the indicted offense.
Because the factors favoring exclusion do not substantially outweigh the
probative force of the evidence and the State’s need for it, we hold that the
trial court did not abuse its discretion in admitting evidence of appellant's
statement under rule 403. We overrule point four.
In point six, appellant argues that the trial court abused its discretion in
failing to fully instruct the jury not to consider State’s Exhibit 1 unless it found
that all the proper warnings had been given and that appellant knowingly,
intelligently, and voluntarily waived his rights before making the statement.
When the evidence raises a fact issue as to whether a defendant had
been warned of his rights and voluntarily waived them prior to making a
statement, he is entitled to an instruction on the voluntariness of his
13
confession.28 In such cases, it is proper to include in the charge an instruction
informing the jury that if it has a reasonable doubt as to whether a defendant
knowingly, intelligently, and voluntarily waived his rights before giving a
confession, it must disregard the confession and not consider it for any
purpose. 29
Appellant concedes that he neither requested a voluntariness instruction
nor objected to the voluntariness instruction the trial court included in the
charge. A challenge to the voluntariness of a statement is a defensive issue.30
To preserve a complaint regarding the omission of a jury instruction on a
defensive issue for our review, the appellant must make a proper objection or
request in the trial court.31 The appellant in this case did neither. Therefore,
his complaint regarding the omission of the instruction is waived. We overrule
point six.
28
… Dinkins v. State, 894 S.W.2d 330, 353 (Tex. Crim. App.), cert.
denied, 516 U.S. 832 (1995).
29
… Bell v. State, 582 S.W.2d 800, 808–09 (Tex. Crim. App. 1979),
cert. denied, 453 U.S. 913 (1981).
30
… Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002);
Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.), cert. denied, 510 U.S.
837 (1993).
31
… T EX. R. A PP. P. 33.1; Posey v. State, 966 S.W.2d 57, 61–62 (Tex.
Crim. App. 1998)(trial courts have no duty to sua sponte instruct the jury on
unrequested defensive issues).
14
In point seven, appellant contends that his trial counsel was ineffective
in failing to object to the admission of State’s Exhibit 1 because it did not
contain proper 38.22 and Miranda warnings on its face and because counsel
failed to object to the trial court’s inadequate instruction on voluntariness.
We apply a two-pronged test to ineffective assistance of counsel claims.32
First, appellant must show that counsel’s performance was deficient, which
requires showing that counsel made such serious errors that he or she was not
functioning as the “counsel” guaranteed by the Sixth Amendment.33 Counsel’s
performance is deficient only if it fell below an objective standard of
reasonableness measured by prevailing professional norms.34 The record must
be sufficiently developed to overcome a strong presumption that counsel
provided reasonable assistance. 35 Our scrutiny of counsel’s performance must
32
… Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.
State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
33
… Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
34
… Id. at 688–89, 104 S. Ct. at 2065.
35
… Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002);
Thompson, 9 S.W.3d at 813–14.
15
be highly deferential, making every effort to eliminate the distorting effects of
hindsight.36
Second, appellant must show that counsel’s deficient performance
prejudiced the defense; this requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial.37 Appellant must show that
there is a reasonable probability that, but for counsel’s deficiency, the result of
the trial would have been different.38
A claim of ineffective assistance of counsel must be firmly grounded in,
and supported by, the record.3 9 When the record is silent as to possible trial
strategies employed by defense counsel, we will not speculate on the reasons
for those strategies.40
There is a substantial risk of failure when a claim of ineffective assistance
of counsel is brought on direct appeal. 41 “Under normal circumstances, the
36
… Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
37
… Id. at 687, 104 S. Ct. at 2064.
38
… Id. at 694, 104 S. Ct. At 2068.
39
… Thompson, 9 S.W.3d at 814; Jackson v. State, 973 S.W.2d 954,
955 (Tex. Crim. App. 1998).
40
… See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
41
… Thompson, 9 S.W.3d at 813.
16
record on direct appeal will not be sufficient to show that counsel’s
representation was so deficient and so lacking in tactical or strategic
decisionmaking as to overcome the presumption that counsel’s conduct was
reasonable and professional.” 42
This case demonstrates the “inadequacies inherent in evaluating
ineffective assistance claims on direct appeal.” 43 Although appellant filed a
motion for new trial, there is nothing in the record to show that he presented
it to the trial court to afford the trial court an opportunity to hold a hearing and
inquire into the reasons for trial counsel’s acts or omissions. Consequently, we
cannot determine whether counsel’s actions were grounded in sound trial
strategy because the record is silent as to possible trial strategies, and we will
not speculate on the reasons for those strategies.44 Nor is this a case where
the trial record alone is sufficient to support appellant’s claim that counsel was
ineffective. 45 Therefore, appellant has failed to meet the first prong of
Strickland. We overrule point of error seven.
42
… Bone, 77 S.W.3d at 833.
43
… Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth
2001, no pet.).
44
… See id.; Jackson, 877 S.W.2d at 771.
45
… See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005);
Thompson, 9 S.W.3d at 813.
17
Having overruled all of appellant’s points of error, we affirm the trial
court’s judgment.
PER CURIAM
PANEL: CAYCE, C.J.; DAUPHINOT and MCCOY, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: August 29, 2008
18