NO. 07-03-0538-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JULY 14, 2005
______________________________
TONY J. ROMO, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-402,096; HON. BRAD UNDERWOOD, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, C.J., and CAMPBELL, JJ.1
Tony J. Romo, Jr. (appellant) appeals his conviction for aggravated sexual assault.
After considering his nine issues, we affirm the judgment for the reasons which follow.
Issues One and Two – Admission of DNA Evidence
Appellant initially contends that the trial court erred in admitting DNA evidence
developed from a blood sample taken while he was in prison. This is purportedly so
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Then Ch ief Ju stice Phil Joh nson, wh o sa t on the panel at oral argument, did not participate in this
decision.
because the sample was taken in violation of his constitutional rights to be free of
unreasonable searches and seizures. We overrule the issues.
The sample was impermissibly obtained, according to appellant, for two reasons.
First, the process utilized purportedly violated §411.148(a) of the Texas Government Code
and, second, a federal appellate court struck down a like procedure in United States v.
Kincade, 345 F.3d 1095 (9th Cir. 2003).2 The procedure at issue involves the drawing of
blood from convicted felons while in prison. The specimen is then used to create a DNA
record of the felon.
We address the second reason proffered by appellant first. While the United States
Court of Appeals for the Ninth Circuit, in Kincade, did initially hold unconstitutional a
procedure wherein blood was drawn from convicted felons to create a DNA record, that
opinion is no longer authoritative. It was withdrawn by the same court, and another was
placed in its stead. And, through the latter, it held that “compulsory DNA profiling of
qualified federal offenders is reasonable under the totality of the circumstances” and that
“we today align ourselves with every other state and federal appellate court to have
considered these issues – squarely holding that the DNA Act satisfies the requirements of
the Fourth Amendment.” United States v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004) (en
banc). Given that the foundation for appellant’s argument no longer exists, we reject
appellant’s argument.
2
Section 411.148(a) of the Government Code states: “[a]n inmate serving a sentence for a felony in
the institutional division shall provide one or more blood samples or oth er specimens for the purpose of
creating a DN A reco rd.” T E X . G O V . C O D E A N N . §411 .148(a) (V ernon 2005 ).
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Regarding his first reason, appellant admits that he was convicted and sent to prison
for another offense. However, he appealed that conviction, and this court had yet to issue
its mandate finalizing the conviction when his blood was drawn by the prison officials.
Furthermore, because mandate had yet to issue, he could not be considered as “serving
a sentence” for purposes of §411.148(a), appellant concludes. Yet, in making this
argument, appellant did not address the dictates of art. 42.09, §6 of the Texas Code of
Criminal Procedure. It provides that “[a]ll defendants who have been transferred to the
institutional division of the Texas Department of Criminal Justice pending appeal of their
convictions . . . shall be under the control and authority of the institutional division for all
purposes as if no appeal were pending.” TEX. CODE CRIM . PROC . ANN . art. 42.09, §6
(Vernon Supp. 2005) (emphasis added). Given this directive, the State was permitted to
treat appellant like a convicted felon even though his appeal had yet to be finalized via the
issuance of a mandate.
Issues Eight and Nine – Suppression of his Confession
We next address appellant’s issues eight and nine for they are generally dispositive
of the others. Through them, he complains of the trial court’s refusal to suppress his
confession. It was subject to suppression, in his view, because he was denied his right to
counsel during the execution of the search warrant and his confession was executed after
he had attempted to end the interrogation. We overrule the issues.
As to the request for an attorney, appellant cites us no authority (and we know of
none) holding that he is entitled to an attorney when officers attempt to execute a search
warrant. And, while requesting an attorney may obligate a suspect’s interrogators to halt
further interrogation, they need only do so until counsel is provided or the suspect himself
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re-initiates conversation. Dinkins v. State, 894 S.W.2d 330, 350-51 (Tex. Crim. App. 1995).
Here, the record contains the following evidence proffered by a police officer who
helped execute the search warrant. At the time the warrant was served, appellant
requested an attorney. Per that warrant, the officers intended to obtain a blood sample
from him. Furthermore, they told appellant that he had no right to an attorney at that point.
Instead, appellant was taken to the health department whereat personnel extracted several
vials of blood from him. Additionally, neither officer broached with appellant the issue of
his providing a statement. Nor did appellant again request counsel. Nonetheless,
appellant asked to speak to detective Martinez. The latter and appellant knew each other
since they had engaged in prior discussions about other criminal matters. So, his
custodians phoned Martinez to see if he cared to meet with appellant. Martinez agreed to
do so. Thereafter, the officers drove appellant from the health department to the police
station so he and appellant could meet. During that short drive, nothing was said about
appellant offering any statement. Nor did appellant again request to speak to legal counsel.
And, by the time the group arrived at the station, they had spent approximately 45 minutes
together.
Next, when appellant encountered detective Martinez, the two engaged in “small
talk.” During this exchange appellant informed Martinez about his general situation and the
prison in which he was incarcerated. This led to Martinez informing appellant of his
Miranda rights. Thereafter, appellant provided Martinez with his version of the events,
which Martinez transcribed. The transcription, which also contained Miranda warnings, was
then given to appellant. Appellant was asked to review its contents and place his initials
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next to each Miranda admonition. So too was he asked if he wanted to make any changes.
He did ask for clarification about a matter but made no changes. So too did he place his
initials next to the warnings and sign the confession before a notary. At no time during the
interview did he ask for counsel or request that the proceeding stop. Nor was he denied
any basic necessities during the meeting, which lasted less than two hours.
Though appellant contradicted much of what the officers said, the trial court had the
discretion to choose which witness to believe. As the sole finder of fact, Arnold v. State,
873 S.W.2d 27, 34 (Tex. Crim. App. 1993), it was free to believe or disbelieve any or all of
the evidence presented. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
And, we must conclude that evidence appeared before it upon which it could have
reasonably determined that while appellant initially requested legal counsel, he also
voluntarily and unilaterally re-initiated discussion with the officers after the request.
Furthermore, the very same evidence we mentioned above further entitled the trial court
to conclude that appellant’s statement was 1) voluntarily given without coercion, threat or
improper influence and 2) not obtained in breach of any request to halt the interview. This
being so, we have no basis to alter the trial court’s refusal to suppress the confession and,
therefore, overrule both issues eight and nine. See State v. Ross, 32 S.W.3d 853, 856
(Tex. Crim. App. 2000) (stating that the trial court’s determination will not be overturned if
supported by the record, especially when the trial court's findings turn on the witness'
credibility and demeanor).
Issues Three through Seven
The remaining issues before us deal with appellant’s ability to attack the validity of
the DNA evidence proffered by the State at trial. They involve appellant’s opportunity to
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secure evidence and expert testimony which may have been used to discredit the accuracy
of the DNA evidence used to inculpate him. Assuming arguendo that each complaint had
merit, we, nonetheless, would find them to fall short of requiring reversal. This is so
because of appellant’s written statement. It too was admitted into evidence at trial and
through it, he confessed to committing the assault. Given his confession to the crime, the
DNA evidence was rendered moot. In short, the admissible evidence of his guilt was
overwhelming and sufficient to render harmless any mistake made by the trial court viz the
DNA evidence and appellant’s opportunity to rebut it.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Chief Justice
Do not publish.
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