NO. 07-06-0138-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 7, 2008
______________________________
LORI SUE HOLCOMB, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 33RD DISTRICT COURT OF BURNET COUNTY;
NO. 31515; HONORABLE D. MILLS, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Lori Sue Holcomb, was convicted of the offense of burglary of a building and sentenced to two years confinement in a State Jail Facility, probated for five years. By one issue, appellant claims that the trial court erred in admitting testimony of an officer regarding an interview of appellant that was conducted at appellant’s place of employment. We affirm.
Factual Background
The facts are not in issue, therefore, only a brief recitation of the operative facts is required. A City of Bertram police officer, Jeff White, was on routine foot patrol when he saw a man, identified as Patrick Hodges, standing next to a truck parked at the entrance to an alley. Upon talking to Hodges, White was told that Hodges was parked there while appellant went down the alley to use the restroom. Shortly thereafter, appellant appeared from some bushes near a vacant house. This was the same vacant house that appellant was ultimately charged with burglarizing. White questioned appellant and she was released. White discovered the owner of the vacant house, interviewed her, and discovered that certain items had been taken from the house. Upon returning to the vacant house, White found a number of items stacked on the front porch, including a purse that contained no identification. Some days later, White went to appellant’s place of employment to interview her about the burglary at the vacant house. Upon beginning the interview, appellant began crying and made statements about the items left on the porch, including the purse which she claimed belonged to her. White testified, at a pretrial hearing, that during his interview with appellant he felt he had enough information to formulate probable cause to arrest her. However, White further testified that he did not attempt an arrest or inform appellant that he felt he had probable cause to arrest. At the conclusion of this pretrial hearing on the admissibility of appellant’s oral statements, the trial court ruled that they were admissible. Appellant was convicted of the charge of burglary of a building and this appeal resulted.
Appellant’s Oral Statements
Appellant’s sole contention is that, once officer White formulated in his mind that he had probable cause to arrest appellant for the burglary of the vacant house, appellant was in custody unless the officer had advised appellant that she was free to leave. According to appellant, White rendered the oral statements inadmissible because, even though appellant was in custody, she was not given her Miranda rights prior to making the incriminating oral statement.
We will review the decision of the trial court to overrule the motion to suppress de novo, as there is no controversy regarding the factual background nor is the decision based on the credibility of the witness. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App. 1999). Appellant’s contention is grounded upon her view that the opinion in Dowthitt v. State stands for the proposition that once an officer develops, in his own mind, probable cause to arrest a suspect, the suspect is in custody for Miranda purposes unless the officer advises the suspect that they are free to leave. See Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). However, appellant misconstrues the Dowthitt holding. In Dowthitt, the Texas Court of Criminal Appeals stated that the custody determination is based entirely upon objective circumstances. Id. (citing Stansbury v. California, 511 U.S. 318, 324, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994)). A person is in custody only if it is established that the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with arrest. Id.
Given the facts in the record, it is clear that on the day of the interview at appellant’s place of employment, it was never communicated to appellant that she was under arrest or otherwise restrained of her freedom. Accordingly, the oral statements made by appellant on that day were not the result of custodial interrogation and the trial court did not err in admitting them before the jury. Id.
Additionally, we note that appellant gave a written confession that was introduced during the trial. Appellant has not attacked the introduction of the written confession before the jury. Accordingly, that evidence is before the court for all purposes. A review of the written statement reveals that it covers much of the same material and makes further admissions. Therefore, even were we to find that the oral statements were admitted in error, the written statement would render this error harmless beyond a reasonable doubt. Tex. R. App. P. 44.2(a).
Conclusion
Having overruled appellant’s sole contention, the judgment of the trial court is affirmed.
Mackey K. Hancock
Justice
Do not publish.
tting the motion for hearing. In fact, the record reflects that when the court convened on the following Monday, May 14, 2007, appellant said nothing to the trial court about the motion.
We can find no support in the record for the proposition that the motion to dismiss appointed counsel was ever brought to the trial court’s attention. This is fatal to appellant’s position for two reasons. First, the trial court was denied the opportunity to rule on the motion. As such, the same has not been preserved for appeal. See Tex. R. App. P. 33.1(a)(1). Second, when applied to a request to dismiss appointed counsel, the law requires that the trial court be informed of the motion in a timely manner. See Malcom v. State, 628 S.W.2d 790, 791 (Tex.Crim.App. 1982). The record fails to show that the motion was ever brought to the attention of the trial court. Accordingly, we overrule appellant’s first issue.
Lesser Included Offense
Appellant’s second issue complains about the trial court’s refusal to give a lesser included charge on the offense of murder. Counsel for appellant requested such a charge at the charge conference, but the trial court denied the request. Appellant was indicted for capital murder that alleged appellant did intentionally cause the death of Sundeep Singh by shooting him with a deadly weapon, a firearm, while appellant was in the course of committing or attempting to commit the offense of robbery. From a review of appellant’s second issue, it is apparent that appellant is contending that, since the evidence did not show that any money was taken in the robbery, the jury should have been allowed to determine if the appellant was guilty of only murder and not capital murder.
When we review an allegation that the trial court erred in failing to give a requested lesser included offense charge, we must engage in a two part analysis. Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App. 2007). The first part of the analysis is a question of law, where we compare the elements of the offense as alleged in the indictment with the elements of the potential lesser included offense. Id. In the case before the Court, all parties have agreed that the requested lesser included offense, murder, is a lesser included offense under the capital murder statute, as indicted. See Tex. Code Crim. Proc. Ann. § 37.09(1) (Vernon 2006). The second step in the analysis requires that we review the evidence to ascertain if there is some evidence in the record that would permit a jury rationally to find that, if the defendant is guilty, he is guilty only of the lesser included offense. Hall, 225 S.W.3d at 536 (citing Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994)). This second step is the question for us to decide.
First, appellant’s argument is centered on the fact that no money was taken from the cash register or the deceased. Accordingly, appellant posits that this was not a murder committed during the course of committing robbery. This analysis does not consider that the indictment charged murder in the course of committing or attempting to commit robbery. The fact that no money was taken does not equate to proof that, if the appellant was guilty, he was guilty of only the lesser included offense. We must look to the statute involved to properly analyze appellant’s argument. The elements of robbery, as applicable here, are:
(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another;
Tex. Penal Code Ann. § 29.02(a)(1) (Vernon 2006). Furthermore, “in the course of committing theft” is defined as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” § 29.01(1). Courts in Texas have long recognized that the actual commission of the offense of theft is not a prerequisite to the commission of the offense of robbery. See Robinson v. State, 596 S.W.2d 130, 134 (Tex.Crim.App. 1980); Douglas v. State, No. 04-04-00059-CR, 2005 Tex.App. LEXIS 6063, at *6, (Tex.App.–San Antonio, August 3, 2005, pet. ref’d) (not designated for publication). This is so because the State is not required to show a completed theft to establish the corpus delicti of robbery. See Purser v. State, 902 S.W.2d 641, 647 (Tex.App.–El Paso 1995, pet. ref’d). See also Jefferson v. State, 144 S.W.3d 612, 613-14 (Tex.App.–Amarillo 2004, no pet.). What we conclude from these cases is that the failure to prove a completed theft does not, in and of itself, entitle appellant to a lesser included charge of murder.
However, we must also review the evidence to determine if there is more than a scintilla of evidence that would allow a rational jury to conclude that, if appellant is guilty, he is guilty of only the lesser included offense. Bignall, 887 S.W.2d at 23. The record clearly shows that, upon entering the market, appellant brandished a shotgun. The other employee heard someone say, “it’s a robbery.” The DVD showed appellant fire the shotgun before the deceased took any type of defensive or protective steps. The DVD also showed the other perpetrator, SanMiguel, go behind the counter and approach the cash register. Further, the jury heard, on the DVD, appellant say “get the money, Jake.” The State produced another inmate who testified that appellant told him, “I smoked the fool. He wouldn’t give me the money, so I smoked him.” Finally, appellant’s girlfriend told the jury that, on the night after the murder, appellant told her he shot the victim because “he wouldn’t give me the money.”
Appellant can only direct this Court to State’s counsel’s opening statement and the girlfriend’s testimony regarding appellant’s agitated state upon arriving home to show that there is a scintilla of evidence to support the requested lesser included offense charge. However, the State’s opening statement is not evidence. The girlfriend’s testimony was that appellant was “panicky and just like he was on ice.” Contrary to appellant’s interpretation of this testimony, it was merely descriptive of appellant’s demeanor and was not evidence that appellant was, in fact, on drugs. Further, even had he been on drugs, his intoxication would not negate any culpable mental state. See § 8.04
Based upon this record, we must conclude that the evidence appellant says entitles him to a lesser included charge does not rise to even a scintilla of evidence that would allow a rational jury to conclude appellant was guilty of only the lesser requested charge. Hall, 225 S.W.3d at 536. Accordingly, we overrule appellant’s second issue.
Photograph
Appellant’s next issue complains of the trial court’s admission into evidence of a certain photograph of the deceased that was taken at the scene of the crime. As the complaint relates to a decision of the trial court to admit evidence, we review that decision under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). An appellate court should affirm the trial court’s ruling unless it finds that the decision is not within the zone of reasonable disagreement. See Green v. State, 934 S.W.2d 92, 102 (Tex.Crim.App. 1996). Stated another way, we will find an abuse of discretion only when the trial court acted without reference to any guiding rules or principles by acting arbitrarily or unreasonably. See Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App. 1993). That a photograph is generally admissible if verbal testimony about the matters depicted therein is also admissible is a well known legal maxim. See Gallo v. State, 239 S.W.3d 757, 762 (Tex.Crim.App. 2007) (citing Williams v. State, 958 S.W.2d 186, 195 (Tex.Crim.App. 1997)). In determining whether the probative value of a photograph is outweighed by the inflammatory nature of the photograph, the court may consider the following, non-exhaustive, list: 1) the number of exhibits offered, 2) their gruesomeness, 3) their detail, 4) their size, 5) whether they are black and white or color, 6) whether they are close-up, and 7) whether the body depicted is naked or clothed. Id. A trial court does not commit reversible error simply because it admits a photograph into evidence that is of a gruesome nature. Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995).
The photograph at issue is marked as State’s Exhibit 5 and is a color photograph depicting the lower body of the decedent with blood on the floor around the body. Appellant posits that the photograph’s probative value was far outweighed by its inflammatory nature. The photograph at issue is a color photograph taken at the scene of the crime by an SAPD officer. The first officer on the scene testified that the photograph was an accurate depiction of the scene as he found it. The color photograph is five inches by eight inches in size. It depicts the victim fully clothed and is taken from several feet away, therefore, it is not a close up. It does not show the wound and depicts only the lower torso. There is considerable blood splattering shown, but the exact injuries of the victim are not seen in the photo. There were a total of 13 photographs of the scene admitted into evidence and this was the only one that showed the victim. This photograph does nothing more than portray the scene of the crime as it was found by the police. The trial court correctly applied the relevant case law in determining whether to admit the photograph into evidence. Gallo, 239 S.W.3d at 762. Accordingly, we cannot say that the trial court abused its discretion by admitting the photograph into evidence. Weatherred, 15 S.W.3d at 542. Appellant’s third issue is overruled.
Reading From Exhibit
Appellant’s fourth issue contends that the trial court erred in allowing a witness to read from an exhibit that was not introduced into evidence. Appellant’s contention is that the trial court allowed the testimony in violation of rules 612 and 803(5) of the Texas Rules of Evidence. See Tex. R. Evid. 612, 803(5). Rule 612 deals with the use of a writing to refresh a witness’s memory. Rule 803(5) is an exception to hearsay when a witness uses a recorded recollection to refresh his memory.
As the complaint relates to a decision of the trial court to admit evidence, we review that decision under the same abuse of discretion standard detailed above. See Weatherred, 15 S.W.3d at 542. However, we note that the complaint on appeal must comport with the objection lodged at trial. See Burks v. State, 876 S.W.2d 877, 908 (Tex.Crim.App. 1994) (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990)).
During the trial, the witness in question, Officer Lazcano, testified regarding video cameras located at the scene of the crime. Lazcano was shown two State’s exhibits, Nos. 24 and 25, and was asked, regarding State’s No. 24,
Q. Now I’d like to direct your attention to State’s Exhibit Number 24. Does this appear to be the DVD – or the CDR, I should say, that was taken into custody by Detective Petrowski from Ashwoin Gajera?
A. Yes, ma’am.
Appellant’s counsel then interposed the following objection.
Judge, I’m going to object if she’s going to read from anything, from a device or something that hasn’t been introduced into evidence.
The court overruled the objection. The witness was then asked another question regarding State’s Exhibit No. 24 and counsel for appellant lodged the same objection. The trial court again overruled the objection. It is clear from the questioning of the witness that the State was not trying to refresh the memory of the witness. It is also clear from the objection that appellant was not objecting to the testimony on the basis of hearsay.
The sole basis of the objection, as voiced to the trial court, was that the witness was testifying to matters contained on the exhibit and the exhibit had not been introduced into evidence. The issue raised in appellant’s brief is not the same as the objection lodged at trial. Therefore, we find that the alleged error was not preserved for review. Id. We note that, even if we construed the issue on appeal to deal with the officer testifying from an exhibit not introduced at trial, the objection was not timely made. A previous witness, Ashwoin Gajera, had testified to the same facts without objection; therefore, the appellant has waived any error by failing to object when the testimony was first introduced. See Stoker v. State, 788 S.W.2d 1, 12 (Tex.Crim.App. 1989). Appellant’s fourth issue is overruled.
Chain of Custody of the DVD
In his final issue, appellant posits that the trial court committed reversible error when it allowed the introduction of the DVD of the surveillance video into evidence without the establishment of a proper chain of custody. As in the two previous issues, we are dealing with the trial court’s decision to admit evidence. Thus, we refer the parties to the standard of review set forth under appellant’s third issue.
The trial record shows that Ashwoin Gajera testified that he maintained the surveillance cameras at the market in question. On the night of the murder, he went to the market at the behest of the owner and reviewed the surveillance videos captured on the hard drive of the computer with the police. He further testified that he made a CD Rom of the images and gave it to the police. The police officer with the technical surveillance unit of the SAPD, Officer Lazcano, testified that he viewed the CD Rom and transferred the data to a DVD. It is this DVD, that was marked as State’s Exhibit No. 26, that is in issue. Lazcano testified that the images on the DVD had not been altered in any manner and that they were exact copies of the images captured on the hard drive of the market’s computer. The record further reflects that the officer, who initially took possession of the CD Rom, did not testify. It is this gap in the chain of custody that appellant’s issue attacks.
The Texas Rules of Evidence provide that physical evidence requires sufficient authentication to support a finding that the exhibit in issue is what the proponent claims it to be. See Tex. R. Evid. 901(a). This has been interpreted to mean that Rule 901 requires only a showing satisfying the trial court that the matter in question is what its proponent claims. See Silva v. State, 989 S.W.2d 64, 67-68 (Tex.App.–San Antonio 1998, pet. ref’d). Such evidence is to be received if the trial court finds that a reasonable juror could find that the evidence was authenticated. Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Crim.App. 1996). See also Martinez v. State, No. 04-07-00147-CR, 2007 Tex.App. LEXIS 9830, at *4 (Tex.App.–San Antonio December 19, 2007, no pet.) (not designated for publication). Proof of the beginning and end of the chain of custody will support admission of an object barring any evidence of tampering or alteration. See Maranda v. State, 253 S.W.3d 762, 770 (Tex.App.–Amarillo 2007, pet. dism’d) (citing Stoker, 788 S.W.2d at 10). Without any evidence of tampering, questions concerning care and custody of the object go to the weight to be attached to the evidence and not to its admissibility. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997). The trial court has the discretion to determine the sufficiency of the evidentiary predicate. Maranda, 253 S.W.3d at 770.
Under the facts of this case, the trial court heard the testimony regarding how the data came to be captured on the hard drive of the computer at the market. Further, the testimony demonstrated how that data was transferred from the hard drive to the CD Rom and when and how the police took possession of the CD Rom. Finally, the State offered the testimony of the officer in charge of transferring the data to the DVD at issue, who testified that the DVD was an exact copy of the data contained on the CD Rom. From these facts, we are left with the conclusion that the trial court determined that the State had met the evidentiary predicate to admit the DVD. We cannot say that the trial court’s decision abused its discretion. Weatherred, 15 S.W.3d at 542. Therefore, we overrule appellant’s fifth issue.
Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Publish.