COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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RAYMON CARRASCO SANCHEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-01-00491-CR Appeal from the 385th District Court of Midland County, Texas (TC# CR26,843) |
O P I N I O N
Raymon Carrasco Sanchez appeals his conviction for two counts of indecency with a child by contact, after a jury trial. We affirm.
Facts
In the fall of 2000, Raymon Carrasco Sanchez began working as a bus monitor for the Midland Independent School District (MISD). His duties as bus monitor included supervising children during the bus ride and escorting the children from the bus into their destination building. While on the bus, it was common for Mr. Sanchez to entertain the children with games, pictures for coloring, and occasional treats of candy or gum. At all times while Mr. Sanchez was on the bus with the children, a bus driver was present.
On April 4, 2001, KK, a mentally retarded twelve-year-old girl with the functional level of a six- or seven-year-old child, rode the bus to a therapy session at the Cerebral Palsy Center (CP Center) in Midland. After her session at the CP Center, the bus then drove her to her father=s workplace Midland Small Engine. When KK arrived at the shop, she told her sixteen-year-old sister and her seventeen-year-old cousin that ARay@ had exposed his Aprivate@ to her and encouraged her to touch it, which she did. The sister then told KK=s father and called KK=s mother, who immediately left her workplace. While talking to her mother, KK mentioned another time that Sanchez had done this.
The following day Kay Therwhanger, a detective with the Midland Police Department, interviewed both KK and Sanchez. During KK=s interview, the girl stated that Sanchez had exposed himself to her and that she had touched his penis, and he was wearing green underwear that was exposed through his unzipped pants.
That afternoon Detective Therwhanger and Detective John Beasley went to the MISD bus barn five miles outside the city of Midland. Detective Therwhanger asked Mr. Sanchez to accompany her and Detective Beasley to the police station for an interview. Mr. Sanchez agreed and the three rode to the station in an unmarked car driven by Detective Beasley. At the station house, the interview was not recorded in any manner. Although Detective Therwhanger felt she had sufficient probable cause and considered him a suspect, Sanchez was not arrested at this time and did not receive Miranda warnings. Sanchez confirmed to Therwhanger that he had worn green underwear on the prior day. Detective Therwhanger told Sanchez at the end of the interview that he would be arrested a few days later, which he was.
Sanchez testified he had admitted to owning a green pair of boxer shorts with white stripes, but not to wearing them the prior day. Both during the interview with Detective Therwhanger and at trial, Mr. Sanchez denied exposing himself to KK or causing her in any way to touch his penis.
Non-custodial statement
In his second point of error, Sanchez claims that statements he made to detectives in a pre-arrest interview were involuntary and made without proper Miranda warnings during a custodial interrogation, and thus should have been excluded. Although there was no formal pretrial suppression hearing, the trial court determined that the statements were admissible outside the jury=s presence. The trial judge allowed Detective Therwhanger to testify that Sanchez had told her during their initial interview that he had been wearing green underwear the day before.
The determination of whether a defendant was in custody at the time he gave statements is a mixed question of law and fact. Since here the decision does not depend upon the credibility or demeanor of witnesses before the trial court, we review the custody question de novo. In re D.A.R., 73 S.W.3d 505, 509-10 (Tex. App.--El Paso 2002, no pet.); Jeffley v. State, 38 S.W.3d 847, 853 (Tex. App.--Houston [14th Dist.] 2001, pet. ref=d). Once the custody issue is determined, the trial judge=s decision to allow testimony into evidence is reviewed on an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996).
The voluntariness of a statement is only an issue if the information was the result of a custodial investigation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.--Austin 1997, no pet.). Miranda and Article 38.22 of the Texas Code of Criminal Procedure governing when statements by the defendant may be used against that defendant at trial apply only to statements made as a result of custodial interrogation. Id. at 215; Morris v. State, 897 S.W.2d 528, 531 (Tex. App.--El Paso 1995, no pet.). Determining whether an individual is in custody must be done on a case-by-case basis considering all objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). A person is in Acustody@ only if, under the circumstances, a reasonable person would believe Athat his freedom of movement was restrained to the degree associated with a formal arrest.@ Id. at 254 (citing Stansbury v. California, 511 U.S. 318, C, 114 S.Ct. 1526, 1528-1530, 128 L. Ed. 2d 293, 298-299 (1994)); see also Rodriguez, 939 S.W.2d at 216. The standard of a Areasonable person@ presupposes an innocent person. Dowthitt, 931 S.W.2d at 254 (citing Florida v. Bostick, 501 U.S. 429, 438, 111 S.Ct. 2382, 2388, 115 L. Ed. 2d 389 (1991)). Moreover, Aa police officer=s subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody . . . .@ Stansbury, 511 U.S. at 324, 114 S.Ct. at 1529-30; Dowthitt, 931 S.W.2d at 254. This is so even when the police interview a person who is the focus of the criminal investigation. Stansbury, 511 U.S. at 324, 114 S.Ct. at 1529. However, if the officer=s knowledge or beliefs are conveyed, they may bear upon the issue of whether or not the person is in custody, but only to the extent that they would affect how a reasonable person being questioned would gauge the breadth of his or her Afreedom of action.@ Id. at 325, 114 S.Ct. at 1530. AEven a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest.@ Id.
After Stansbury, the inquiry into whether someone is in custody relies solely upon an Aobjectively reasonable person under similar circumstances@ test.[1] The subjective belief of the suspect or the undisclosed subjective intent of the interviewing police officer are no longer part of the equation. Dowthitt, 931 S.W.2d at 254-55; Rodriguez, 939 S.W.2d at 216.
Briefs for both appellant and appellee cite and emphasize the four custody situations mentioned in Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985), and Dowthitt, 931 S.W.2d at 255.[2] We must look at all the circumstances surrounding the interrogation, but Athe ultimate inquiry is simply whether there [was] a >formal arrest or restraint on freedom of movement= of the degree associated with a formal arrest.@ California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520 (1983); Rodriguez, 939 S.W.2d at 216.
AStationhouse questioning does not, in and of itself, constitute custody.@ Dowthitt, 931 S.W.2d at 255. Here we find the questioning of Mr. Sanchez did not cross the line into custodial interrogation. In a similar case, after noting that no law prohibits police officers from requesting individuals to accompany them to the station for an investigation nor any law that forbids one from rejecting such requests, the Austin Court of Appeals stated that A[i]f the circumstances show that the individual acts upon the invitation or request of a police officer and there are no threats, express or implied, that he will be forcibly taken, then that person is not in custody for the purposes of Miranda.@ Rodriguez, 939 S.W.2d at 217. AThe fact that a noncustodial situation involved a >coercive environment= is not sufficient to constitute custody for Miranda purposes.@ Id. (citing Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714 (1977)). The Rodriguez court found that the defendant was not in custody at the time and that Miranda warnings, though given, were not necessary. Id.
Here, similarly, the interview by Detective Therwhanger was not Acustody.@ It is true that Sanchez was the focus of allegations made by KK; the detectives investigating the matter did approach him at his workplace; Sanchez did accompany them to the station house, and did speak with them in the unlocked interview room. There is no evidence, however, to suggest that any of this was involuntary. At no point was Mr. Sanchez physically compelled to accompany the officers to the station house or to speak with them. He was not placed under arrest nor was he handcuffed. The record does not show that he was ever denied any request to leave. Whether he participated in the interview because of a sense of guilt associated with the crime, some fear of or respect for authorities, or just a sense of being a good citizen called upon to help with the investigation is irrelevant to the objective inquiry of whether he was in custody on April 5 when he spoke with Detectives Beasley and Therwhanger. Thus, the trial court was correct in concluding that Mr. Sanchez was not in custody. Sanchez=s second point of error is overruled.
No need for findings where no custodial interrogation
Appellant=s first point of error claims that the cause should be remanded for entry of findings of fact and conclusions of law regarding the statements to Detective Therwhanger. In light of our conclusion that Mr. Sanchez was not in custody at the time he spoke with Detectives Therwhanger and Beasley, no findings of fact or conclusions of law were required. Cerda v. State, 10 S.W.3d 748, 752 (Tex. App.--Corpus Christi 2000, no pet.) (citing Wicker v. State, 740 S.W.2d 779, 783-84 (Tex. Crim. App. 1987)). Sanchez=s first point of error is overruled.
Error waived on any improper comment by trial court
Sanchez=s third point urges that the trial court erred by commenting to the jury on his right to silence. We find any error was waived by Sanchez=s failure to object to the challenged comment.
After the State rested its case-in-chief, the trial judge announced to the jury, AThere are a couple of matters we need to take care of before we ask the Defendant to start his testimony.@ The jury was then removed for a ten minute recess. There was no objection by either party to the court=s comment. Following the recess, Sanchez did introduce testimony from witnesses, and he took the stand in his own defense.
Appellant argues that the trial court=s statement was an improper comment to the jury regarding the defendant=s right to remain silent as guaranteed by the Fifth Amendment of the United States Constitution, Article 1, Section 10 of the Texas Constitution, and Article 38.08 of the Texas Code of Criminal Procedure, and further was fundamental error not requiring an objection. We disagree that the comment constituted fundamental error.
Generally, counsel must object to the trial judge=s improper comments during trial in order to preserve error. Tex. R. App. P. 33.1; Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality opinion). However, the Court of Criminal Appeals has found that A>[s]ome rights are widely considered so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly.=@ Blue, 41 S.W.3d at 131 (citing Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds).
Marin set forth three categories into which the rules of the judicial system fall: A(1) absolute requirements and prohibitions; (2) rights of litigants which must be implemented by the system unless expressly waived; and (3) rights of litigants which are to be implemented upon request.@ Marin, 851 S.W.2d at 279. The first are independent of the litigant=s wishes and cannot be waived or forfeited by the parties. Id. These include jurisdictional matters, as well as nonjurisdictional principles of due process and separation of powers that render conflicting legislation void from its inception. Id. (citing Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980); Ex parte Stanley, 703 S.W.2d 686 (Tex. Crim. App. 1986); Rose v. State, 752 S.W.2d 529, 552-553 (Tex. Crim. App. 1988)). Other absolute requirements found by courts are: that a district court must conduct its proceeding at the county seat, the constitutional prohibition on ex post facto laws, and certain constitutional restraints on the comments of a judge. Saldano v. State, 70 S.W.3d 873, 888-89 (Tex. Crim. App. 2002) (citing Stine v. State, 908 S.W.2d 429 (Tex. Crim. App. 1995) (plurality opinion); Ieppert v. State, 908 S.W.2d 217 (Tex. Crim. App. 1995); Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000)).
In Blue v. State, upon which Sanchez relies in claiming fundamental error, the trial court=s comments were an egregious violation of defendant=s rights. There, the court inexplicably told the jury that the defendant had received a plea offer and was contemplating whether to accept it and plead guilty. Blue, 41 S.W.3d at 130. The trial court stated that he would Aprefer@ that the defendant plead, implying that the plea should be one of guilty. Id. Then the trial judge attempted to explain why a defendant, though innocent, might decide to not testify. Id. In his explanation, he included an illustrative example of an attorney, putting a guilty ASister Teresa@ on the stand because she looks so innocent and Anobody thinks she would tell a lie.@ Id. Defendant Blue did not object to any of these statements. Id. The Court of Criminal Appeals, by a plurality, found that the trial judge=s comments tainted the presumption of innocence of the defendant, and that such comment was fundamental error of constitutional dimension not requiring objection at trial. Blue, 41 S.W.3d at 129, 132. Two judges concurred, finding that the judge=s comments violated the right to an impartial judge or an impartial tribunal. Id. at 135.
Clearly, comments that taint the defendant=s presumption of innocence are fundamental and require no objection. United States v. Bray, 546 F.2d 851 (10th Cir. 1976); United States v. Lanham, 416 F.2d 1140 (5th Cir. 1969). Likewise, the right to an impartial judge or tribunal has always been recognized. U.S. Const. amend. V, VI; Tex. Const. art. I, '' 10, 19. It is because these rights were implicated that the comments were held to be fundamental and subject to assertion for the first time on appeal. Oulare v. State, 76 S.W.3d 231, 233 (Tex. App.--Amarillo 2002, no pet.). Nevertheless, in Blue, one writer warned that the judge=s comments were Aso egregious@ as to deem him biased and that the case was Ahighly unique and litigants should not view this holding as an invitation to appeal without making proper, timely objections.@ Blue, 41 S.W.3d at 139 (Keasler, J., concurring).
Declaring an error to be so fundamental as to require no objection during trial is something we must approach with great caution. This caution is reflected in several opinions distinguishing Blue. See Saldano, 70 S.W.3d 873 (equal protection and due process violations in admission of expert testimony that race and ethnicity were a factor in determining future dangerousness was not fundamental error); Oulare, 76 S.W.3d 231 (comments of trial judge purportedly implying that police officers were telling the truth and that identified the jurors as Aa vital part of our government@ was not fundamental error); Calderon v. State, 950 S.W.2d 121, 140 (Tex. App.--El Paso 1997, no pet.) (defendant=s failure to object waived complaint of prosecutor=s improper comment on the defendant=s failure to testify).
We recognize that in our system, where the trial judge sits as an impartial arbiter in a proceeding where the prosecutor and the defendant obviously take sides, some distinction must be made between improper comments by counsel and those by the court. See Blue, 41 S.W.3d at 131 (citing Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. 411, 415 (1919)). Fundamental to the legal system is the notion that a defendant must be afforded the presumption of innocence. Blue, 41 S.W.3d at 132. A corollary to this is that a trial judge should not impress upon the jury his or her view of how the case should be decided. Blue, 41 S.W.3d at 131 (citing Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. at 415). This is at the heart of the rules forbidding judges to comment to the jury on the weight of evidence presented as well as in the prohibition on judges acting as witnesses in a case in which they are sitting as the presiding judge. Tex. Code Crim. Proc. Ann. art. 38.05 (Vernon 1979); Tex. R. Evid. 605. Nevertheless, in contrast to the egregious comments in Blue, the trial court here did not show bias nor attack the basic structure or presumptions of the criminal justice system. We cannot say his comment, albeit ill-advised, constituted fundamental error, particularly as Sanchez did indeed present evidence and did testify himself.[3] Sanchez=s third point of error is overruled.
Proceeding to verdict with eleven jurors
Appellant=s fourth point of error claims that the trial court should have declared a mistrial after one juror discovered he was related to the complaining witness. We disagree.
During trial, juror Norman Brown realized that his wife was the cousin of the complaining witness=s stepmother. The juror stated that he did not know the stepmother=s married name and only recognized the connection when he saw the stepmother=s parents in the courtroom. When asked about the witness, Juror Brown stated, AI don=t think I have ever seen her or heard of her. I have never met her.@ The juror also stated that his decision would not be altered by the relationship.
During jury selection after one prospective juror mentioned knowing a Awhole bunch of kids@ at the school that KK attended, the prosecuting attorney inquired, AAnybody else here know K____ K____? The mother is Cydne Robbins. The father is Ray K____.@ Counsel for Mr. Sanchez asked a general question of the panel, A[D]oes anybody know anybody named K____?@ While several panel members responded to the question, Brown did not. Appellant=s trial counsel informed the court that had he known Brown was related to KK, he would have exercised a challenge.
Counsel for Sanchez moved for a mistrial or, in the alternative, AI would even be willing to go forward, after we have done a day and a half, with eleven jurors, if the State would be willing to do that and the Judge would consent to it.@ After the trial judge denied the motion for mistrial, counsel repeated his request to proceed with eleven jurors, which the trial court initially denied.
The next day, before final argument and jury deliberations, the judge reconsidered his ruling in light of Hatch v. State, 958 S.W.2d 813 (Tex. Crim. App. 1997). Based upon that decision, the judge prepared a document reflecting defendant=s waiver of a twelve person jury in favor of eleven jurors. After the judge presented this document, Mr. Sanchez and his counsel requested a moment to speak in the hallway, which was granted. The trial court then proceeded as follows:
THE COURT: Okay. Let=s go on the record a minute. The Court has been handed a copy of a document titled Waiver of Trial by Jury, which in the body of indicates that the Defendant is asking the Court and requesting the Court excuse Juror Norman Keith Brown, and waiving his right to a trial by a jury of twelve persons and consenting to a trial by jury of eleven persons.
It appears to be signed by Mr. Sanchez and by his attorney, Mr. McLeaish. You did sign this, is that right, Mr. Sanchez?
THE DEFENDANT: Yes, I did.
THE COURT: Is that what you are asking me to do?
THE DEFENDANT: Yes, your Honor.
THE COURT: And that=s what you want me to do?
THE DEFENDANT: Yes, your Honor.
THE COURT: You have talked to your attorney about this, Mr. McLeaish?
THE DEFENDANT: Yes, sir.
THE COURT: You believe you understand your rights to a trial by jury, and the fact that you have a right to continue with a trial by twelve, and appeal the fact that I may have made a mistake in requiring you to go forward; do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: But your desire is to ask that Mr. Brown be excused, and go to the jury with just eleven persons?
THE DEFENDANT: Yes, sir.
THE COURT: And accept their verdict?
THE DEFENDANT: Yes, your Honor.
The jury of eleven later returned a unanimous verdict of guilty on each of the two charges. All eleven jurors signed the verdicts in both the guilt and punishment phases.
Appellant claims that he was harmed because he was forced to waive his right to trial by a jury of twelve persons in order to protect his constitutional right to an impartial jury. The record reflects that proceeding with eleven jurors was an option first suggested by appellant as an alternative to mistrial. Under Hatch v. State, overruling Ex parte Hernandez, 906 S.W.2d 931(Tex. Crim. App. 1995), proceeding with eleven jurors is permissible if the defendant waives his statutory right to have a jury composed of not less than twelve persons return a verdict in a noncapital case. Hatch, 958 S.W.2d at 816. All parties agreed to this when they signed the waiver.
When one juror is found to be objectionable, removing that juror from the panel is a preferred remedy to mistrial, which should be limited only to situations of Amanifest necessity.@ Ex parte Fierro, 79 S.W.3d 54, 56 (Tex. Crim. App. 2002). That is particularly so when, as here, the appellant requests that remedy and waives his right to a jury of twelve. The Court of Criminal Appeals even suggests in Ex parte Fierro that some situations may allow a questionable juror to remain on the panel, rather than force a mistrial. Id. at 57. Not considering these alternatives would have been an abuse of discretion by the trial court judge. Id. The judge in this case correctly considered and chose between the options. Sanchez=s fourth point of error is overruled.
Conclusion
The trial court=s judgment is affirmed.
SUSAN LARSEN, Justice
October 17, 2002
Before Panel No. 1
Larsen, McClure, and Chew, JJ.
(Do Not Publish)
[1]Prior to Stansbury, four factors were considered relevant to the inquiry of whether a person was in custody: (1) probable cause to arrest, (2) subjective intent of the police, (3) focus of the investigation, and (4) subjective belief of the defendant. Dowthitt, 931 S.W.2d at 254 (citing Meek v. State, 790 S.W.2d 618, 621, 622 (Tex. Crim. App. 1990)). Under Stansbury, the subjective considerations have fallen away from the inquiry, at least in matters concerning adult defendants. Dowthitt, 931 S.W.2d at 254; Rodriguez, 939 S.W.2d at 216; see also In re D.A.R., 73 S.W.3d at 510-11.
[2]Dowthitt provides:
We have outlined at least four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Shiflet, 732 S.W.2d at 629. Concerning the first through third situations, Stansbury indicates that the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Concerning the fourth situation, Stansbury dictates that the officers= knowledge of probable cause be manifested to the suspect. Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Moreover, given our emphasis on probable cause as a >factor= in other cases, situation four does not automatically establish custody; rather, custody is established if 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 an arrest. Dowthitt, 931 S.W.2d at 255.
[3]Sanchez argues that the trial court=s comment, made before the defense began its case, could have resulted in defendant feeling compelled to testify. He relies upon Henderson v. State, 13 S.W.3d 107, 110 (Tex. App.--Texarkana 2000, no pet.). We see two flaws in this argument. First, there is simply no evidence in this record that Sanchez felt compelled to testify following the trial court=s remark. Second, the remark is not such a clear reference to Sanchez=s intention to testify that we could find a coercive effect without some evidence to support the claim. We therefore believe Henderson is distinguishable.