COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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RUBEN PEREZ, ) No. 08-03-00300-CR
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Appellant, ) Appeal from
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v. ) 384th District Court
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THE STATE OF TEXAS, ) of El Paso County, Texas
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Appellee. ) (TC# 20000D04683)
O P I N I O N
Ruben Perez appeals his conviction of two counts of aggravated robbery. Appellant entered a plea of guilty before a jury. The jury found him guilty and assessed punishment at a $10,000 fine and imprisonment for a term of sixty years on each count. The trial court entered in the judgment an affirmative deadly weapon finding. Finding no error, we affirm.
FACTUAL SUMMARY
During the summer of 2000, Appellant and two accomplices, Yvette Talamantes (his common-law wife) and Joseph Barela, committed several aggravated robberies and attempted carjackings on Scenic Drive in El Paso. The instant case involves an aggravated robbery and car jacking of four victims committed on July 9, 2000.
The crime spree began on June 30, 2000, when Appellant, who was on community supervision for possession of five to fifty pounds of marihuana, robbed a pizza-delivery driver at gunpoint. A few days later, on July 4, Appellant forced Manuel Ruiz, who owed Appellant $20 for drugs, to commit a robbery in order to get money to pay Appellant. Appellant provided Ruiz with the gun to commit the robbery. Ruiz robbed an off-duty police officer at an El Paso bar. Shortly before the commission of the instant offense, Appellant, Barela, and Talamantes went to Scenic Drive for the purpose of committing a carjacking. Barela shot Sergio Espinoza in the face and shot Josie Gonzalez Espinoza five times. Appellant and Barela were unable to steal the car and fled in their car with Talamantes. Both victims survived. On a subsequent occasion, Appellant and Barela approached a car parked on Scenic Drive, but the driver was able to speed away. Barela fired a shot at the vehicle. On July 9, 2000, Appellant and Barela returned to Scenic Drive. Appellant, armed with a handgun, threatened four people with the gun and stole their car. Talamantes acted as the getaway driver. One week after the Scenic Drive offenses, Appellant approached a man in the parking lot of a bar and attempted to rob him at gunpoint. The man escaped into the bar and called the police. Police captured Appellant after a chase and some resistance. Appellant gave two written statements admitting his involvement in these offenses. A grand jury returned a four-count indictment for the aggravated robbery of the four victims committed on July 9, 2000. At his jury trial, Appellant entered a plea of guilty to two of the four counts and the State dismissed the other two counts. The jury assessed Appellant’s punishment at a $10,000 fine and imprisonment for a term of sixty years on each count.
VOLUNTARINESS OF STATEMENTS
In Point of Error One, Appellant contends that his written statements were involuntary and that he did not knowingly waive his right to counsel because he was intoxicated, he had been injured during his arrest, and the police exerted undue influence on him through sleep deprivation, injury and promises of family visits. Appellant filed a motion to suppress, claiming that his written statements were involuntary, coerced, or enticed and he did not intelligently or knowingly waive his right to counsel.
At a pretrial suppression hearing, Officer Randal Stevenson testified regarding his participation in the chase and apprehension of Appellant. At about 1:10 a.m., Stevenson heard a dispatch regarding an armed suspect fleeing from a westside bar. Stevenson drove into an apartment complex and saw an individual, later identified as Appellant, being chased by another police officer. Seconds later, Stevenson heard a shot fired and radioed that information before exiting his vehicle to help apprehend Appellant. Initially, Stevenson and other officers could not find Appellant despite an extensive search in the apartment complex, but Stevenson found him hiding in some bushes. Stevenson ordered him to get up and show his hands, but Appellant kept his left hand hidden from view and complained that his leg was hurting. Appellant leaned down out of sight, making Stevenson fear he was retrieving his weapon, and when he stood back up, held up his left hand while keeping his right hand hidden. While Stevenson kept his weapon trained on Appellant, the other two officers tackled Appellant and took him to the ground face first. Appellant began striking both officers with his hands and kicking them. After a struggle, they subdued Appellant and handcuffed him. Stevenson advised Appellant of his Miranda rights. Stevenson noticed that Appellant smelled heavily of alcohol. Pictures taken of Appellant at the scene reflect scrapes, bruises, and cuts on his face as well as a “goose egg” on his forehead. Appellant refused treatment for his injuries. He did not have a handgun on his person. The officers placed Appellant in a patrol car at approximately 1:30 and continued to look for the weapon. After a two and a half hour search, they found the handgun hidden in some bushes and transported Appellant to Crimes Against Persons around 4 a.m. Once at CAP, Stevenson allowed Appellant to use the restroom and to wash his face before taking him to an interview room. Stevenson talked with Appellant for a while about his family and prior record but he did not record the conversation. Appellant rested in a chair with his eyes closed, but Stevenson was not sure whether he was asleep. Stevenson described Appellant as calm, in start contrast to his demeanor earlier that evening.
Detective Gonzalo Chavaria was assigned to investigate the crimes which had taken place on Scenic Drive in July of 2000. On July 16, 2000, Chavaria interviewed Appellant at 11:30 a.m. in the CAP office. Chavaria read the Miranda warnings to Appellant. Appellant said he understood his rights, but waived them and agreed to speak with Chavaria. He spoke with Appellant only a few minutes before being interrupted by his supervisor who asked him to include Appellant’s photo in a photo lineup and show it to one of the victims from the Scenic Drive carjackings. Chavaria went to an El Paso hospital and showed the lineup to Josie Gonzalez Espinoza, who immediately identified Appellant as having been involved in the attempted carjacking. Chavaria returned to CAP and resumed his interview of Appellant at about 12:30 p.m. that same day and spoke with Appellant for a couple of hours. During this time, Appellant ate lunch and was permitted to use the restroom. He also had several cigarette breaks and Chavaria allowed Appellant to visit with Talamantes. Appellant agreed to give Chavaria a written statement at about 3:30 p.m. Chavaria typed the statement on a computer while talking with Appellant. He printed the statement and Appellant read it out loud in Chavaria’s presence before signing it at 5:21 p.m. The first paragraph of the statement includes the statutory warnings required by Article 38.22 of the Code of Criminal Procedure. Appellant expressly waived his rights and signed the written statement. Chavaria did not threaten Appellant or make him any promises. Appellant did not want a lawyer and he never asked to terminate the interview. Appellant had scrapes on his face but he did not appear to need any type of medical assistance and did not ask for any treatment for his injuries. He was not intoxicated at the time Chavaria spoke with him or when he made and signed the written statement. In the statement, Appellant admitted his involvement in the attempted carjacking and shooting of Sergio and Josie Espinoza, but stated that his cousin “Ritchie,” not Talamantes, was the getaway driver.
After the police discovered that Appellant had lied about his cousin’s involvement in the Scenic Drive offenses, Chavaria spoke with Appellant again at 11 p.m. Appellant waived his rights and gave a second written statement, signed around midnight, admitting he had lied about his cousin being involved in the Scenic Drive offenses. He claimed a female had been present with them but denied knowing her name. The statement provides:
I am not handcuffed, I am sitting on the chair while giving this statement. I have eaten a burger and fries earlier. I have gone to the restroom several times and have also drank water and a soda. I have been sitting and resting most of the time while waiting for the investigation.
At the unitary proceeding, Appellant’s counsel renewed his prior objections to both statements. The court noted those objections for the record and admitted both statements. Appellant did not testify at trial in support of his claim that his statements were involuntary.
Standard of Review
When we review a trial court’s ruling on a motion to suppress a confession, we apply the standard of review enunciated in Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Under the Guzman standard, we give almost total deference to a trial court’s determination of historical facts supported by the record, especially when the trial court’s fact-findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We afford the same amount of deference to the trial court’s rulings on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. However, we review de novo mixed questions of law and fact not falling within this category. Id. In the case at bar, the trial court did not make explicit findings of historical fact; therefore, we assume the judge made whatever appropriate implicit findings are supported by the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000); Guzman, 955 S.W.2d at 89-90. The trial court’s determination that Appellant’s statements are voluntary necessarily turns on an evaluation of Officer Stevenson’s and Detective Chavaria’s credibility and demeanor. Therefore, we will give substantial deference to the court’s implied findings.
Intoxication, Injury and Coercion
An accused’s statement may be used against him if it is made freely and voluntarily. Tex.Code Crim.Proc.Ann. art. 38.21 (Vernon 2005). We determine the voluntariness of the statement by examining the totality of the circumstances surrounding the taking of the statement. Griffin v. State, 765 S.W.2d 422, 429 (Tex.Crim.App. 1989). Intoxication alone is insufficient to render a confession involuntary. See Nichols v. State, 754 S.W.2d 185, 190 (Tex.Crim.App. 1988). The central question is the extent to which Appellant was deprived of his faculties due to the intoxication. Nichols, 754 S.W.2d at 190. While Appellant smelled of alcohol at the time of his arrest, there is no evidence Appellant was intoxicated when he gave his first written statement twelve hours later. To the contrary, Chavaria affirmatively testified Appellant was not intoxicated. Appellant also complains that as a result of the physical injuries suffered during his arrest, he was unable to understand, invoke, or waive his rights. The trial court heard evidence regarding the manner in which Appellant was subdued by police and viewed photographs of the injuries to Appellant’s face. Appellant declined medical treatment. There is no evidence from which it can be concluded that Appellant’s injuries were so severe that he could not understand, invoke, or waive his rights. Consequently, the injuries do not raise an issue related to voluntariness of the written statements. See Butler v. State, 872 S.W.2d 227, 235-36 (Tex.Crim.App. 1994)(where there was no evidence that injuries sustained prior to interview affected the defendant’s ability to knowingly waive his rights, an issue as to voluntariness was not raised).
The record also fails to support Appellant’s claim that he was coerced through means of sleep deprivation and promises of family visits. According to Stevenson, Appellant appeared to be sleeping in the interview room, or at least had his eyes closed, before Chavaria arrived. In his second statement, Appellant said he had been sitting and resting, and had been given food to eat, and a soda and water to drink. Chavaria permitted Talamantes to visit with Appellant. Chavaria testified that Appellant did not ask to see and was not denied access to anyone else.
There is no evidence supporting Appellant’s contention that his statements were involuntary. To the contrary, the record supports the trial court’s implicit finding that the statements were voluntary under the totality of the circumstances. For these reasons, the trial court did not abuse its discretion in admitting the written statements into evidence. Point of Error One is overruled.
CHANGE OF VENUE
In Point of Error Two, Appellant argues that the trial court erred by denying his motion for change of venue because (1) the State’s affidavits are deficient, and therefore, he is entitled to a change of venue as a matter of law; and (2) the prejudice against Appellant generated by media coverage of the Scenic Drive offenses and his co-defendant’s trial made it impossible for him to obtain a fair trial in El Paso County.
Approximately one month before trial was scheduled to begin, Appellant filed a motion requesting that venue be moved to Bexar County. He supported the motion with affidavits by his attorney, Patrick Lara, Dolph Quijano, Jr. (counsel for Yvette Talamantes), and attorney Joseph D. Vasquez. Each affidavit stated it was impossible for Appellant to obtain a fair and impartial trial in El Paso County due to prejudice against him. The State responded to the motion with five controverting affidavits, each of which contained the following paragraph:
I have read the Defendant’s affidavit in support of Defendant’s Motion for Change of Venue in this cause. The affiant of said Affidavit is not credible as he is prejudiced to his own position and his means of knowledge are not sufficient to support and justify the statements contained therein. Furthermore, the Defendant can receive a fair and impartial trial in El Paso County, Texas.
At the hearing on the motion, Barela’s attorney, Jim Darnell, testified that his trial strategy included blaming Appellant for the Scenic Drive shootings. Darnell utilized the strategy during interviews with the television media. In his opinion, prejudice against Appellant resulting from the media coverage would prevent him from obtaining a fair trial in El Paso County. Darnell admitted on cross-examination that the Scenic Drive offenses received significant coverage when they occurred but the coverage had diminished when Barela’s trial took place in 2002. The newspaper did not provide significant coverage of Barela’s trial and Darnell did not know how many stories aired on local television stations. However, he did recall that some stories mentioned Appellant. Several people, including Darnell’s barber, told Darnell they saw his interviews on television but he did not know how many people were influenced by the media coverage.
Luis Islas, a second attorney who represented Barela, testified that he did not believe Appellant could get a fair trial in El Paso County due to the negative publicity he received during Barela’s trial. However, Islas was unaware of the content of any news stories pertaining to Barela’s trial and did not know whether anyone had been influenced by the media coverage.
Dolph Quijano, Jr. also testified at the hearing. Based on his experience as a criminal defense attorney, media reports he had seen, and conversations with members of the community, Quijano did not believe Appellant could receive a fair trial in El Paso County. As one example of these conversations, Quijano’s wife had spoken with other women at a nail salon who expressed prejudice against the defendants accused of the Scenic Drive crimes. Quijano admitted that he did not know how much media coverage had been given to Barela’s trial, how many people had seen or heard it, or whether anyone had been influenced by it.
Joseph Vasquez also testified at the hearing that, in his opinion, Appellant could not obtain a fair trial based on the media coverage of Barela’s trial. Like the other witnesses, Vasquez did not know the extent to which the media had covered the trial, how many people had seen it, or whether anyone had been influenced by the media coverage. Due to the absence of a witness, the trial court continued the hearing until a later date.
At a subsequent hearing, the State withdrew three of the five controverting affidavits it had filed, leaving only the affidavits of two police officers, Frank Zubia and Fernie Yanez. Zubia testified that he had read the affidavits of Quijano and Vasquez but he had not spoken with them about the case. Consequently, Zubia could not state whether either Quijano or Vasquez were credible, and he expressed a willingness to withdraw that part of his affidavit. The prosecutor stipulated that Sergeant Yanez would testify similarly.
At the conclusion of the hearing, the prosecutor argued that Appellant had failed to show that pretrial publicity was so pervasive or prejudicial that he could not get a fair trial and he had failed to show any actual prejudice from the publicity. Further, the prosecutor asserted that the affidavits of Zubia and Yanez were sufficient to place the venue issue before the court. In response, defense counsel argued that because the officers withdrew the portions of their affidavits challenging the credibility of Appellant’s affidavits, he was entitled to a change of venue as a matter of law. The trial judge took the motion under advisement and eventually determined that a panel of 150 potential jurors would be empaneled; if one-third of the panel stated they were familiar with the case, had formed an opinion and could not be fair, he would reconsider the motion to change venue. At voir dire, only thirty-nine members of the 150 member panel had heard of the case, and of those, only eleven had formed an opinion.
Relevant Law/Standard of Review
Article 31.03 of the Code of Criminal Procedure provides:
A change of venue may be granted in any felony or misdemeanor case punishable by confinement on the written motion of the defendant, supported by his own affidavit and the affidavit of at least two credible persons, residents of the county where the prosecution is instituted, for either of the following causes, the truth and sufficiency of which the court shall determine:
1. That there exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial; and
2. That there is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial. [Emphasis added.]
Tex.Code Crim.Proc.Ann. art. 31.03(a)(Vernon 1989). When a defendant files a sufficient motion for change of venue and the State fails to file controverting affidavits, a defendant is entitled to a change of venue as a matter of law. Cooks v. State, 844 S.W.2d 697, 730 (Tex.Crim.App. 1992). However, when a defendant, as in this case, participates in a hearing on the merits of a venue motion and allows the State to put on evidence, the issue becomes one of fact for determination by the trial court. Id. The standard of review is whether the trial court abused its discretion in refusing to grant the motion for change of venue. Ransom v. State, 789 S.W.2d 572, 579 (Tex.Crim.App. 1989). Absent a showing by the defendant that there exists such prejudice in the community that the likelihood of obtaining a fair trial by an impartial jury is doubtful, we will not disturb the trial court’s decision to deny the motion to change venue. Id.
Assuming Appellant’s motion was proper, Appellant was not entitled to a change of venue as a matter of law because he participated in the hearing on his motion. Cooks, 844 S.W.2d at 730. The State additionally argues that Appellant’s motion was defective because it was not supported by his own affidavit, and therefore, the trial court did not abuse its discretion by denying the motion. It is well established that if the defendant’s motion is defective, the trial court does not abuse its discretion by denying the motion without a hearing. Lundstrom v. State, 742 S.W.2d 279, 281 (Tex. 1986). Although the trial court went forward with a hearing and took no further action on the motion following voir dire, we conclude the court did not abuse its discretion by denying the defective motion for change of venue. See LaFleur v. State, 79 S.W.3d 129, 132 (Tex.App.--Texarkana 2002, no pet.); Cover v. State, 913 S.W.2d 611, 616 (Tex.App.--Tyler 1995, pet. ref’d). Point of Error Two is overruled.
JUDGE’S COMMENTS
In Point of Error Three, Appellant contends that the trial court made an improper negative comment on Appellant’s Fifth Amendment right to remain silent. During voir dire, the trial judge discussed with the jury a defendant’s right not to testify in some detail. The trial judge explained this right as it exists in the legal system, contrasting it in humorous fashion with how he expects his children to answer all of his questions and does not permit them to “take the Fifth.” The judge went on to explain that there are many reasons why a person might not testify, none of which has anything to do with guilt, and he would instruct the jurors that they could not consider Appellant’s failure to testify for any reason. The court then determined whether any venire members could not follow the instructions.
On appeal, Appellant argues that the court’s comment that the Fifth Amendment did not apply outside of the legal system, such as in his dealings with his children, was a negative and improper comment on this constitutional right. However, Appellant did not object to the court’s comments. A comment on an accused’s failure to testify violates the accused’s federal and state constitutional privileges against self-incrimination and the right to not be compelled to testify. See Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001). Ordinarily, a defendant must object to such comments in order to preserve error. See Martinez v. State, 833 S.W.2d 188, 191 (Tex.App.--Dallas 1992, pet. ref’d); Tex.R.App.P. 33.1(a)(1). The objection requirement generally applies to complaints about a trial judge’s comments made during trial. Sharpe v. State, 648 S.W.2d 705, 706 (Tex.Crim.App.1983). But the requirement may be subject to an exception. In Blue v. State, 41 S.W.3d 129 (Tex. 2000), the trial judge apologized to the venire for its long wait, stated the delay was because the defendant was indecisive on whether to accept a plea bargain, and expressed his preference that the defendant plead guilty. Id. at 130. A plurality of the Court of Criminal Appeals acknowledged the objection requirement but held that the trial judge’s comments “which tainted [the defendant’s] presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection.” Blue, 41 S.W.3d at 132. As the Court of Criminal Appeals has recognized, a plurality opinion is not binding precedent. See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001)(acknowledging Blue as a plurality opinion that the court was not bound to follow); Rabago v. State, 75 S.W.3d 561, 562 (Tex.App.--San Antonio 2002, pet. ref’d)(same). Even if we were bound to follow Blue, the comments at issue here do not rise to the level of the comments made in that case. The trial judge’s comments regarding his refusal to allow his children to “take the Fifth,” especially when considered in context of the judge’s strong admonishments regarding the constitutional right against compelled self-incrimination, did not diminish the significance of Appellant’s constitutional right. Point of Error Three is overruled.
EXCLUSION OF EVIDENCE
In his final point of error, Appellant argues that the court abused its discretion by refusing to allow him to elicit evidence of the co-defendant’s criminal history and Appellant’s fear of Barela.
In his first written statement, Appellant said that he “had tried to report what happened but [he was] scared of the guy that did the shootings.” He also included in the statement that Barela was from California and had told Appellant that he was “running from the law.” In his second statement, Appellant explained that he kept some information from Detective Chavaria because he was scared. During cross-examination of Detective Chavaria, Appellant’s attorney made the court aware that he wanted to ask him whether he was aware that Barela was wanted in Arizona for two attempted murders. Defense counsel offered the evidence to corroborate the statements in the confessions regarding Appellant’s fear of Barela. The court sustained the State’s relevance objection. Counsel was permitted to elicit from Chavaria that Appellant had told him he was scared of Barela. Defense counsel made a bill of exceptions to establish that Chavaria had confirmed that Barela was wanted in Arizona for two attempted murders and escape at the time of the Scenic Drive offenses. Counsel re-urged admission of this evidence and argued that it was admissible to explain why Appellant may have been scared of Barela and to rebut any argument by the State that Barela may have been running from the law due to outstanding “traffic tickets.”
On appeal, Appellant argues that the evidence of Barela’s criminal record is proper impeachment evidence and may have also served as mitigating evidence showing that he had a lesser role in the crimes. Since he did not present these theories of admissibility in the trial court, the arguments are not preserved for appellate review. See Johnson v. State, 963 S.W.2d 140, 142 (Tex.App.--Texarkana 1998, pet. ref’d)(holding that party offering evidence has burden to establish admissibility and where theory of admissibility is not presented to trial court, argument is not preserved for appellate review). Point of Error Four is overruled. Having overruled each of Appellant’s points of error, we affirm the judgment of the trial court.
August 18, 2005
ANN CRAWFORD McCLURE, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)