11th Court of Appeals
Eastland, Texas
Opinion
Roberto Avila
Appellant
Vs. No. 11-03-00255-CR -- Appeal from Harris County
State of Texas
Appellee
The jury convicted Roberto Avila of the offense of capital murder, and the trial court assessed his punishment at confinement for life.[1] We affirm.
Appellant presents ten points of error. In the first five points, appellant contends that the trial court erred by failing to suppress two written statements, one audio statement, one video statement, and a map drawn by appellant. Appellant contends that the statements and the map were not given voluntarily, that they were prejudicial, and that appellant was denied his rights to a fair trial and due process. Under these points of error, appellant specifically argues that he did not receive the requisite statutory warnings prior to making the statements or drawing the map. See Miranda v. Arizona, 384 U.S. 436 (1966); TEX. CODE CRIM. PRO. ANN. art. 38.22 (Vernon Pamph. Supp. 2004); TEX. FAM. CODE ANN. ' 51.095 (Vernon 2002).
In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App.1997). Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App.2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844 (Tex.App. - Eastland 1999, no pet=n).
It is clear from the record that appellant did not receive any warnings prior to giving any of the statements or drawing the map, and the State does not contend otherwise. Rather, the State asserts that no warnings were required because appellant was not in custody when he made any of the statements or drew the map. If statements are not derived from custodial interrogation, the requirements of Miranda, Article 38.22, and Section 51.095 do not apply. Martinez v. State, 131 S.W.3d 22 (Tex.App. - San Antonio 2003, no pet=n); Holland v. State, 770 S.W.2d 56, 58 (Tex.App. ‑ Austin 1989), aff=d, 802 S.W.2d 696 (Tex.Cr.App.1991). Noncustodial, voluntary statements are admissible at trial. See Article 38.22, section 5; Section 51.095(b) & (d). Thus, we must examine whether appellant was Ain custody@ when he made the statements and the map.
Custodial interrogation means Aquestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.@ Miranda v. Arizona, supra at 444. An officer=s obligation to administer Miranda warnings attaches Aonly where there has been such a restriction on a person=s freedom as to render him >in custody.=@ Stansbury v. California, 511 U.S. 318, 322 (1994)(quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). In order to determine whether a person was Ain custody,@ a court must examine on a case-by-case basis all of the circumstances surrounding the interrogation. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.Cr.App.1996). The Aultimate inquiry@ is simply whether there was a A>formal arrest or restraint on freedom of movement= of the degree associated with a formal arrest.@ Stansbury v. California, supra at 322 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). A person is Ain custody@ only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, supra; see Stansbury v. California, supra at 325. The Areasonable person@ standard presupposes an innocent person. Dowthitt v. State, supra (citing Florida v. Bostick, 501 U.S. 429, 438 (1991)).
The only witnesses to testify at the suppression hearing in this case were Sergeant E. T. Yanchak and Officer Darrell Robertson of the Houston Police Department. Sergeant Yanchak and Officer Robertson were the investigators in this case B a double homicide that occurred on August 20, 2000. The case was not solved until about two years later. Appellant became involved in the investigation as a possible witness on June 20, 2001. He provided a witness statement on that date, giving the name of a possible suspect. In that statement, appellant implicated a third party and stated that he saw the offense from down the street. The officers spoke to appellant again on June 25, 2001. On that date, appellant gave another statement, took a polygraph, and drew a map to help in the investigation. According to Sergeant Yanchak, appellant was not a suspect at the time of these events. Appellant was not in custody and was not coerced in any way. Appellant voluntarily gave the statements and then was returned to his home.
Subsequently, in May of 2002, another lead came in the case when the officers received information that the same murder weapon had been used in another homicide. That weapon had been recovered when Daniel Arredondo was arrested in October of 2001. Appellant was contacted on May 22, 2002, to find out if Arredondo was involved in the murders in this case. Appellant and his parents were again very cooperative. Appellant provided an audio statement on that date. In that statement, appellant implicated Arredondo.
Upon implicating Arredondo, appellant agreed to take another polygraph the following day. The officers picked appellant up at his home, but he was not in custody. According to Sergeant Yanchak, the police still believed that appellant was a witness. However, during the polygraph, appellant Areacted@ to two questions regarding the identity of the shooter and subsequently admitted to the polygraph examiner that he was the shooter. The polygraph examiner contacted Sergeant Yanchak, told him about appellant=s admission, and stated that appellant was Awilling to talk.@ Sergeant Yanchak testified that appellant was still not in custody. Sergeant Yanchak then interviewed appellant again. However, before the interview, Sergeant Yanchak informed appellant that he was not in custody and that he was free to leave. Appellant stated that he was willing to give another statement. This time, appellant gave a videotaped statement. Sergeant Yanchak testified that the videotaped statement was a noncustodial, voluntary statement and that appellant had not been coerced, threatened, or promised anything in exchange for his statement. The videotaped statement was admitted into evidence during the trial on the merits as State=s Exhibit No. 6. We have reviewed that videotape. In the video, appellant acknowledged that he voluntarily came to the police station, that his statement was given voluntarily, that he was not under arrest or in custody, and that he was free to leave at any time. After giving the videotaped statement, appellant was returned to his home. Later that day, Officer Robertson arrested appellant at his place of employment.
We hold that the trial court did not err in denying appellant=s motion to suppress. The evidence shows that appellant was not in custody at the time he made the statements and the map. There is nothing in the record indicating that the officers were exercising control over appellant, that appellant was coerced in any way, or that appellant acted involuntarily in giving the statements. Cf. Dowthitt v. State, supra. Appellant=s first, second, third, fourth, and fifth points of error are overruled.
In the next four points, appellant complains of the admission of evidence relating to gang graffiti, gang history and activities, the criminal activities of gangs in general, and the recovery of the murder weapon. Appellant argues that this evidence was not relevant, that it was extremely prejudicial, and that it denied appellant his rights to due process and a fair trial. The trial court=s decision to admit this evidence must be reviewed under an abuse of discretion standard, and that decision will be reversed only if it is outside the zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 151 (Tex.Cr.App.), cert. den=d, 534 U.S. 855 (2001).
With respect to the evidence of gang graffiti, appellant=s only objection at trial was to the relevancy of that graffiti. Evidence is Arelevant@ if it has Aany 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.@ TEX.R.EVID. 401. Pictures of the crime scene showed gang graffiti spray-painted on a concrete wall near the victims= bodies. According to an officer who investigated the crime scene, the graffiti did not appear to be new. Further, the officer did not know if the graffiti was significant because he did know what it meant. We hold that the trial court did not abuse its discretion in determining that testimony describing the crime scene and pictures showing the crime scene were relevant. Moreover, because the graffiti was not new and was not linked to the murders in this case, the error, if any, in the admission of such evidence was not reversible error under TEX.R.APP.P. 44.2. Appellant=s sixth point of error is overruled.
With respect to the seventh and eighth points, the trial court permitted the State, over appellant=s objections, to introduce evidence from two officers who were Agang experts.@ Among other objections not raised on appeal, appellant objected at trial that the officers= gang-related testimony was not relevant under Rule 401 and that it was unfairly prejudicial under TEX.R.EVID. 403. The complained-of testimony showed that appellant and Arredondo were members of a street gang called APVL,@ which stands for Puros Vatos Locos and means pure crazy guys, and that one of the victims was a member of a rival gang called the 52 Hoovers or the Hoover Crips. The other victim was an associate of the Hoovers. One of the gang experts testified that the activities of both of these gangs included drug trafficking, armed robberies, carjackings, and assaults. According to the officer, it would not be unusual for one gang member to hand a weapon to a fellow gang member and instruct that person to shoot someone. After initially admitting evidence regarding the criminal activities of the gangs involved in this case, the trial court subsequently changed its ruling and instructed the jury to disregard the officer=s prior testimony about what the two gangs were known to do. Appellant then moved for a mistrial, which the trial court denied.
We hold that the trial court did not abuse its discretion in admitting evidence of appellant=s gang membership or evidence of the victims= gang affiliation. Because the gangs involved were rivals and because appellant had experienced difficulties with the rival gang in the past, the evidence showing gang membership was relevant to show appellant=s motive for the murders. See Vasquez v. State, 67 S.W.3d 229, 239 (Tex.Cr.App.2002); see also Rule 401. Furthermore, the trial court could reasonably have determined that the probative value of such evidence was not substantially outweighed by the danger of unfair prejudice or the Apotential character conformity inference.@ Vasquez v. State, supra at 240; see Rule 403.
With respect to the evidence that was initially admitted and showed that appellant=s gang was known to participate in various criminal activities, we hold that the trial court=s instruction to disregard cured the error, if any, in the admission of such evidence. The trial court withdrew the evidence regarding the commission of various crimes by the gangs involved in this case. The trial court instructed the jury Anot to take that information into account for any purpose in [its] deliberation.@ A prompt instruction to disregard will ordinarily cure the error created by an improper question and answer, even one involving extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Cr.App.2000). In this case, the testimony about the gangs= involvement with various criminal activities did not harm appellant. There was no evidence that appellant was involved in any such criminal activity. We hold that the trial court=s instruction cured any error and that the trial court did not abuse its discretion in denying appellant=s related motion for mistrial. Appellant=s seventh and eighth points of error are overruled.
In his ninth point, appellant complains of the admission of testimony concerning the recovery of the murder weapon during an unrelated arrest of Arredondo. Clearly, the recovery of the murder weapon and the circumstances surrounding its recovery were relevant under Rule 401. Furthermore, the trial court did not abuse its discretion in determining pursuant to Rule 403 that this evidence was not unfairly prejudicial. Appellant=s ninth point of error is overruled.
In his final point, appellant complains of the prosecutor=s closing argument. Appellant argues that the prosecutor improperly struck at the defendant over the shoulders of defense counsel, denying appellant the rights to a fair trial and due process. After defense counsel concluded his closing argument during the guilt/innocence phase of trial, the prosecutor began her closing argument with the following comments: ALet=s talk about smoke screens here, folks. You know that=s [defense counsel=s] job.@ Appellant objected that the prosecutor was striking at appellant over defense counsel=s shoulder. The trial court sustained the objection and instructed the jury to Adisregard the last comment.@ Appellant then unsuccessfully moved for a mistrial.
Proper jury argument falls into one of four categories: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to the arguments of opposing counsel, and (4) pleas for law enforcement. Cantu v. State, 842 S.W.2d 667, 690 (Tex.Cr.App.1992), cert. den=d, 509 U.S. 926 (1993). The State is not permitted to strike at the defendant over defense counsel=s shoulders or to accuse defense counsel of bad faith and insincerity. Wilson v. State, 938 S.W.2d 57, 60 (Tex.Cr.App.1996). Although it may have been permissible for the prosecutor to discuss the Asmoke screens@ presented by the defense, it was not proper for the prosecutor to argue that it was defense counsel=s job to create smoke screens. See Mosley v. State, 983 S.W.2d 249, 258-60 (Tex.Cr.App.1998), cert. den=d, 526 U.S. 1070 (1999); Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Cr.App.1995); Gorman v. State, 480 S.W.2d 188 (Tex.Cr.App.1972). However, the record in this case shows that the trial court sustained appellant=s objection and promptly instructed the jury to disregard the prosecutor=s comment. An instruction to disregard generally cures error during closing argument unless the argument is so egregious or inflammatory that its prejudicial effect cannot reasonably be removed by such an admonition. Wilson v. State, 7 S.W.3d 136, 148 (Tex.Cr.App.1999); Hernandez v. State, 819 S.W.2d 806, 820 (Tex.Cr.App.1991), cert. den=d, 504 U.S. 974 (1992); see Guidry v. State, 9 S.W.3d 133, 154 (Tex.Cr.App.1999), cert. den=d, 531 U.S. 837 (2000). We find that the State=s argument in this case was not so egregious or so inflammatory that any prejudicial effect could not have been removed by the trial court=s instruction to disregard. The tenth point of error is overruled.
We hold that appellant received a fair trial and that he was not denied the right to due process.
The judgment of the trial court is affirmed.
W. G. ARNOT, III
CHIEF JUSTICE
June 24, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]At the time of the offense, appellant was under the age of 17. Therefore, the only punishment available was a mandatory life sentence. TEX. PENAL CODE ANN. '' 8.07(c) & 12.31 (Vernon 2003 & Supp. 2004).