Affirmed and Memorandum Opinion filed October 19, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00750-CR
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MARK ANTHONY RODRIGUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 1014989
M E M O R A N D U M O P I N I O N
A jury found appellant guilty of aggravated robbery and assessed punishment at life in the Texas Department of Criminal Justice Institutional Division, and a $10,000 fine. On appeal, appellant raises two points of error. In his first, he challenges the trial court=s decision to overrule a motion to suppress a recorded interview of the appellant as a violation of the Fifth Amendment and article 38.21 of the Texas Code of Criminal Procedure. In his second point, appellant argues that the trial court reversibly erred in failing to instruct the jury of the burden of proof applicable to evidence of an extraneous offense at the punishment phase of trial. We affirm.
Factual and Procedural Background
Appellant does not challenge the factual or legal sufficiency of the evidence; therefore, we present a brief summation of the facts. Appellant was indicted for aggravated robbery of the complainant, Rashid Misaqi. Before trial, appellant moved to suppress a recorded statement taken by Pasadena police, claiming that his Fifth Amendment rights, and his rights under article 38.21 of the Texas Code of Criminal Procedure were violated. After being taken into an interview room, an officer read appellant his rights, and appellant indicated he understood them, and signed a form to the same effect. Looking to another form, the officer then said, AUnderneath there is a waiver of your rights. If you want to talk to me, it says...,@ and then proceeded to read the appellant the waiver form. Immediately after reading the waiver form to appellant, the following exchange took place:
Appellant: I can=t waive my rights.
Officer: You can=t waive your rights?
Appellant: No.
Officer: You don=t want to talk to me at all about this?
Appellant: Yeah, what have you got to say?
Officer: Well if I talk to you, you have to waive your rights.
Appellant: I can=t do that...
Officer: Huh?
Appellant: Those are my rights. If I waive them...
Officer: You can stop answering at any time if you want to.
Appellant: Well it says Awarning, waiving your rights.@
Officer: Right it says waiving these rights, and it says you have the right to terminate this interview at any time. You don=t want a lawyer at this time, and you know what you are doing. You=ve read your statement of rights, and you understand what your rights are.
Appellant: Do you guys have an appointed lawyer here?
Officer: No.
Appellant: I guess you don=t...right.
Officer: This is your chance to talk to me. If you don=t want to take it, then we=ll take you on back downstairs.
Appellant: We can talk.
Officer: Okay. You want to sign right there.
Appellant: Yeah.
During the punishment phase of the trial, the State re-offered all its evidence from the guilt/innocence phase. This evidence included an officer=s testimony that appellant was found in possession of cocaine and a crack pipe upon his arrest in Corpus Christi. The trial court then neglected to give an instruction in the jury charge that any extraneous offenses should only be considered in assessing punishment if the fact finder is convinced beyond a reasonable doubt that such offenses are attributable to the defendant. It is this omission from the jury charge that comprises appellant=s second point of error.
Analysis
I. Denial of Motion to Suppress Was Not in Error
A. Argument Under Article 38.21 of the Code of Criminal Procedure Not Preserved
Appellant argues in his brief that the interrogation in question violated article 38.21 of the Texas Code of Criminal Procedure, which states that, Aa statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.@ Tex. Code Crim. Proc. Ann. art. 38.21. This argument, however, is not preserved for review. See Tex. R. App. P. 33.1. The record in this case contains no written motion to suppress the videotaped interview. Because nothing in the reporter=s record suggests that an argument based on article 38.21, involuntariness, compulsion, or persuasion was ever brought to the attention of the trial judge, we hold that the argument is waived.[1] See id.
B. Fifth Amendment Right to Counsel Did Not Require Suppression of Videotape
1. Standard of Review
At the hearing on his motion to suppress, appellant=s argument to the court sufficed to preserve error as to whether he invoked his Fifth Amendment right to counsel. When reviewing a trial court=s ruling on a motion to suppress, determinations of historical fact are given almost total deference. Herrera v. State, 194 S.W.3d 656, 658 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d). When, as here, however, we have a videotape of the interview and the facts surrounding the interview are uncontroverted, we review the trial court=s application of law to facts de novo. Id.
2. Applicable Law
Under the Fifth Amendment to the United States Constitution, once a suspect has invoked his right to counsel, all interrogation must cease immediately until either counsel is provided or the suspect himself reinitiates the conversation. Edwards v. Arizona, 451 U.S. 477, 484B85 (1981). For many years, however, what to do when the accused makes an equivocal assertion of the right to counsel was an unsettled question. See Mueller v. Virginia, 507 U.S. 1043, 1043 (1993) (White, J., dissenting) (dissenting from a denial of certiorari due to a perceived lack of guidance for lower courts to follow). Under former Texas Court of Criminal Appeals precedent, an ambiguous or equivocal request for counsel required that interrogation cease until the invocation issue was clarified. Russell v. State, 727 S.W.2d 573, 576 (Tex. Crim. App. 1987). Any further questioning was to be specifically aimed at discovering the accused=s true desire. Id. at 577.
The Supreme Court of the United States subsequently clarified what was required under the Federal Constitution, stating that if a suspect makes reference to an attorney that only might be an invocation of counsel, cessation of questioning is not required. Davis v. United States, 512 U.S. 452, 459 (1994). Nor are officers required to question the accused to decipher the ambiguous statement. Id. at 461B62. Following this clarification by the Supreme Court, it was unclear whether Texas would continue to require the extra protection laid out in Russell v. State. Eventually the Court of Criminal Appeals revisited the issue, adopting Davis as the new standard for police conduct when an accused made an equivocal assertion of rights. See Dinkins v. State, 894 S.W.2d 330, 352 (Tex. Crim. App. 1995); Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). Additionally, the Court of Criminal Appeals provided guidance on when a statement invoking the right to an attorney is equivocal, saying, ADavis requires, at a minimum, that a suspect express a definite desire to speak to someone, and that person be an attorney.@ Dinkins, 894 S.W.2d at 352.
3. Application
On the facts of the current case, there was no error in denying the motion to suppress. Both of the statements by appellantCAI can=t waive my rights@ and ADo you guys have an appointed lawyer here@Camount to mere equivocal assertions of his rights to an attorney.[2] First, the standard given by the Court of Criminal Appeals in Dinkins is not satisfied by either statement. Neither statement expresses a definite desire to speak to someone, and only the latter statement mentions an attorney. See id. Therefore, both statements fail the Court of Criminal Appeals= objective standard. Second, the statements fall well short of the clarity that is required by our case law. See, e.g., Davis, 512 U.S. at 462 (holding that AMaybe I should talk to a lawyer@ was not a request for counsel); Dinkins, 894 S.W.2d at 352 (holding that AMaybe I should talk to someone@ was not request for counsel); Dowthitt, 931 S.W.2d at 257 (holding that AI can=t say more than that. I need to rest@ was not invocation of right to remain silent). The two statements uttered by appellant are more ambiguous than the statements made in these precedential cases, in which the court found no invocation of rights.
Furthermore, this court has held that when the interview has continued after an ambiguous request for counsel, the accused has not unambiguously invoked his or her right to counsel. See Gutierrez v. State, 150 S.W.3d 827, 832 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (holding that ambiguous request followed by unambiguous rejection of attorney=s presence is not an invocation of rights); Loredo v. State, 130 S.W.3d 275, 284B85 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d) (holding that ambiguous invocation of right to counsel, followed by continuation of interview did not obligate officer to stop interview). Based on the foregoing standard and case law, appellant did not identify a request for counsel clearly enough to invoke his right to counsel. Therefore, overruling the motion to suppress was not error. We overrule appellant=s first issue.
II. Failure to Give the Reasonable Doubt Instruction on Extraneous Offenses Was Not Reversible Error
In his second point of error, appellant argues that the trial court committed reversible error by not giving, sua sponte, a reasonable doubt instruction on extraneous offenses. We disagree.
A. The Trial Court Erred
Evidence of an extraneous bad act may be considered by the fact finder in assessing punishment only if it is shown beyond a reasonable doubt to have been committed by the defendant. Tex. Code Crim. Proc. art 37.07, ' 3(a)(1). Thus, in order to assure that the jury does not use extraneous offense evidence unless it meets this standard, a jury instruction is logically required. Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The requirement that the jury be satisfied of defendant=s culpability is Alaw applicable to the case.@ Id. Therefore, an objection or request by an appellant is not necessary to preserve error; the court must give the instruction sua sponte. See id.
In this case, the State introduced evidence of appellant=s drug possession and past drug use during its case in chief. The State then reintroduced all of the evidence from guilt/innocence to be considered by the jury at the punishment phase. Appellant contends that the failure to give an instruction regarding the extraneous offenses of possession and use of narcotics is reversible error. The State contends that a reasonable doubt instruction was unnecessary because the possession of drug paraphernalia at appellant=s arrest constitutes same-transaction contextual evidence, and is thereby only a constituent part of the larger armed robbery offense.
1. Not Same-Transaction Contextual Evidence
The State argues that no reasonable doubt instruction was necessary because the extraneous offenses constituted same-transaction contextual evidence of the armed robbery. Same-transaction contextual evidence Aimparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven.@ Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993). In other words, A[c]ircumstances of the offense which tend to prove the allegations of the indictment are not extraneous offenses.@ Id. (quoting Ramirez v. State, 815 S.W.2d 636, 643 (Tex. Crim. App. 1991). By contrast, extraneous offense evidence is generally offered to help the jury evaluate the defendant=s character for sentencing purposes. Garza v. State, 2 S.W.3d 331, 335 (Tex. App.CSan Antonio 1999, pet. ref=d).
There is no indication that the extraneous offenses were interwoven or related in the least to the robbery. Knowledge of appellant=s possession of cocaine and drug paraphernalia at his arrest in no way proves the allegation of aggravated robbery in the indictment. Nor does it provide any meaningful context to the crime. The extraneous offenses were not same-transaction contextual evidence.
The State also briefly argues that it generally should be allowed to show the context of the arrest. This, however, is too broad a statement. See Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990). The context of an arrest is admissible only to the extent that it shows the context of the charged offense. See id. at 108. Even if evidence pertains to the context of an arrest, it is still same-transaction contextual evidence. See id. at 107. The drug offenses must be characterized as extraneous offenses, and as such, required a reasonable doubt instruction. The court should have given an instruction sua sponte. Its failure to do so was error.
B. The Harm Was Not Egregious
Concluding that failure to give the instruction was error does not end the analysis. The error must be reversible in order to overturn the trial court. As appellant did not object at trial, we will not reverse unless the error worked egregious harm. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); see also Ex parte Smith, 185 S.W.3d 455, 467 (Tex. Crim. App. 2006). Harm is egregious when the defendant has not had a Afair and impartial trial.@ Almanza, 686 S.W.2d at 171. Errors which result in such harm are those which affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id. at 172 (citing cases). Another standard for egregious harm is whether the case for conviction or punishment was made clearly and significantly more persuasive by the error. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). In analyzing jury‑charge error under Almanza, we review the entire trial record, from voir dire through closing arguments at the punishment stage, to determine whether the appellant suffered Aegregious harm@ from the deficient jury charge. Ex parte Smith, 185 S.W.3d at 468.
The error in this case is not egregious because it did not make the case for conviction or punishment clearly and significantly more persuasive. The crime appellant was convicted ofCaggravated robbery, during which he beat a man=s skull open with a hammerCis so egregious and so violent in and of itself, that the mere omission of a reasonable doubt instruction pertaining to drug possession almost certainly played no part in the jury=s assessment of the maximum punishment.
Additionally, the lack of the jury instruction did not affect a valuable right or defensive theory, or the basis of the case. Appellant did not claim that he had no drugs. In fact, appellant himself was the first to bring the issue of drugs into play, in the cross-examination of his girlfriend. Similarly, appellant=s counsel failed to object to any mention of drugs, or to adduce any evidence that appellant was not a drug user. Thus, it cannot be said that it was part of appellant=s defensive strategy to cast doubt of any kind on the extraneous offense of drug possession. Based on the facts of the case and the record as a whole, it is unlikely that appellant suffered any harm whatsoever, much less egregious harm.
Having found that the harm was not egregious, we overrule appellant=s second issue.
Conclusion
Having overruled both of appellant=s issues, we affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed October 19, 2006.
Panel consists of Justices Fowler, Edelman, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant=s brief is unclear whether he is arguing involuntariness under the Fifth Amendment as well. Defense counsel made no argument to the court below regarding involuntariness, whether under article 38.21 or under the Fifth Amendment. To the extent appellant=s brief could be read as raising a Fifth Amendment involuntariness issue, we hold that it is also waived.
[2] Appellant=s brief refers to a statement by appellant concerning when he would be able to consult a lawyer. As stated above, the record in this case does not contain any written motions, and in no way indicates that this statement, approximately an hour into the video, was ever brought to the attention of the trial court. Therefore, we do not consider it on appeal.