PD-0795-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS August 6, 2015 Transmitted 8/5/2015 1:22:53 PM Accepted 8/6/2015 10:40:47 AM ABEL ACOSTA PD 0795-15 CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS _______________________________________________ CARL LEE SMITH, Appellant, v. THE STATE OF TEXAS, Appellee. _______________________________________________ On Petition for Discretionary Review from the Fourteenth Court of Appeals in No. 14-13-00595-CR affirming the conviction in cause number 1247979, From the 351st District Court of Harris County, Texas _______________________________________________ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW _______________________________________________ ORAL ARGUMENT NOT REQUESTED ALEXANDER BUNIN Chief Public Defender Harris County, Texas JANI MASELLI WOOD Assistant Public Defender Harris County, Texas TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 Counsel for Appellant July 30, 2015 IDENTITY OF PARTIES AND COUNSEL APPELLANT: Mr. Carl Lee Smith TDCJ# 1868764 Allred Unit 2101 FM 369 North Iowa Park, TX 76367 TRIAL PROSECUTORS: Merry Katherine McDaniel Allison Baimbridge APPELLATE PROSECUTOR: Mr. Eric Kugler Assistant District Attorneys Harris County, Texas 1201 Franklin, 6th Floor Houston, Texas 77002 DEFENSE COUNSEL AT TRIAL: Charles A. Brown 708 Main Street, Suite 790 Houston, TX 77002 PRESIDING JUDGE: Hon. Kent Ellis JUDGE HEARING CASE Hon. Mary Lou Keel 351st District Court Harris County, Texas 1201 Franklin, 14th floor Houston, Texas 77002 DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, Texas 77002 -2- TABLE OF CONTENTS Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Statement of the Case & Procedural History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The warnings under Miranda and 38.22 specifically state that if a defendant is in custody “he has the right to have a lawyer present to advise him prior to and during any questioning” and “if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning.” Mr. Smith was advised of his rights and when he questioned whether he had a lawyer, he was told no. Did the Court of Appeals err in holding that the rights afforded under TEX. CODE CRIM. PROC. ART. 38.22 and 1.051 (i) are not to be weighed against an “ambiguous” response?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Appendix -3- INDEX OF AUTHORITIES PAGE Cases: Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App.1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Edwards v. Arizona, 451 U.S. 477 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Lucas v. State, 791 S.W.2d 35 (Tex. Crim. App.1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Pecina v. State, 361 S.W.3d 68 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Smith v. State, 14-13-00595-CR, 2015 WL 3751776 (Tex. App.—Houston [14th Dist.] June 16, 2015, no. pet. h.).. . . . . 5, 20, 21 Statutes and Rules: TEX. CODE CRIM. PROC. ART 1.051 (i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim TEX. CODE CRIM. PROC. ART. 38.22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 -4- STATEMENT REGARDING ORAL ARGUMENT Oral argument is not requested. STATEMENT OF THE CASE This is an appeal from the offense of capital murder. (C.R. at 402). See Tex. Penal Code Ann. § 19.03. Mr. Smith pleaded not guilty and a jury convicted him; he was sentenced by the court to a mandatory sentence of life without parole because the State did not seek the death penalty. (C.R. at 402). Timely notice of appeal was filed. (C.R. at 405). STATEMENT OF THE PROCEDURAL HISTORY In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr. Smith’s conviction. Smith v. State, 14-13-00595-CR, 2015 WL 3751776, at *13 (Tex. App.—Houston [14th Dist.] June 16, 2015, no. pet. h.). No motion for rehearing was filed. After an extension of time, this petition is timely if filed on or before August 17, 2015. -5- GROUND FOR REVIEW The warnings under Miranda and 38.22 specifically state that if a defendant is in custody “he has the right to have a lawyer present to advise him prior to and during any questioning” and “if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning.” Mr. Smith was advised of his rights and when he questioned whether he had a lawyer, he was told no. Did the Court of Appeals err in holding that the rights afforded under TEX. CODE CRIM. PROC. ART. 38.22 and 1.051 (i) are not to be weighed against an “ambiguous” response? REASON FOR REVIEW The Fourteenth Court of Appeals has decided an important question of state or federal law in a way that conflicts with the applicable decisions of the Court of Criminal Appeals or the Supreme Court of the United States. TEX. R. APP. P. 66.3(c). -6- STATEMENT OF FACTS Around 1:00 a.m. on January 5th, 2009, Reynaldo Garza was escorting another employee of the illegal game room where he worked to her car near the corner of Wallisville and Uvdale Roads in Houston, Texas (IX R.R. at 119, 124). The game room was located in a small strip shopping center, which also housed a laundromat and a few other small businesses (Id.). While waiting for his coworker to get in her car, Mr. Garza heard what he "thought was like firecrackers" coming from behind the building (IX R.R. at 124-25). There were two bursts of sound, which his coworker said she believed to be gunshots, rather than firecrackers (IX R.R. at 124). Early the next morning, the body of Curtis Veazie was found behind the shopping center (IX R.R. at 88, 138). Mr. Veazie had been living out of his car following a dispute with his wife, and his car was later found in a utility right-of-way field not far from the scene (IX R.R. at 69, 97, 112). While no one knows for sure what happened that night, the State’s theory of the case was that a group of three to four men, including Cedrick Robinson (also known as “Turk”), an unidentified individual known only as “Junior,” allegedly Carl Lee Smith (known to his friends as “Piper”) and possibly Silvanus René (also known as “Lo”) had committed the offense in the course of attempting to rob Mr. Veazie (XII R.R. at 63; X R.R. at 48). Mr. Smith maintained, however, that he was not -7- present at the time of the offense and had no part in it (XI R.R. at 185-86). Indeed, numerous witnesses put Mr. Smith away from the scene-attending a large family party-on the night of the murder (XI R.R. at 76, 111-12; XII R.R. at 11, 14, 37, 52-53). Mr. Smith had no knowledge of the crime until hours later (XI R.R. at 187). The day after the incident, Mr. Smith received a call from “Junior,” who informed him of what had happened the night before, and a large group of people, including Mr. Smith and his girlfriend, went out into the woods to see where Turk had “ditched” the car, causing a subsequent argument between Mr. Smith and Turk regarding Turk’s stupidity in leaving the car so close to the Hunter Woods Apartments (XI R.R. at 187-88; XI R.R. at 115-16). Following Mr. Veazie's murder and locating his car, the police focused their attention on the nearby Hunter Wood apartment complex, in part due to a tip called in to Crime Stoppers by Cheryl Shaw, who claimed to have seen blood on Turk's shoes later in the day on January 5th, and had a conversation with Turk in which he appeared agitated, and may possibly have referred to the crime in some way (X R.R. at 128-29, 130-31, 133). When the police arrived at the Hunter Wood apartment complex to investigate the Crime Stoppers tip, Mrs. Shaw initially refused to speak to the police-she only consented to speak with them after they placed her in handcuffs and put her into a police car in some apparent pretense of arresting her (X R.R. at -8- 133-34). She claimed to know who Mr. Smith was by sight, having seen him two or three times, but did not place him at the apartments or with the other suspects the night of the murder, and had no direct knowledge of his involvement (X R.R. at 139-40, 147, 151, 154). At the time of her testimony, Mrs. Shaw was in custody at the Harris County Jail, and had been arrested previously on several theft and forgery charges (X R.R. at 115-16). The only person who placed Mr. Smith at the complex with Turk and Junior the night of the murder was Mrs. Shaw's daughter, Whitney Shaw (X R.R. at 46, 48). Whitney Shaw, however, admitted she had only ever seen the man she identified as Mr. Smith twice, including the night of the incident, and could not place a gun in his hands during her testimony (X R.R. at 38-39, 50-51, 60-61). Ms. Shaw did not actually see the man she claims was Mr. Smith get in the car with Turk and Junior-she only saw him walk out the apartment door at the same time they did, not get in the car or leave the complex with them (X R.R. at 56, 66). Moreover, Ms. Shaw could not even be certain that the night she claims to have seen Mr. Smith with Turk and Junior was, in fact, the night in question: MR. BROWN: So you can't tell this jury that the night before or the night of the murder going into the 4th, 5th that you saw this man with -9- Turk and Junior getting dressed taking guns that that’s the night of the murder. You don’t know that, do you? MS. SHAW: It's not that I don't know I just don't remember. (X R.R. at 70-71). Once the police had turned their attention to Turk, Junior, and Mr. Smith, they opted to interview Mr. Smith at the Harris County Criminal Courthouse, where they knew he was making a court appearance on another matter on January 14, 2009 (X R.R. at 192). When Sergeants Dean Holtke and Wayne Kuhlman of the Harris County Sheriff's Office Homicide Unit arrived to interrogate Mr. Smith, Mr. Smith was represented by counsel, attorney Anthony Simmons, on his pending case (XI R.R. at 39). Knowing that Mr. Smith was represented by counsel, the officers have the armed bailiff detain Mr. Smith without his counsel's knowledge and without allowing him to contact his counsel, bring Mr. Smith into a private jury deliberation room, outside of the public areas of the courthouse, where he is greeted by two armed Homicide detectives (XI R.R. at 33-34). Mr. Smith was informed he was not in custody, despite the fact he was detained in a private room with two armed officers in it and an armed bailiff guarding the door, and despite Sergeant Holtke admitting on the stand that Mr. Smith was a suspect: -10- MR. BROWN: When you came and had the bailiff get Mr. Smith to come back and join you in the jury room he was a suspect in your mind. Is that correct? SGT. HOLTKE: His name had been mentioned. MR. BROWN: The answer to the question is, yes or no, he's a suspect or he's not? SGT. HOLTKE: He's suspect. MR. BROWN: So he's not a witness. He's a suspect? SGT. HOLTKE: Right. (XI R.R. at 33-34). Sgt. Holtke recorded his interrogation of Mr. Smith (X R.R. at 193-94; State's Exhibit 98: Defendant's Statement of 1/14/09, Part 1). At just over six minutes into the recording, which was played into evidence, Mr. Smith clearly requests his attorney: MR. SMITH: I need a-I need a lawyer, Sir. I-my-can I-can I call my lawyer in here? SGT. HOLTKE: 'Course you can. MR. SMITH: 'Cause I really don't-you know what I'm sayin'- SGT. HOLTKE: 'Course you can. -11- MR. SMITH: I really-I-I know what's up, you know what I'm sayin'? SGT. HOLTKE: You do know what's up with this? MR. SMITH: Yes, Sir, you know what I'm sayin', but only thing is, you know what I'm sayin', they-you know- SGT. HOLTKE: If you-Dude-If you were there- MR. SMITH: -These people- SGT. KUHLMAN: Hey, hey, hey- MR. SMITH: -These people- SGT. HOLTKE: Hey- MR. SMITH: -These people that I'm dealin' with- SGT. KUHLMAN: Carl, Carl, Carl SGT. HOLTKE: Let him finish-He-he-he's talking SGT. KUHLMAN: OK. MR. SMITH: These people man, you know what I’m sayin’-I’m scared of these people, man, you know what I'm sayin'? (State's Exhibit 98: Defendant's Statement of 1/14/09, Part 1, at 06:03). While Sgt. Holtke and Sgt. Kuhlman indicate to Mr. Smith that he can get his attorney, they clearly do their best to keep him talking for as long as they can before actually -12- allowing him access to counsel. Later in the recording, at nine minutes and twenty-eight seconds, Mr. Smith unequivocally requests access to counsel again: MR. SMITH: Well, know, 'fore I say anything further man, you know what I'm sayin’, I just really want to get my lawyer up in here- SGT. HOLTKE: Well, get him. MR. SMITH: -so I can understand what's going on. SGT. HOLTKE: I mean, you know, that's- SGT. KUHLMAN: Well, here-OK, then that's fine, but here's what I'm not understanding. I'm trying to follow what you're saying here. You're saying you were just told about this? MR. SMITH: Yeah, Turk just came and, you know, we was out (unintelligible) when he came and told us. (State's Exhibit 98: Defendant's Statement of 1/14/09, Part 1, at 09:28). This time, when Mr. Smith requests access to his attorney before going any further, Sergeant Kuhlman clearly directs Mr. Smith’s attention away from his request and effectively ignores it, diving straight into further questioning and again denying Mr. Smith access to his attorney. It is not until almost half an hour later that Mr. Smith is finally allowed to speak to his attorney, and only because Mr. Simmons came looking for him, not because the officers allowed Mr. Smith to go and get him (State's Exhibit 98: -13- Defendant's Statement of 1/14/09, Part 1, at 34:02). Following a short conference with his attorney, Mr. Smith agreed to continue speaking with the officers for the moment (State's Exhibit 99: Defendant's Statement of 1/14/09, Part 2, at 00:43). Later that same day, despite clearly knowing Mr. Smith was represented by counsel and had requested the presence of that counsel, Sergeants Holtke and Kuhlman meet with Mr. Smith again, this time to show him photographic arrays so he can identify Turk and Lo to them (State's Exhibit 100: Defendant's Second Statement of 1/14/09, at 02:48, 04:05). No further contact was made with Mr. Smith until December 3rd, 2009, when Sergeant Holtke and Sergeant Eric Clegg interrogated Mr. Smith again while he was incarcerated at the Baker Street Jail in Houston, Texas on another offense (XI R.R. at 11-12). Mr. Smith was taken from his cell by a jail guard and brought to a small interrogation room, where he was confronted with Sgt. Holtke and Sgt. Clegg (XI R.R. at 12-13). Mr. Smith was shackled, with his hands cuffed behind his back and leg irons on his ankles, and felt unable to leave the room without the consent of the officers and the guard (XI R.R. at 175; State's Exhibit 101: Defendant's Statement of 12/3/09, at 00:28). Sgt. Holtke and Sgt. Clegg openly admitted in the interview that Mr. Smith was in custody during the interrogation, and Sgt. Holtke duly Mirandized him, saying: “Since you are in custody, you have leg irons and everything on, I'm going -14- to have to read you your warnings, which I’m sure you've heard before.” (State's Exhibit 101: Defendant's Statement of 12/3/09, at 00:28). Following the reading of his rights, Mr. Smith attempted to imitate his attorney's questions during his first interrogation in the Harris County Courthouse to end the interview, at which point Sgt. Holtke informed him that he did not have access to an attorney, despite his professed rights: MR. SMITH: Am I being charged with something? SGT. HOLTKE: No. MR. SMITH: I got a lawyer? SGT. HOLTKE: Nope. You're in custody-you're in custody for something completely unrelated to what I want to talk to you about, but since you're in custody, I have to lead-read you your legal warnings. (State's Exhibit 101: Defendant's Statement of 12/3/09, at 01:05). Mr. Smith did not feel free to leave the room, did not believe that he had the ability to access an attorney, and clearly did not actually wish to speak to the detectives: MR. BROWN: When you see the door open and the people there what do you do? MR. SMITH: I tell him [the guard] I don't want to talk to him [Sgt. Holtke]. -15- MR. BROWN: Did they say OK and let you go? MR. SMITH: No, sir. When I said I ain’t want to talk to him he told me he couldn't you know do nothing about that, say he was just the escort. MR. BROWN: You say certain things at the beginning of your interview with Sergeant Holtke; what are you doing? MR. SMITH: Trying to terminate the interrogation. MR. BROWN: Do you ask specific questions? MR. SMITH: Yes, sir. MR. BROWN: Do you remember what they are? MR. SMITH: Yes, sir. MR. BROWN: What were they? MR. SMITH: I asked was I charged with something. I asked did I have a warrant and I say why are you talking to me? MR. BROWN: Did they continue talking to you? MR. SMITH: Yes, sir. (XI R.R. at 179-80). Mr. Smith did everything he knew to do to terminate the interview, not having a clear knowledge of the law, and not having a full understanding of his rights, despite the cursory rattling off of his Miranda rights by -16- Sgt. Holtke. He did not want to talk to the detectives, and attempted to terminate the interview the only ways he knew how-by asking if he could have an attorney, and then, when he was told in his understanding that he could not, attempting to end the interview by emulating what his attorney said during his first interview to achieve the same end. Despite Mr. Smith's clear desire to end the interview, the detectives continued to question Mr. Smith, and elicited a statement from him (XI R.R. at 180). In that statement, Mr. Smith claimed to have been present for the robbery, but left the moment Turk appeared to become aggressively violent with the victim, and had no part in tying up, beating, or killing Mr. Veazie, indicating Mr. Smith's repudiation of Turk's actions (State's Exhibit 101: Defendant's Statement of 12/3/09, at 30:47). At trial, Mr. Smith testified under oath that the only reason he gave this statement to the detectives-which was the only occasion on which he deviated from his insistence that he was not involved in the offense-was in an attempt to protect Junior, whom he viewed as a surrogate brother, from prosecution: MR. BROWN: Did you lie to the police when you were in custody in the Harris County Jail 6 or 7 months later in December when Holtke and Clegg came to talk to you? MR. SMITH: Yes, sir I did. -17- MR. BROWN: Were you there and present when everybody got ready to go hit a lick? MR. SMITH: No, sir, I wasn't present. MR. BROWN: Did you go out behind this washateria and game room and attack Mr. Veazie? MR. SMITH: No, sir I didn't. MR. BROWN: Did you even leave the scene before Junior and Turk? MR. SMITH: No, sir I never was there. MR. BROWN: Did you have a Glock 40 or whatever it is? MR. SMITH: No, sir. MR. BROWN: On your person on that day? MR. SMITH: No, sir. MR. BROWN: Have you ever shot anybody? MR. SMITH: No, sir. MR. BROWN: Who were you trying to protect? MR. SMITH: Junior. MR. BROWN: Explain to the Ladies and Gentlemen of the Jury why you're lying. -18- MR. SMITH: Junior was my little brother friend and I was trying to explain 'cause he looked up to me. I took advantage of that, you know. I took advantage of him looking up to me as a big brother 'cause he ain't have nobody down here. He from a whole other country, so- *** MR. BROWN: Why would you lie? MR. SMITH: The reason that I lie was-know what I'm saying you know I felt obligated to protecting Junior after he told me what he went and did with Turk and I promised him that I be his-you know his-basically his alibi for you know what happened. (XII R.R. at 185-86, 189). Shortly after his second interrogation by police, on January 13, 2010, Mr. Smith was charged with the murder of Curtis Veazie and was formally indicted by the Grand Jury on February 22, 2010 (I C.R. at 10, 15). He was granted appointed counsel and was initially represented by Mr. Joseph Salhab (I C.R. at 11). Mr. Salhab represented Mr. Veazie from January 15, 2010 until the day trial was initially scheduled to start, on July 27, 2012 (I C.R. at 11, 239; VI R.R. at 24). On December 15, 2010, Mr. Salhab filed his Motion to Suppress Statements of the Defendant, which he later followed up with a Memorandum of Law Supporting Smith's Motion to Suppress Evidence and a Supplemental Memorandum of Law -19- Supporting Smith's Motion to Suppress Evidence on September 7 and 16, 2011, respectively (I C.R. at 63-67, 81-86, 87-91). A hearing was held on Mr. Smith's Motion to Suppress Statements of the Defendant on September 7, 2011, and was continued on October 6, 2011 (II R.R. at 4-72; III R.R. at 3-22). On November 21, 2011, Judge Mark Kent Ellis denied the motion and issues his Findings of Fact and Conclusions of Law relating to the suppression hearing (IV R.R. at 4; I C.R. at 95-98). Argument The warnings under Miranda and 38.22 specifically state that if a defendant is in custody “he has the right to have a lawyer present to advise him prior to and during any questioning” and “if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning.” Mr. Smith was advised of his rights and when he questioned whether he had a lawyer, he was told no. Did the Court of Appeals err in holding that the rights afforded under TEX. CODE CRIM. PROC. ART. 38.22 and 1.051 (i) are not to be weighed against an “ambiguous” response? In denying the issue regarding the second, in custody statement, the Court of Appeals explained: Appellant points out that he asked at the beginning of the December interview, “I got a lawyer?” He argues this question was a sufficiently unambiguous invocation of his right to counsel that the detectives should have stopped the interview until he had had an opportunity to speak with an attorney. But not every mention of a lawyer by a suspect will suffice to invoke the Fifth Amendment right to the presence of counsel during questioning. Gobert, 275 S.W.3d at 892. An ambiguous or equivocal statement with respect to counsel does not even require officers to seek clarification, much less halt their interrogation. Id. Whether the mention of a lawyer constitutes a clear invocation of the -20- right to counsel will depend upon the statement itself and the totality of the circumstances. Id. The test is an objective one and the suspect must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id. at 892–93. Smith, 2015 WL 3751776, at *13. The Court of Appeals failed to fully consider the exchange between Mr. Smith and the interrogating officers: MR. SMITH: I got a lawyer? SGT. HOLTKE: Nope. You're in custody-you’re in custody for something completely unrelated to what I want to talk to you about, but since you’re in custody, I have to lead-read you your legal warnings. (State's Exhibit 101: Defendant's Statement of 12/3/09, at 01:05). Mr. Smith was read his rights which included the right to a lawyer and the right to have one prior to and during questioning. TEX. CODE CRIM. PROC. ART. 38.22 SEC. 2 (A)(3),(4). Mr. Smith was also entitled to an attorney despite not yet being charged with capital murder: Under 1.051 (i), Mr. Smith was entitled to counsel despite not being charged with a crime: Except as otherwise provided by this subsection, if an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have not been initiated against the defendant, a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county shall appoint counsel immediately following the expiration of three working days after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel. -21- TEX. CODE CRIM. PROC. ART 1.051 (i). This Court has explained the protections under the Fifth Amendment: Under Edwards v. Arizona, once a person invokes his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by merely showing that the suspect responded to police-initiated interrogation after being advised of his rights again. The purpose of the Edwards rule is to “prevent police from badgering a defendant into waiving his previously asserted Miranda rights.” That prophylactic rule protects the suspect—who has made the decision not to speak to law-enforcement officers without his lawyer and clearly communicated that decision to the police—from further police badgering. Pecina v. State, 361 S.W.3d 68, 76 (Tex. Crim. App. 2012). Once Mr. Smith questioned whether he had a lawyer, all questioning needed to stop. As the Supreme Court has resolutely held: “We reconfirm these views and, to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.” Edwards v. Arizona, 451 U.S. 477, 485 (1981). The right to counsel is considered invoked when the accused indicates that he wants to speak to an attorney or have an attorney present during questioning. Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim. App.1989). The request must “clear and unambiguous.” Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App.1995). Clearly, by telling Mr. Smith he wasn’t entitled to an attorney (despite just having been told he was entitled to counsel) he wanted an attorney. -22- The semantics and gymnastics utilized by courts to determine there was not invocation of counsel aside - Mr. Smith asked if he had a lawyer and he was told no. This Court should grant review to enforce the strictures of Miranda and the Code of Criminal Procedure. PRAYER FOR RELIEF For the reasons states above, Mr. Smith prays that this Court grant his petition for discretionary review. Respectfully submitted, ALEXANDER BUNIN Chief Public Defender Harris County Texas Jani Maselli Wood _______________________________ JANI J. MASELLI WOOD Assistant Public Defender Harris County, Texas Jani.Maselli@pdo.hctx.net TBN. 00791195 1201 Franklin Street, 13th Floor Houston, Texas 77002 Phone: (713) 368-0016 Fax: (713) 368-9278 Attorney for Appellant Carl Lee Smith -23- CERTIFICATE OF SERVICE Pursuant to Tex. R. App. Proc. 9.5, this certifies that on August 5, 2015, a copy of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the Harris County District Attorney’s Office through texfile.com at the following address: Eric Kugler Assistant District Attorney 1201 Franklin Street, 6th Floor Houston, TX 77002 kugler_eric@dao.hctx.net Lisa McMinn Lisa.McMinn@SPA.texas.gov Jani Maselli Wood _________________________________ JANI J. MASELLI WOOD -24- CERTIFICATE OF COMPLIANCE Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D). 1. Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this petition contains 4000 words printed in a proportionally spaced typeface. 2. This petition is printed in a proportionally spaced, serif typeface using Garamond 14 point font in text and Garamond 14 point font in footnotes produced by Corel WordPerfect software. 3. Undersigned counsel understands that a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against the person who signed it. Jani Maselli Wood ____________________________ JANI J. MASELLI WOOD -25- trial court did not err when it denied his motion for directed 2015 WL 3751776 verdict. Appellant next argues that the trial court abused its Only the Westlaw citation is currently available. discretion when it admitted into evidence audio statements appellant made to the police in January and December 2009 SEE TX R RAP RULE 47.2 FOR DESIGNATION AND because (1) the January statements were made while appellant SIGNING OF OPINIONS. was in custody and without Miranda warnings;1 and (2) the police denied appellant his right to counsel under both the DO NOT PUBLISH—TEX. R. APP. P. 47.2(B). Fifth and Sixth Amendments. We overrule this issue because appellant was not in custody at the time of the January 2009 Court of Appeals of Texas, statements, both the January and December statements were Houston (14th Dist. voluntary, and appellant was not deprived of his right to counsel during any of his statements. Carl Lee Smith, Appellant v. Finally, appellant contends the evidence is legally insufficient The State of Texas, Appellee to support the amount of court costs assessed against him NO. 14–13–00595–CR | Memorandum Opinion filed because there is no bill of costs in the record. We overrule June 16, 2015 this issue because the bill of costs for the exact amount of the costs assessed against appellant found in the record provides an adequate basis for the assessment of court costs against appellant. We therefore affirm the judgment. On Appeal from the 351st District Court, Harris County, Texas, Trial Court Cause No. 1247979 Background Attorneys and Law Firms Jani J. Maselli Wood, for Carl Lee Smith. A. The complainant's murder Whitney Shaw, one of the principal witnesses at trial, Eric Kugler, for the State of Texas. provided testimony regarding appellant's conduct before the Panel consists of Chief Justice Frost and Justices Christopher murder. In January 2009, Whitney lived in the Hunter Wood and Busby. apartment complex along with her mother, Cheryl Shaw. The complex is in eastern Harris County near the Pine Trails neighborhood. Whitney was dating Darius Bogar. Darius was one of several young men Whitney saw hanging around the Hunter Wood apartments during that time period. These MEMORANDUM OPINION young men included Silvanus “Lo” Rene and Cedrick “Turk” Robinson. Whitney also saw appellant, known as Piper, around the Hunter Wood apartments a few times. Lo had two different apartments in the Hunter Wood complex and Whitney, along with many other people, would hang out in J. Brett Busby, Justice them. *1 Appellant Carl Lee Smith was convicted of the capital murder of the complainant Curtis Veazie and sentenced to On the evening of January 4, 2009, Whitney went to Lo's imprisonment for life without the possibility of parole. apartment to visit Darius. Darius was not there when Whitney Appellant appeals his conviction, raising four issues. arrived, so she decided to wait for him. While she was Appellant contends in his first issue that the trial court abused waiting, Whitney saw appellant, Turk, and a male she knew its discretion when it admitted photographs of the death scene as Junior, putting on dark clothing and getting guns out of a and autopsy over his objection based on Rule 403 of the closet. Whitney testified that she thought they were getting Texas Rules of Evidence. We conclude that even if the trial ready to “go hit a lick” or getting ready “to go rob court abused its discretion when it admitted the challenged somebody.” Whitney testified she saw two guns, one several photographs, appellant was not harmed by their admission. feet long and the other about a foot long. According to Whitney, the first gun resembled a photograph of an AK–47 that she was shown during her trial testimony. The three men left the apartment around 10:00 p.m. or 11:00 p.m. In his second issue, appellant asserts the trial court erred when it denied his motion for directed verdict because there is legally insufficient evidence placing him at the scene of the *2 In January 2009, complainant Curtis Veazie lived in the crime. Because appellant's statements, which were admitted Pine Trails neighborhood in eastern Harris County. Veazie into evidence, place appellant at the scene of the crime as part and his wife were having problems at that time, and as a result of a conspiracy to rob Veazie, we hold the evidence is legally sufficient to support appellant's conviction and therefore the Smith v. State, Not Reported in S.W.3d (2015) Veazie had moved out. Veazie then stayed with his friend from an unidentified blunt instrument, Veazie's left eyeball Kenneth Jones in nearby Channelview for a few days. was partially out of its socket and his right eyeball was completely out of its socket. There was massive damage to Veazie's head and a lot of blood around his body. An Veazie worked two jobs and he liked to gamble during his investigator who processed the crime scene testified that the spare time. Reynaldo Garza testified that Veazie was a regular lack of blood on most of Veazie's clothes indicated he was customer at the eastside game room where Garza worked. The lying face down on the concrete paving when he was shot. game room was located in a strip center on Wallisville Road Shoelaces had been used to bind Veazie's ankles and wrists. near the intersection with Uvalde. Garza testified that he saw Investigators also discovered additional shoelaces around his Veazie, alone, at the game room between 10:00 and 11:30 on mouth area. Blood spatter had been sprayed on a nearby wall the evening of January 4. Garza testified that Veazie always from an impact that occurred near ground level. The forensic drove an older, white, four-door car. pathologist who conducted the autopsy testified that Veazie's death was consistent with more than one assailant. Garza testified that he left the game room for a while that evening but he returned to close the game room at about 1:00 *3 While the homicide investigators were still at the scene of a.m. Garza testified that he was escorting Irma Escobedo, the murder, other officers discovered Veazie's car abandoned another employee, to her car when he thought he heard in a utility right of way near the Pine Trails neighborhood. firecrackers. Escobedo said they were not firecrackers but The police found Veazie's wallet on the passenger side of the gunshots. Garza testified that he heard two shots and he vehicle. They also found clothes and a pair of sneakers thought they came from behind the strip center. Escobedo got without shoelaces in the car's trunk. in her car and began to drive toward the exit from the strip center parking lot. Garza testified that he saw a white car drive out from behind the strip center, pass in front of B. The investigation Escobedo's car, and then turn onto Wallisville Road. The next Cheryl Shaw, Whitney's mother, ran a small store out of her morning, Garza realized that the white car he had seen driving apartment in the Hunter Wood apartments. As a result of that out from behind the strip center was Veazie's. A surveillance activity, and the fact Whitney was still in high school in 2009, camera at an auto repair business across the street from the Cheryl was familiar with many of the people who lived in or strip center captured the two cars leaving the strip center hung out at the Hunter Wood apartments. Cheryl testified that parking lot at approximately 1:40 a.m. on January 5. she knew Darius and Turk because they went to high school with Whitney. Cheryl was also familiar with Lo. Cheryl testified that around the time of the murder, she saw appellant That same morning, Sergeant Michael Holtke, a Harris with Turk and another young man she knew only as Junior. County Sheriff's Department homicide detective, was Cheryl went on to testify that she always saw appellant with dispatched to the strip center in response to a 9–1–1 call Turk and Junior. At a point in time after Veazie's murder, reporting a dead body. Holtke was the lead detective Turk was standing outside the Shaw apartment when Cheryl investigating the murder. The manager of a washateria in the noticed blood on his shoes. After seeing a news report about same strip center as the game room had called 9–1–1 after an Veazie's death and an invitation to call Crime Stoppers with elderly lady searching for cans had discovered a dead body. any information about the murder, Cheryl called Crime Veazie's body was lying in the alley behind the strip center. Stoppers. There was a gunshot entrance wound in Veazie's left forehead, and stippling around the wound indicated that the bullet had been fired from a relatively short distance. The A large number of Sheriff's Department officers came to the bullet created an exit wound in front of Veazie's right ear. Hunter Wood apartments. The officers went door to door When investigators rolled Veazie's body over, they recovered looking for people in the apartment complex and they a bullet along with a sock from under Veazie's face. eventually came upon Cheryl, who was outside with her dog. Investigators also found a spent 7.62 x 39mm rifle cartridge Cheryl was reluctant to talk to the officers because all of the casing on the ground. Deputy Bradley Bruns, a firearms people in the complex were outside as a result of the officers' expert with the Harris County Sheriff's Department, testified activity. Cheryl suggested the officers act as if they were the cartridge had been fired from an AK–47 assault rifle. arresting her so she would have an opportunity to talk to them without it looking suspicious to her neighbors. In response to Cheryl's suggestion, the officers put her in handcuffs and The autopsy revealed that Veazie had also suffered multiple placed her in the back of a police car, where she talked to the blunt-force trauma to his head. As a result of repeated blows officer. While Cheryl was in the back of the police car, the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 27 -27- Smith v. State, Not Reported in S.W.3d (2015) officers cleared out one of Lo's apartments, and she identified one of the people who came out of the apartment as Turk. Cheryl later traveled to a nearby Sheriff's Department Detective 1: “Course you can.” substation where she gave a statement to detectives investigating Veazie's murder. Appellant: “I really-I-I know what's up. You know what I'm sayin'?” Sergeant Holtke and the other detectives investigating Veazie's death had learned information about the murder from people in the area that had caused them to go to the Hunter Detective 1: “You do know what's up with this?” Wood apartments on January 8, 2009. Prior to that point in time, Holtke had not yet heard of appellant, Turk, or Junior. Once at the Hunter Wood apartments, the officers learned Appellant: “Yes, sir, you know what I'm sayin', but only about apartment units that were occupied by several men. The thing is, you know what I'm sayin', they you know ...” officers also heard the names Turk and Lo. The officers proceeded to clear out what should have been vacant apartments and Turk was one of the people they cleared out. Detective 1: “If you, Dude, if you were there ...” He was arrested for capital murder that day. Holtke then interviewed Turk on two different occasions. At that point, Holtke was looking into a second suspect, known only as Appellant: “These people ...” Piper. During the interview with Cheryl at the Sheriffs Department substation, Cheryl identified Turk in a photospread and tentatively identified appellant as Piper from Detective 2: “Hey, hey, hey ...” one out of a selection of seventeen photographs of people named Carl Smith. Appellant: “These people ...” C. Appellant's interviews Having secured an identification of Piper as appellant, Holtke Detective 1: “Hey ...” was able to learn appellant had a court appearance scheduled on another criminal matter on January 14. Holtke and a second detective went to the courthouse and asked a bailiff to Appellant: “These people that I'm dealin' with ...” talk to appellant and bring him back to a jury room where they could speak with him. The bailiff brought appellant into the jury room where the two detectives were waiting. Detective 2: “Carl, Carl, Carl.” Appellant would participate in three recorded interviews that day. Detective 1: “Let him finish, he, he, he's talking.” *4 At the beginning of the first interview, the detectives greeted appellant and told him “you know you are not in Detective 2: “Okay.” custody or anything.” The detectives then said they wanted to talk to appellant about an event they were investigating. The detectives then showed appellant a Crime Stoppers flyer Appellant: “These people man, you know what I'm sayin', relating to Veazie's murder as well as a photo of Veazie's I'm scared of these people, man, you know what I'm abandoned car. Appellant initially denied having seen either sayin'?” Veazie or the car before. The conversation continued until about six minutes into the interview, when appellant said: “I need, I need a lawyer, sir. Can I, can I call my lawyer in Detective 1: “Okay.” here?” The following dialogue then occurred: Detective 1: “Course you can.” Appellant: “They, they, they vicious people man, you know what I'm sayin? They don't play no games, man.” Appellant: “Cause I really ... know what I'm sayin'?” © 2015 Thomson Reuters. No claim to original U.S. Government Works. 28 -28- Smith v. State, Not Reported in S.W.3d (2015) apartments because it would bring the police into the area to investigate. Sergeant Holtke then told appellant: “you're not Appellant continued talking with the detectives and explained in handcuffs; we're not taking you anywhere,” but they needed that the people he was talking about were gang-related and if appellant to tell them everything Turk had told him about the he told the police what had happened, he did not want his murder. Appellant responded that Turk told him that Turk had name connected with it. With that introduction, appellant told tied Veazie up so he would not run away, and that Turk had the detectives that he was visiting his “partner” Lo at the killed Veazie because he would not stop screaming and Hunter Wood apartments when Turk came in the apartment making noise. Appellant said he did not know why Turk saying he had just killed somebody. picked Veazie because “the dude didn't get nothing. He ain't got no rims on his car. He ain't got nothing. I don't see nothing he could get out of him, this man old. I don't know, man, Less than a minute later, which was about nine minutes into probably thought the man had a grip on him or something. the interview, the following exchange occurred: Know what I'm saying?”2 Appellant: “Well, know, ‘fore I say anything further man, you know what I'm sayin’, I really want to get my lawyer *5 The interview continued and appellant told the detectives up in here.” that in the organization he is part of, “you don't snitch on people.” He went on to explain that he believed in telling the Detective 1: “Well, get him.” truth. Appellant then changed his story, eventually telling the detectives that he did not know what Turk was going to do that night. He explained that he and Junior were not with Turk Appellant: “So I can understand what's going on.” at first. Turk told them he was going to “go hit a lick.” Later, appellant and some other people were in a park by Pine Trails when they heard gunshots and then Turk drove up in a car. Detective 1: “I mean, you know, that's ...” Appellant got into the passenger seat. Turk continued to drive, but the car did not run well, so they parked it in the spot where the police eventually found it. They then walked to the Detective 2: “Well, here, okay, then that's fine, but here's Hunter Wood apartments. Once back at the apartments, Turk what I'm not understanding. I'm trying to follow what informed them that he had shot a man a short time before. At you're saying here. You're saying you were just told about that point, about ten to twelve people walked back to the car this?” and tried to wipe their fingerprints off the car. Appellant: “Yeah, Turk just came and, you know, we was At this point in the interview, someone entered the jury room out and high when he came and told us.” and said the attorney is here. Appellant's attorney on another criminal matter then entered the jury room and introduced himself. The attorney invoked appellant's right to silence and asked if they could take a break so he could speak with Appellant went on to explain that Turk then showed them appellant. The attorney went on to say that they could where he had left the murdered man's car. Appellant told the reconvene after the break and appellant could decide if he detectives it was the car in the photo they had shown him at wanted to continue talking with the detectives. The first the beginning of the interview. At this point, appellant interview ended at that point, and the detectives left the room. admitted that he touched the car when he, and numerous others, went with Turk to look at the car. Appellant denied that he got inside the car, however. When asked who else had After appellant had an opportunity to speak with his attorney, gone with Turk to see the car, appellant admitted that Junior, the detectives re-entered the room. Holtke resumed recording his “little partner,” had gone with him. Appellant denied that and said that appellant's attorney had told them that appellant Junior had anything to do with the murder. Appellant also wanted to continue talking with them. During this second denied knowing Junior's real name. interview, which lasted approximately ten minutes, appellant explained that he was in a park behind the Pine Trails neighborhood with some females when he heard gunshots. Appellant told the detectives that he and the other people who Appellant saw a car drive up. Turk was driving and he told had followed Turk to the car were upset with Turk for appellant and Junior to get in the car. They then drove toward bringing the car to the vicinity of the Hunter Wood the Hunter Wood apartments and Turk parked the car where © 2015 Thomson Reuters. No claim to original U.S. Government Works. 29 -29- Smith v. State, Not Reported in S.W.3d (2015) it was later found by the police. The three of them then asked “where the bread at?” Turk then hit Veazie in the face walked along a trail in some woods toward the apartments, and asked “where the bread at?” Appellant said he told Turk and Turk pulled off his pants and attempted to burn them. “look dog[,] look bro [,] that man ain't got no money, know Turk told them that he had blood on the pants. When they got what I'm talking about.... Man got clothes ... in his car....” to the apartment, Turk told them he had murdered somebody. Appellant then told the detectives that Turk said that Veazie Turk then told them he had tied the man up and shot him with “had seen his face.” Thinking Turk was going to kill the man, an AEC–47 because the man would not be quiet. Lo and appellant told the detectives he walked out from behind the others, who were prominent in a gang, told everyone to be strip center and then down Wallisville Road toward the quiet about what they had heard, and then made threats as to Hunter Wood apartments. According to appellant, Junior what would happen if they were not. The interview concluded initially stayed with Turk but he came walking up about five with the detectives asking appellant if he would be willing to minutes later saying Turk was going to murder that man. Soon meet with them later to look at photos to identify the people thereafter, Turk drove up in the man's car, picked the two of he had discussed during the interview. Appellant was not them up, and then drove the car to the spot where it was found arrested and he left the jury room on his own. by the police. The third interview on January 14 started about one hour after D. Appellant's trial the conclusion of the second. Sergeant Holtke parked outside Appellant was charged with capital murder. He filed a the courthouse and appellant came out and got into Holtke's pre-trial motion to suppress that sought to exclude all four of vehicle. Appellant identified Turk in a photo spread and told his statements. The trial court denied the motion and filed Holtke the person he identified was the same person who had findings of fact and conclusions of law. The case proceeded shot Veazie. Appellant identified Lo in a second photo to trial, and the State sought to admit into evidence numerous spread. The interview ended when appellant got out of photographs of the crime scene and Veazie's body. Appellant Holtke's vehicle, less than seven minutes after he had gotten objected to the admission of State's Exhibits 8 and 9 as in. cumulative. Appellant also objected to State's Exhibits 51, 52, 53, 55, 56, 57, 59, and 60 as cumulative and prejudicial under Rule 403 of the Texas Rules of Evidence. The trial court Sergeant Holtke and his partner, Sergeant Eric Clegg, overruled the objections and admitted the photographs into interviewed appellant again on December 3, 2009. Appellant evidence. At the conclusion of the evidence, the jury found had been convicted on another criminal charge and was appellant guilty of capital murder and the trial court imposed incarcerated at the Baker Street Jail awaiting transportation to the mandatory sentence of life in prison without the a state jail facility when he was interviewed. Holtke read possibility of parole. This appeal followed. appellant his Miranda warnings and asked if he understood them. Appellant responded by asking if he was being charged with something. Holtke answered no. Appellant asked if he had a lawyer and Holtke again answered no. Appellant then Analysis asked if there was a warrant, and Holtke again answered no. Holtke then explained that because appellant was in custody As mentioned above, appellant raises four issues on appeal. on an unrelated matter, he had to read him his legal warnings. We address appellant's second issue first because it challenges Appellant then asked why they were talking to him. Holtke the trial court's denial of his motion for directed verdict and responded: “well, I'll explain that to you when you want to seeks rendition of a judgment of acquittal. talk to me.” Appellant responded “alright” and Holtke proceeded to ask appellant questions. I. The evidence is sufficient to support appellant's capital murder conviction because his own statements place him at *6 During the course of the interview, appellant admitted that the scene of the murder as a member of a conspiracy to he, Turk, and Junior “geared up” that night to “make some commit robbery. bread.” Appellant said that each was armed but Turk carried In his second issue, appellant contends the trial court should an AK–47. The three of them then walked over to the strip have granted his motion for directed verdict because the center on Wallisville Road and Turk went behind the center evidence is insufficient to support his capital murder to use the bathroom. Turk came out and said there was a man conviction. asleep behind the building. They walked behind the building and Turk woke the man up and got him out of his car. They took Veazie's wallet and there was nothing in it. Appellant A. Standard of review and applicable law © 2015 Thomson Reuters. No claim to original U.S. Government Works. 30 -30- Smith v. State, Not Reported in S.W.3d (2015) A challenge to the denial of a motion for directed verdict is a challenge to the legal sufficiency of the evidence. Gabriel v. A person may be guilty as a party to capital murder if the State, 290 S.W.3d 426, 435 (Tex.App.–Houston [14th Dist.] defendant committed the offense by his own conduct or by the 2009, no pet.). When reviewing the sufficiency of the conduct of another for which he is criminally responsible. evidence, we view all of the evidence in the light most Tex. Penal Code Ann. § 7.01(a) (West 2011); see Gross v. favorable to the verdict and determine, based on that evidence State, 380 S.W.3d 181, 186 (Tex.Crim.App.2012). “If, in the and any reasonable inferences therefrom, whether a rational attempt to carry out a conspiracy to commit one felony, jury could have found the elements of the offense beyond a another felony is committed by one of the conspirators, all reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 conspirators are guilty of the felony actually committed, (Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S. though having no intent to commit it, if the offense was 307, 318–19 (1979)). In conducting this review, an appellate committed in furtherance of the unlawful purpose and was court considers all evidence in the record, whether it was one that should have been anticipated as a result of the admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, carrying out of the conspiracy.” Tex. Penal Code Ann. § 767 (Tex.Crim.App.2013) (citing Dewberry v. State, 4 7.02(b) (West 2011). A defendant in a capital murder case S.W.3d 735, 740 (Tex.Crim.App.1999)). may be convicted solely on a conspiracy theory of culpability contained in the jury charge. Love v. State, 199 S.W.3d 447, 452 (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) (citing We may not substitute our judgment for that of the jury by Fuller v. State, 827 S.W.2d 919, 932–33 reevaluating the weight and credibility of the evidence. (Tex.Crim.App.1992)). Therefore, the State is not required to Romero v. State, 406 S.W.3d 695, 697 (Tex.App.–Houston present evidence of a defendant's intent to kill as long as the [14th Dist.] 2013, rev'd on other grounds by Romero v. State, evidence establishes that a felony was committed as a result 427 S.W.3d 398, 399 (Tex.Crim.App.2014)(per curiam)). We of a conspiracy and the murder should have been anticipated defer to the jury's responsibility to resolve any conflicts in the in carrying out the conspiracy to commit the underlying evidence fairly, weigh the evidence, and draw reasonable felony. Ruiz v. State, 579 S. W.2d 206, 209 (Tex.Crim.App. inferences. Id. The jury alone decides whether to believe [Panel Op.] 1979). eyewitness testimony, and it resolves any conflicts in the evidence. Id. The jury may choose to believe some testimony and disbelieve other testimony. Wyatt v. State, 23 S.W.3d 18, Proof of a culpable mental state invariably depends on 30 (Tex.Crim.App.2000). In addition, because it is the sole circumstantial evidence. See Heckert v. State, 612 S.W.2d judge of the weight and credibility of the evidence, the jury 549, 550 (Tex.Crim.App. [Panel Op.] 1981); Martin v. State, may find guilt without physical evidence linking the accused 246 S.W.3d 246, 263 (Tex.App.–Houston [14th Dist.] 2007, to the crime. Romero, 406 S.W.3d at 697. In conducting a no pet.). A culpable mental state can be inferred from the acts, sufficiency review, we do not engage in a second evaluation words, and conduct of the accused. Martin, 246 S.W.3d at of the weight and credibility of the evidence, but only ensure 263. the jury reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex.App.–Houston [14th Dist.] 2012, pet. ref'd). We may look to events before, during, and after the commission of the offense to determine whether there is sufficient evidence that an individual is a party to an offense. *7 A person commits capital murder if he intentionally causes Gross, 380 S.W.3d at 186. We may also consider the death of an individual in the course of committing or circumstantial evidence. Id. “There must be sufficient attempting to commit robbery. Tex. Penal Code Ann. §§ evidence of an understanding and common design to commit 19.02(b)(1), 19.03(a)(2) (West 2011). A person commits the offense.” Id. It is unnecessary that each fact point directly robbery if, in the course of committing theft and with the to the guilt of the defendant so long as the cumulative effect intent to obtain or maintain control of the property, he of the facts is sufficient to support the conviction under the intentionally, knowingly, or recklessly causes bodily injury to law of parties. Id. “However, mere presence of a person at the another or intentionally or knowingly threatens or places scene of a crime, or even flight from the scene, without more, another in fear of imminent bodily injury or death. Tex. Penal is insufficient to support a conviction as a party to the Code Ann. § 29.02(a)(1)-(2) (West 2011). Theft is the offense.” Id. unlawful appropriation of property with the intent to deprive the owner of the property. Tex. Penal Code Ann. § 31.03 (West 2011). Appropriation of property is unlawful if it is B. Sufficient evidence supports appellant's capital murder without the owner's effective consent. Id. § 31.03(b)(1). conviction. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 31 -31- Smith v. State, Not Reported in S.W.3d (2015) A person may be charged with an offense as a principal, a witness's recantation of her prior testimony); Johnson v. State, direct party, or a co-conspirator. See Tex. Penal Code §§ 7.01 421 S.W.3d 893, 898 (Tex.App.–Houston [14th Dist.] 2014, (person is “criminally responsible” if offense is committed by no pet.) (“Appellant's own statement that he did not conspire his own conduct or by the “conduct of another for which he to rob Vasquez does not render the evidence to the contrary is criminally responsible”); 7.02(a)(2) (describing criminal insufficient.”); see also Cole v. State, 194 S.W.3d 538, 551 responsibility for direct party); 7.02(b) (describing criminal (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) (holding jury responsibility for party as co-conspirator). Because the is entitled to believe any or all of testimony of the State's evidence offered at trial indicates that Turk shot Veazie, we witnesses and fact it resolved conflicts in the evidence in consider whether the evidence supports appellant's conviction favor of the State did not render evidence factually as a coconspirator. As explained below, we conclude the insufficient). evidence is sufficient to support appellant's conviction as a co-conspirator under section 7.02(b) because the evidence supports a finding that appellant should have anticipated the Appellant also is incorrect when he argues there must be possibility of a murder resulting from the course of evidence that he had an understanding and common design to committing robbery. commit murder. Instead, all that the State was required to prove beyond a reasonable doubt was that appellant was part of a conspiracy to commit another felony—here, robbery.See *8 Appellant is guilty of capital murder under section 7.02(b) Ruiz, 579 S.W.2d at 209. if (1) he was part of a conspiracy to rob Veazie; (2) one of the conspirators murdered Veazie; (3) the murder was in furtherance of the conspiracy; and (4) the murder should have We conclude there is sufficient evidence in the record been anticipated as a result of carrying out the conspiracy. supporting appellant's capital murder conviction. This Hooper v. State, 214 S.W.3d 9, 14 n.4 (Tex.Crim.App.2007). evidence includes Whitney Shaw's testimony that appellant Appellant argues there is no evidence linking him to Veazie's “geared up” along with Turk and Junior to go out and rob murder or establishing that he had an understanding and people to make some money the night of Veazie's murder, common design to commit murder that night. In making this indicating a prior plan to commit the robbery in which argument, appellant asserts we must disregard his December appellant participated. Although Shaw saw only two guns that 3, 2009 statement because he recanted it during his trial night, appellant admitted during his statement that all three testimony. Appellant also contends that Whitney Shaw's were armed. Appellant also admitted during his statement that testimony about appellant gearing up with Turk and Junior to he knew Turk was crazy, was a “super-gangster,” was “wired go rob people must be discounted because other witnesses up” on drugs the night of the murder, and was capable of testified that appellant was present at a family party in a committing violent acts. See Johnson, 421 S.W.3d at 898–99 different part of Harris County the night of Veazie's murder. (explaining that reason to believe co-conspirator was violent and awareness that co-conspirators were armed can show that defendant should have anticipated murder occurring in course We disagree that the evidence, when viewed under the of robbery). appropriate standard of review, is insufficient to support appellant's capital murder conviction. First, when reviewing sufficiency claims, an appellate court must consider all of the Appellant's statement also ties him directly to the robbery. evidence presented, whether properly or improperly admitted. Appellant told police during his December statement that he Ervin v. State, 333 S.W.3d 187, 200 (Tex.App.–Houston [1st and the other two armed men left the Hunter Wood Dist.] 2010, pet. ref'd) (citing Fuller, 827 S.W.2d at 931). We apartments and eventually walked behind a nearby strip center therefore consider both appellant's December 3, 2009 where they found Veazie asleep in his car. Appellant also told statement as well as Whitney Shaw's testimony. Appellant's the police that they removed Veazie from his car and that he decision to recant his statements during his trial testimony and himself asked, at least one time, where the “bread” was to present several alibi witnesses on his whereabouts on the located. Evidence also showed that Veazie was tied up, an night of the murder meant that it was up to the jury, as the action the jury could reasonably infer would require more exclusive judge of the credibility of the witnesses and the than one person to perform. Appellant also admitted during weight to be given their testimony, to resolve any conflicts his December 3, 2009 statement that he saw Turk beat and inconsistencies in the evidence and render its verdict. The Veazie. There was also evidence that Veazie was gagged and jury's choice to resolve those conflicts and inconsistencies in ultimately shot because he would not stop screaming. favor of the State does not render the evidence insufficient. Although appellant told police during his statement that he See Chambers v. State, 805 S.W.2d 459, 461 walked away from the scene before Veazie was shot, the jury, (Tex.Crim.App.1991) (stating the jury can disbelieve a as the trier of fact, was entitled to disbelieve that part of his © 2015 Thomson Reuters. No claim to original U.S. Government Works. 32 -32- Smith v. State, Not Reported in S.W.3d (2015) statement even if it accepted the remainder. See Chambers, testimony and other admitted evidence, the jury instructions, 805 S.W.2d at 461 (stating the jury, as the trier of fact, is the State's theories and any defensive theories, closing entitled to judge the credibility of witnesses and can believe arguments, and even voir dire if applicable. Bagheri v. State, some, all, or none of the testimony presented by the parties). 119 S.W.3d 755, 763 (Tex.Crim.App.2003). The presence of overwhelming evidence supporting the finding of guilt can also be a factor in the evaluation of harmless error. Motilla v. *9 The evidence also showed that Veazie's assailants took his State, 78 S.W.3d 352, 357 (Tex.Crim.App.2002). car and drove it a short distance away from the scene of the crime. Finally, appellant told the police during his statements that he, along with a group of about ten to twelve other As previously discussed, the record contains abundant people, went back to the car to wipe it down and thereby evidence of appellant's guilt. This evidence includes remove any evidence indicating that he had touched the appellant's December 3, 2009 statement, in which he vehicle. We conclude that this evidence of events before, confessed to every element of capital murder. In addition, the during, and after Veazie's murder would permit a rational trier State used the challenged photographs to illustrate the specific of fact to conclude, beyond a reasonable doubt, that appellant mechanics of Veazie's death, which helped to establish that was part of a conspiracy to rob Veazie, that appellant was there was more than one assailant. See Morales v. State, 32 present at the scene of the murder, that the murder was S.W.3d 862, 867 (Tex.Crim.App.2000) (holding reviewing committed by one of the conspirators in furtherance of the court should consider State's theory in assessing harm); conspiracy, and that appellant should reasonably have Samuels v. State, 785 S.W.2d 882, 888 (Tex.App.–San anticipated the possibility that a murder might occur during Antonio 1990, pet. ref'd) (considering State's purpose for the course of that robbery. Accordingly, we overrule offering autopsy photographs). In addition, the gruesome appellant's second issue. nature of the photos stems from the extremely brutal nature of the conspirators' own criminal conduct. See Jones v. State, 111 S.W.3d 600, 609 (Tex.App.–Dallas 2003, pet. ref'd) II. Appellant was not harmed by the admission of autopsy (considering the brutal nature of the defendant's criminal and crime scene photographs. conduct in determination that admission of autopsy Turning to appellant's arguments for a new trial, appellant photographs was not harmful). Finally, the State did not once asserts in his first issue that the trial court abused its mention the challenged photographs during its closing discretion when it admitted ten autopsy and crime scene argument. See Reese v. State, 33 S.W.3d 238, 244 photographs over his Rule 403 objection.3 According to (Tex.Crim.App.2000) (concluding erroneous admission of appellant, the challenged photographs were needlessly photographs was harmful in part because State emphasized cumulative of other evidence and their probative value was photographs during closing argument). substantially outweighed by the danger of unfair prejudice. Assuming without deciding that the trial court abused its discretion when it overruled his objections and admitted the *10 We conclude that, in the context of the entire case against challenged photographs into evidence, we conclude that appellant, any error the trial court may have made in appellant was not harmed as a result. admitting the challenged photographs did not influence the jury or had but a slight effect and therefore did not affect appellant's substantial rights. See Drew, 76 S.W.3d at 453. A conviction will not be reversed “ ‘merely because the jury We overrule appellant's first issue. was exposed to numerous admittedly ‘gruesome’ pictures.' ” Drew v. State, 76 S.W.3d 436, 453 (Tex.App.–Houston [14th Dist.] 2002, pet. ref'd) (quoting Long v. State, 823 S.W.2d III. The trial court did not abuse its discretion when it 259, 275 (Tex.Crim.App.1991)). The admission of evidence denied appellant's motion to suppress his January and in violation of an evidentiary rule is non-constitutional error. December statements. Hamilton v. State, 399 S.W.3d 673, 684 (Tex.App.–Amarillo In his third issue, appellant contends that the trial court 2013, pet. ref'd) (citing Johnson v. State, 967 S.W.2d 410, abused its discretion when it denied his motion to suppress 417 (Tex.Crim.App.1998)). The trial court's erroneous and admitted into evidence audio recordings of two of his admission of photographs is harmless if, after reviewing the statements to the detectives investigating Veazie's murder. entire record, we have fair assurance that the error did not Appellant argues the trial court should have excluded the first influence the jury or had but a slight effect upon the jury's statement he made on January 14, 2009 because it resulted verdict. Rolle v. State, 367 S.W.3d 746, 752 from “an un-Mirandized custodial interrogation in which he (Tex.App.–Houston [14th Dist.] 2012, pet. ref'd). In making invoked his right to counsel and was denied access to this determination, an appellate court should consider the trial counsel.” Appellant also asserts the trial court should have © 2015 Thomson Reuters. No claim to original U.S. Government Works. 33 -33- Smith v. State, Not Reported in S.W.3d (2015) excluded his December 3, 2009 statement because “it was the armed detectives, and other people were denied entry into the result of a Mirandized custodial interrogation in which room during the interview. Appellant also points to his [appellant] invoked his right to counsel and was denied access testimony that he subjectively believed he was under arrest to counsel.” We address each argument in turn. and was not free to leave the jury room. A. Standard of review In Miranda, the Supreme Court of the United States held that In reviewing a trial court's ruling on a motion to suppress, an “the prosecution may not use statements, whether exculpatory appellate court must apply an abuse-of-discretion standard or inculpatory, stemming from custodial interrogation of the and overturn the trial court's ruling only if it is outside the defendant unless it demonstrates the use of procedural zone of reasonable disagreement. Martinez v. State, 348 safeguards effective to secure the privilege against S.W.3d 919, 922 (Tex.Crim.App.2011). We must view the self-incrimination.” 384 U.S. at 444. Texas codified these evidence in the light most favorable to the trial court's ruling. safeguards in article 38.22 of the Texas Code of Criminal Weide v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). At Procedure. Section 3(a) of article 38.22 provides that no oral a suppression hearing, the trial judge is the sole trier of fact statement of an accused “made as a result of custodial and assesses the witnesses' credibility and decides the weight interrogation” shall be admissible against him in a criminal to give to that testimony. Id. at 24–25. When, as here, the trial proceeding unless an electronic recording of the statement is court makes explicit fact findings, we determine whether the made, the accused is given all specified warnings, including evidence, when viewed in the light most favorable to the the Miranda warnings, and he knowingly, intelligently, and ruling, supports those fact findings. State v. Kelly, 204 voluntarily waives the rights set out in the warnings. S.W.3d 808, 818 (Tex.Crim.App.2006). We then review the Tex.Code Crim. Proc. Ann. art. 38.22 § 3(a) (West 2005). trial court's legal rulings de novo unless its explicit fact findings that are supported by the record are also dispositive of the legal ruling. Id. We uphold the ruling if it is supported Miranda warnings and article 38.22 requirements are by the record and correct under any theory of the law mandatory only when there is a custodial interrogation, applicable to the case. Hereford v. State, 339 S.W.3d 111, however. Herrera v. State, 241 S.W.3d 520, 526 117–18 (Tex.Crim.App.2011). (Tex.Crim.App.2007). The meaning of “custody” is the same for purposes of both Miranda and article 38.22. Id. The State has no burden to show compliance with Miranda unless and Generally, we limit the scope of our review to the evidence until the record as a whole “clearly establishes” that the adduced at the suppression hearing because the ruling was defendant's statement was the product of a custodial based on it rather than evidence introduced later. Gutierrez v. interrogation. Id. State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007); Turner v. State, 252 S.W.3d 571, 577 (Tex.App.–Houston [14th Disk] 2008, pet. ref'd). But, when, as here, the parties re-litigate the Generally, a person is considered to be in custody for suppression issue at trial, we consider all evidence from both purposes of Miranda and article 38.22 when: (1) the person the pre-trial suppression hearing and the trial in reviewing the is formally arrested; or (2) the person's freedom of movement trial court's determination. See Gutierrez, 221 S.W.3d at 687; is restrained to the degree associated with a formal arrest. Turner, 252 S.W.3d at 577.4 Nguyen v. State, 292 S.W.3d 671, 677 (Tex.Crim.App.2009). Because it is undisputed that appellant was not formally under arrest during any of his January 2009 statements, the issue B. Because appellant was not in custody during his first here turns on whether a reasonable person would have felt January 2009 statement, the trial court did not abuse its that he was not at liberty to terminate the interview and leave. discretion when it denied appellant's motion to suppress the Nguyen, 292 S.W3d at 678; Dowthitt v. State, 931 S.W.2d statement. 244, 254 (Tex.Crim.App.1996) (citing Stansbury v. *11 Appellant argues the trial court should have suppressed California, 511 U.S. 318, 322 (1994)). Our custody inquiry the audio recording of his initial interview on January 14, includes an examination of all the objective circumstances 2009 because (1) he was in custody, (2) he invoked his right surrounding the questioning. Herrera, 241 S.W.3d at 525. to counsel during the interview, and (3) the detectives denied The subjective belief of law enforcement officers about him access to his attorney and continued to question him. In whether a person is a suspect does not factor into the custody support of his contention that he was in custody during the determination unless that officer's subjective belief has been initial interview, appellant points out that he was taken to a conveyed to the person being questioned. Id. at 525–26. jury room by an armed bailiff, the jury room was in a non-public area of the courthouse, he was interviewed by two © 2015 Thomson Reuters. No claim to original U.S. Government Works. 34 -34- Smith v. State, Not Reported in S.W.3d (2015) Here, the interview occurred in a jury room in the Harris had the opportunity to talk with an attorney. See Estrada v. County criminal courthouse, where appellant had appeared in State, 313 S.W.3d 274, 296 (Tex.Crim.App.2010) (“The need connection with another criminal matter. Appellant was to scrupulously honor a defendant's invocation of Miranda brought to the jury room by a bailiff and there were two rights does not arise until created by the pressures of a plain-clothes detectives in the room waiting for him. Both custodial interrogation.”). We therefore hold the trial court detectives were armed, but they did not display their weapons did not abuse its discretion when it denied appellant's motion during the interview. The complete interview was recorded to suppress his first January 2009 statement. and is contained in the appellate record. The detectives explicitly told appellant at the beginning of the interview that he was not in custody. Similarly, one of the detectives C. The trial court did not abuse its discretion when it reminded appellant later in the interview that appellant was denied appellant's motion to suppress his December 2009 not in handcuffs and the detectives were not going to take him statement because he did not unambiguously invoke his anywhere. In addition, when appellant asked if he could call right to counsel. the lawyer representing him in the other criminal matter into Appellant next asserts that the trial court abused its discretion the room, the detectives told him that he could. Shortly when it refused to suppress his December 3, 2009 statement. thereafter, when appellant said he wanted to get his lawyer, According to appellant, the trial court should have suppressed the detectives told him to go get him. Appellant did not, but the December statement because (1) the statement was made instead continued talking with the detectives. Appellant's during a custodial interrogation; (2) he did not waive his subjective belief that he was under arrest and was not free to rights but instead adequately invoked his right to counsel terminate the interview and leave the jury room is not relevant during the January and December interviews; (3) the to our analysis. See Dowthitt, 931 S.W.2d at 254. detectives then denied him access to an attorney; and (4) the detectives continued with the interview anyway.5 According to appellant, the detectives' conduct violated his Fifth *12 Appellant's lawyer eventually arrived at the jury room. Amendment right to counsel. Appellant also argues that the The lawyer was allowed into the jury room and he asked for trial court should have suppressed his December statement a break to speak with appellant. When the lawyer asked if because he had previously invoked his right to counsel there was a warrant out for appellant, the detectives denied regarding another offense and he could not be approached there was. The attorney then told the detectives that if regarding any other offense unless his counsel was present. In appellant wanted to continue talking with them, the interview appellant's view, the fact the detectives approached him in could continue after the break. The first interview ended at December 2009 violated his Sixth Amendment right to that point in time. The second interview started a few minutes counsel. We disagree that the detectives' handling of the later. Sergeant Holtke began the second interview by stating December interview violated either appellant's Fifth that appellant's attorney had told them that appellant wanted Amendment or Sixth Amendment rights to counsel. to continue talking with them. Appellant did not disagree and participated in the interview. At the end of the second interview, appellant was allowed to leave the jury room. The third interview occurred later the same day, when appellant 1. Fifth Amendment right to counsel exited the courthouse and voluntarily got into Holtke's vehicle to look at photo spreads. At the end of that brief interview, *13 The Fifth Amendment right to have an attorney present appellant was allowed to leave Holtke's vehicle. during any custodial police interrogation applies to any offense about which the police might want to question a suspect. State v. Gobert, 275 S.W.3d 888, 892 The trial court found that appellant voluntarily participated in (Tex.Crim.App.2009). Among the rights about which the all of his interviews with the detectives investigating Veazie's police must advise a suspect whom they have arrested is the murder. It further concluded that appellant was not in custody right to have counsel present during any police-initiated during the January 2009 statements. Applying the appropriate interrogation. Id. Once the suspect in custody has invoked his standard of review, we conclude that the record, summarized Fifth Amendment right to counsel, police interrogation must above, supports the trial court's conclusion that appellant's cease until counsel has been provided or the suspect himself first January 2009 interview was not the product of a reinitiates the dialogue.Edwards v. Arizona, 451 U.S. 477, custodial interrogation. See Turner, 252 S.W.3d at 582. 484–85 (1981); Gobert, 275 S.W.3d at 892. Because the first January interview was not a custodial interrogation, we need not further address whether appellant adequately invoked his right to counsel, which would have The State does not contest that appellant was in custody required the detectives to stop the interview until appellant during the December interview and instead points out that the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 35 -35- Smith v. State, Not Reported in S.W.3d (2015) trial court found he received the required warnings at the suppress his December statement to the extent it was based on beginning of the interview. The State goes on to argue that the Fifth Amendment right to counsel. appellant did not unambiguously invoke his right to counsel during the December interview. The State then contends that appellant voluntarily waived his rights when he answered “alright” to Sergeant Holtke's statement that he would explain 2. Sixth Amendment right to counsel why they were talking to him when appellant wanted to speak with them. We agree with the State. *14 With regard to his Sixth Amendment right, appellant contends that once he had invoked his right to counsel on other charges, the police were not allowed to speak with him We turn first to the question whether the record supports the regarding the Veazie murder unless his attorney was present. trial court's conclusion that appellant waived his rights at the We disagree. beginning of the December interview. Although appellant did not expressly state that he waived his rights at the beginning of the December interview, we conclude that he did so The Sixth Amendment right to counsel is offense specific. implicitly by responding “alright” and answering questions Rubalcado v. State, 424 S.W.3d 560, 570 after being read his rights. See Turner, 252 S.W.3d at (Tex.Crim.App.2014). Thus, the right does not prevent the 583–84. The next question is whether appellant thereafter police from asking about an offense different from the offense invoked his right to counsel, requiring the detectives to stop regarding which the suspect has previously invoked his right the interview. Because there was no unambiguous invocation to counsel.Cobb v. State, 85 S.W.3d 258, 263–64 of his right to counsel after he had implicitly waived his (Tex.Crim.App.2002). “In other words, the invocation of the rights, we conclude that he did not. right viz one charge or prosecution does not encompass all future, yet distinct, offenses and prosecutions therefor.” Romo v. State, 132 S.W.3d 2, 4 (Tex.App.–Amarillo 2003, no pet.). Appellant points out that he asked at the beginning of the The critical inquiry for purposes of the Sixth Amendment December interview, “I got a lawyer?” He argues this right to counsel is whether the offenses are the same. See question was a sufficiently unambiguous invocation of his Blockburger v. United States, 284 U.S. 299, 304 (1932) right to counsel that the detectives should have stopped the (announcing test to determine whether offenses are the same); interview until he had had an opportunity to speak with an Cobb, 85 S.W.3d at 264; Romo, 132 S.W.3d at 4. attorney.6 But not every mention of a lawyer by a suspect will suffice to invoke the Fifth Amendment right to the presence of counsel during questioning. Gobert, 275 S.W.3d at 892. Here, appellant does not argue that the capital murder charge An ambiguous or equivocal statement with respect to counsel is the same as the other offenses regarding which he had does not even require officers to seek clarification, much less previously invoked his right to counsel.8 Therefore, appellant halt their interrogation. Id. Whether the mention of a lawyer has not shown that the detectives violated his Sixth constitutes a clear invocation of the right to counsel will Amendment right to counsel when they interviewed him on depend upon the statement itself and the totality of the December 9, 2009. We conclude that the trial court did not circumstances. Id. The test is an objective one and the suspect err when it denied appellant's motion to suppress to the extent must articulate his desire to have counsel present sufficiently the motion was based on the Sixth Amendment right to clearly that a reasonable police officer in the circumstances counsel. Having addressed and rejected each argument raised would understand the statement to be a request for an in appellant's third issue, we overrule that issue. attorney. Id. at 892–93. IV. The record on appeal contains a signed and certified Based on the totality of the circumstances, we conclude that Criminal Bill of Costs that supports the trial court's appellant's question was not a clear and unequivocal assessment of $614 in court costs against appellant. invocation of his right to counsel. See Davis v. United States, In his fourth issue, appellant contends there is no bill of costs 512 U.S. 452, 462 (1994) (holding that statement “Maybe I in the appellate record, and therefore the evidence supporting should talk to a lawyer” was not request for counsel).7 the trial court's assessment of court costs against him is Because appellant's question did not clearly and insufficient. We review the assessment of court costs on unambiguously request counsel, the detectives were under no appeal to determine whether there is a basis for the costs, not obligation to halt the interview or even to seek clarification whether there was sufficient evidence offered at trial to prove from appellant. Gobert, 275 S.W.3d at 892. We conclude that each cost. Johnson v. State, 423 S.W.3d 385, 390 the trial court did not err when it denied appellant's motion to © 2015 Thomson Reuters. No claim to original U.S. Government Works. 36 -36- Smith v. State, Not Reported in S.W.3d (2015) (Tex.Crim.App.2014). Traditional sufficiency-of-the-evidence standards do not apply. Id. Generally, a bill of costs must (1) contain the items of cost, (2) be signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost, and (3) be certified. Id. at 392–93; see Tex.Code Crim. Proc. Ann. arts. 103.001, 103.006 (West 2005). The record in this case contains a Criminal Bill of Costs signed and certified by the district clerk and a deputy clerk. The Criminal Bill of Costs lists the costs assessed, and the amount totals $614, the amount of court costs assessed against appellant. Under Johnson, a criminal bill of costs such as the one contained in the appellate record of this case provides a sufficient basis for the trial court's assessment of costs. Id. at 392–96. In addition, there is no requirement that the bill of costs be brought to the trial court's attention. Id. at 394. We therefore hold the Criminal Bill of Costs supports the assessment of $614 in court costs against appellant. We overrule appellant's fourth issue. Conclusion *15 Having addressed and rejected each of the issues raised by appellant, we affirm the trial court's judgment. All Citations Not Reported in S.W.3d, 2015 WL 3751776 Footnotes 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 Appellant explained that a “grip” means “a bunch of money.” 3 Appellant also includes in his first issue an assertion that the trial court's admission of these photographs violated his right to a fair trial under the Eighth and Fourteenth Amendments to the United States Constitution. Appellant does not, however, support this assertion by providing appropriate citations to the record and legal authority in his discussion of the issue. We therefore hold he has waived this portion of the issue due to inadequate briefing. See Tex.R.App. P. 38.1(i). 4 Arguably, this review should include only trial evidence up to the point in the trial when the court made its final ruling on the suppression issue. We need not resolve this scope question, however, because the parties do not argue that it affects the outcome of our analysis in this case. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 37 -37- Smith v. State, Not Reported in S.W.3d (2015) 5 We already have determined that appellant was not in custody during the January interviews. Therefore, even if appellant unambiguously asked for an attorney during those interviews, the detectives were not obligated to provide appellant with an attorney or to terminate the interview at that time. See Estrada v. State, 313 S.W.3d 274, 296 n.26 (Tex.Crim.App.2010) (noting that the “defendant's remedy in a noncustodial setting where the police continue questioning the defendant after the defendant has unambiguously invoked his right to silence is to simply get up and leave ...”). 6 This is the only reference to an attorney that appellant points out in his brief. We have listened to the entire recording of the December interview and conclude that this was the only time during the interview that appellant mentioned the word “lawyer” or “attorney”. 7 See also Mbugua v. State, 312 S.W.3d 657, 665 (Tex.App.–Houston [1st Dist.] 2009, pet. ref'd) (holding that question “Can I wait until my lawyer gets here?” was not clear and unambiguous assertion of right to counsel); Gutierrez v. State, 150 S.W.3d 827, 832 (Tex.App.–Houston [14th Dist.] 2004, no pet.) (holding that question “Can I have [my attorney] present now?” was ambiguous and did not clearly and unequivocally invoke right to counsel); Halbrook v. State, 31 S.W.3d 301, 304 (Tex.App.–Fort Worth 2000, pet. ref'd) (holding that question “Do I get an opportunity to have my attorney present?” did not constitute clear and unambiguous invocation of right to counsel); Flores v. State, 30 S.W.3d 29, 34 (Tex.App.–San Antonio 2000, pet. ref'd) (holding that question “Will you allow me to speak to my attorney before?” was not clear and unambiguous invocation of right to counsel). 8 Appellant testified during his trial that his previous criminal charges included: (1) unauthorized use of a motor vehicle; (2) evading arrest in a motor vehicle; and (3) attempted injury to a child. End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 38 -38-