Opinion
NO. 03-14-00088-CRNO. 03-14-00408-CR
03-17-2016
Darius Dontae Lovings, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT, NOS. D-1-DC-12-301231 & D-1-DC-12-203247, HONORABLE JULIE H. KOCUREK, JUDGE PRESIDINGMEMORANDUM OPINION
The State charged Darius Dontae Lovings with murder and two counts of aggravated robbery with a deadly weapon. See Tex. Penal Code §§ 19.02, 29.03. After a trial on the murder charge, a jury found appellant guilty and assessed punishment at seventy-five years' imprisonment. See id. §§ 12.32, 19.02. Appellant and the State then reached a plea agreement regarding the aggravated-robbery charges. In the agreement, appellant pleaded guilty to one count of aggravated robbery with a deadly weapon, and the State waived the other count. The agreement also provided that appellant would serve twenty years in prison to run concurrently with his murder sentence.
In five issues, appellant contends that the trial court erred in denying his motion to suppress statements he made during an interrogation, admitting certain witness testimony, and denying appellant's request for a special instruction in the jury charge. We will affirm the trial court's judgment.
BACKGROUND
The evidence in the record shows that appellant borrowed his cousin's car, a purple 1997 Honda Accord, at about 8:00 p.m. on June 24, 2012. Appellant's cousin testified that appellant was wearing dark-colored cargo shorts; Nike tennis shoes; a white, sleeveless shirt; and a red shirt thrown over his shoulder at the time that he borrowed the car. Appellant's cousin further testified that appellant seemed "a little distraught," "a little disturbed," and "wasn't his normal self" at that time. Appellant told his cousin that he would need the car for only forty-five minutes.
After approximately two hours, appellant had not returned with the car, and his cousin began calling him. Appellant's cousin called appellant about nine or ten times, but appellant did not answer the phone. Approximately three hours after appellant left with the car, appellant called his cousin and told him everything was ok and he would be back soon. Approximately two hours after that, at about 12:45 a.m., appellant returned with the car.
A man named Jonathan Verzi testified that he was driving home from a friend's house at approximately 11:00 p.m. on the night of June 24, 2012. As he drove on Sprinkle Cutoff Road, Verzi saw a car stopped on the side of the road with its headlights flashing. Verzi pulled over to the side of the road to see if the person in the car needed help. Verzi, who was a mechanic and familiar with different makes and models of cars, testified that the car on the side of the road was a purple, late-1990s model Honda Accord. After Verzi stopped his car, a person who he described as a black man in his late 20s or early 30s approached his car, said he was having car problems, and asked if Verzi could help. Verzi began to take off his seat belt when he heard a click and turned around to see a gun pointed at his face. He assumed that the clicking sound was caused by the man pulling the trigger. Verzi put his car into first gear and drove away as quickly as he could. After driving down the road, Verzi turned onto a side street, pulled over, and called the police. Verzi testified that the man who pointed the gun at him was wearing a red t-shirt with graphics on it and dark cargo shorts.
Also on the night of June 24, 2012, at approximately 11:00 p.m., a man named William Ervin finished his day of work at the Department of Public Safety and headed home. At approximately midnight that night, a family traveling home to Austin found Ervin unresponsive in his car on Sprinkle Cutoff Road. The family initially stopped because they saw Ervin's car against a fence post with the lights on and the engine running. Ervin was slumped over in the driver's seat, and there was a considerable amount of blood in the car. The family called 9-1-1, and police arrived and identified Ervin. The medical examiner determined that the cause of Ervin's death was a gunshot wound to the left side of his head. A detective who investigated the crime scene testified that Ervin's car had gone in reverse for about fifty feet through brush before it had come to rest against a fence post.
At nearly midnight on the day after the murder, a police officer was parked on the side of the road in his patrol car typing up a report when appellant drove past the officer, stopped, and then reversed directly into the patrol car. Appellant was driving a white Nissan Maxima, which was later identified as a car that had been stolen at gunpoint from two people earlier that day. Both the officer and appellant got out of their cars, and appellant became uncooperative when the officer tried to get him to show his hands. Another officer arrived to assist, but appellant became aggressive with the officers and ran. The first officer used his Taser on appellant multiple times before he was able to subdue appellant. At the time of his arrest, appellant was wearing black cargo shorts, a white, sleeveless shirt, and Nike shoes. Inside the Nissan that appellant had been driving, officers found a red t-shirt with a graphic design on it and a backpack that contained a revolver and semi-automatic pistol.
A firearms expert tested the guns found in appellant's possession at the time of his arrest and testified that the bullet removed from Ervin by the medical examiner was fired by the revolver in appellant's possession.
DISCUSSION
On appeal, appellant raises five issues, including two issues regarding the trial court's denial of his motion to suppress statements he made during an interrogation, two issues regarding the trial court's admission of witness testimony, and one issue regarding the jury charge. We address each issue below.
Motion to Suppress
In appellant's first two issues, he challenges the trial court's denial of his motion to suppress, arguing that the trial court should have granted the motion because (1) appellant invoked his right to remain silent before making inculpatory statements during his interrogation, and (2) he did not knowingly, intelligently, and voluntarily waive his Miranda rights. We review a trial court's ruling on a motion to suppress under an abuse-of-discretion standard. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). In doing so, we view the evidence in the light most favorable to the trial court's ruling. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2013). We give deference to the trial court's determination of historical facts, especially if those are based on an assessment of credibility and demeanor. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We afford the same deference to rulings on application of the law to questions of fact and to mixed questions of law and fact if resolution of those questions depends on an assessment of credibility and demeanor of witnesses. Id. We review de novo pure questions of law and mixed questions of law and fact that do not depend on evaluating credibility and demeanor. Martinez v. State, 348 S.W.3d 919, 923 (Tex. Crim. App. 2011).
A. Invocation of Right to Remain Silent
In his first issue, appellant contends that the trial court should have granted his motion to suppress on the basis that he invoked his right to remain silent on four separate occasions during his interrogation before ultimately making inculpatory statements. The Fifth Amendment to the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. See Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008); Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007) (citing U.S. Const. amend. V). Consistent with this Fifth-Amendment guarantee, law enforcement officials, before questioning a person in custody, must inform him that he has the right to remain silent and that any statement he makes may be used against him in court. Miranda v. Arizona, 384 U.S. 436, 444 (1966); Ramos, 245 S.W.3d at 418. If the individual in custody indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Miranda, 384 U.S. at 473-74; Ramos, 245 S.W.3d at 418. The suspect is not required to use any particular word or phrase to invoke the right to remain silent. See Ramos, 245 S.W.3d at 418. However, an interrogating officer is not required to terminate his questioning unless the suspect's invocation of his rights is unambiguous. Id. Further, a police officer is permitted, but not required, to clarify a suspect's wishes when faced with an ambiguous invocation of the right to remain silent. Kupferer v. State, 408 S.W.3d 485, 489 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd). Courts must look to the totality of the circumstances in determining whether the right to remain silent was unambiguously invoked. Id.; Williams v. State, 257 S.W.3d 426, 433 (Tex. App.—Austin 2008, pet ref'd). Ambiguity exists when the suspect's statement is subject to more than one reasonable interpretation under the circumstances. Kupferer, 408 S.W.3d at 489; Williams, 257 S.W.3d at 433.
Here, appellant contends that he unambiguously invoked his right to remain silent during the interrogation when he stated, "I plead the Fifth." The video of the interrogation, which was admitted into evidence at trial, lasts approximately five hours. We will summarize the video as follows before determining whether appellant unambiguously invoked his right to remain silent. At the beginning of the interrogation, a detective reads appellant his Miranda rights and asks appellant if he understands them. Appellant says, "Uh-huh." Then, for much of the first hour, two detectives question appellant. Appellant sits forward in a chair with his arms folded in front of him. He provides brief, often one-word, answers to background questions and to questions about what he did the previous day. At one point, he states that he is hearing voices and asks if the detectives can hear them. At approximately one hour into the video, the detectives take a break to get appellant food and return approximately ten minutes later to resume questioning. At shortly after one hour into the video, one of the detectives says to appellant, "The only way I'm going to know your side of the story is for you to tell me. So how did it go?" In response, appellant says, "The voices told me to do it." At that point, appellant had not mentioned anything about a murder but had only stated that he believed he was arrested for reckless driving.
After appellant's statement about hearing voices, the detectives continue questioning appellant about the voices, and appellant states that the voices told him to do "crazy stuff." The officers then question appellant about why he was carrying two guns with him, and appellant answers, "I feared for my life," and that the fear was "[f]rom the voices." The detectives continue asking appellant about the guns—what type they were, how long he had them, and who he got them from. Appellant provides brief answers and often says he does not remember. Eventually, the detectives ask him who he might borrow guns from if he were to do so, and he says he would borrow them from his friend Jimmy. When the detectives continue asking appellant about Jimmy, appellant does not answer several of the questions or provides brief answers and then says he does not remember where he got the guns. Shortly after that, appellant stays silent in response to questions and appears to get upset, putting his head down and shaking it back and forth. He seems to be breathing heavily or crying. He then says, "The voices got me tripping yesterday, right?" He puts his head down in his hands.
One of the detectives tells appellant that appellant seems to be "getting kind of worked up" and says, "You want a few minutes to hang out or you want us to keep talking to you? We just have a few more questions for you." Appellant answers, "Keep talking." The detectives continue questioning appellant for a few minutes and ask him where and when he got the guns that were found in his possession. Appellant says he got the guns at 6 p.m. the previous day but also expresses confusion about remembering which events happened on which day. The detectives ask him when he went to Jimmy's house and how he got there, and appellant says, "I plead the Fifth." One of the detectives says, "Okay." The following exchange then occurs between the second detective and appellant:
Detective: When you say you plead the Fifth, you mean you just don't want to answer that question? Is that what you're saying?The detectives then tell appellant that they are going to take a break, and they leave the room for approximately sixteen minutes.
Appellant: That damn right.
Detective: Okay. You got any questions for us?
Appellant: No.
Detective: Okay. You don't wonder like what your charges are or how long you're going to be here or anything like that?
Appellant: What's my charges?
Detective: Well, I'm trying to talk to you and I was ready to explain everything to you, but you're not really talking to us. Right now you're in charge—you're being charged for taking that car.
Appellant: Right.
Detective: So—and I think you already knew that.
Appellant: Uh-huh.
Detective: But the reason we're asking about weapons is, you know, are they stolen? That's a different charge. We just need to know did you steal them from somewhere?
Appellant: No.
When the detectives return after the break, they ask appellant how he is doing and if he has had enough to eat, and then they continue questioning him for approximately twenty minutes about what he did and where he stayed during the previous weekend. At that point, a detective states, "And then but [sic] you stayed at your grandmother's house that night. So at what point did you go back to your grandmother's? You told me earlier like 1:30 in the morning you go back to your grandmother's house?" Appellant does not answer for several seconds and then leans back and puts his hands on his head while remaining silent. The detective continues, asking, "Is that right, you stayed at your grandmother's Sunday night?" Appellant continues to lean back, rubs his hands on his head for several seconds, and then says, "I plead the Fifth." The detective says, "Okay." Appellant continues leaning back and rubbing his head while he and the detectives stay silent for several more seconds. Then, one of the detectives asks, "Can you tell me anything else you did on Sunday?" Appellant does not answer for several seconds. The detective asks, "So anybody can say you were with them? Anybody can verify where you were?" After a few seconds, appellant, still leaning back and rubbing his head, states, "I plead the Fifth."
In response, the following exchange occurs:
Detective: All right. Do you know where you are right now?
Appellant: Uh-huh.
Detective: Where are you?
Appellant: Seventh Street.
Detective: That's right. Police department. Did you borrow anybody's car this weekend?
Appellant continues leaning back and stays silent for several seconds. He then says, "Yeah, I had my cousin's car." The detectives continue to question appellant about the car he borrowed, when he borrowed it, and whether he had the guns with him when he borrowed it. Appellant hesitates for several seconds after each question is asked, creating long pauses where he and the detectives sit in silence, and he often does not answer before another question is asked. He answers some of the questions with brief responses. He folds his arms in front of him and hunches forward. At times, he slowly shakes his head or drops his head down during long pauses when he does not respond to questions. The detectives then go on to state that appellant and the car matched the descriptions given by the first victim, Verzi, and that the detectives knew that it was appellant who "scared the hell out of that kid." Appellant says it was not him and that he did not know what happened. The detectives continue questioning him, asking him a series of questions about the incident with Verzi, such as, "Why did you scare the hell out of that kid?" The detectives repeat the same or similar questions several times, and appellant either does not respond or continues to deny involvement. Eventually, appellant states, "Just trying to scare him," in response to questions about whether he intended to carjack Verzi or had another intention. The detectives continue to ask further questions about it, and after about a minute, appellant again says he was "just trying to scare [Verzi]." He also says that he "flagged" Verzi down, that Verzi drove a sporty car, and that he said something like "you're going to get yours, B" to Verzi. During this period of questioning, appellant hunches forward again with his arms folded across his chest, and at one point, puts his head down during a long pause while remaining silent in response to a question from the detective. Eventually, one of the detectives states, "We know the answer to 99 percent of the questions we're asking you, but we got to hear your side of the story to be able to put it together. So my question is, when did you take the bullets out of the gun to scare this kid, if the gun was unloaded? Before you left in [your cousin's] car or after you were on that country road?" Appellant does not respond for several seconds, and the detective briefly puts his hand on appellant's shoulder and says, "I know you're here, man." Appellant says, "I plead the Fifth." The following exchange then occurs:
Detective: Okay. That's fine. So can you tell me why you scared him, what made you decide to scare this kid? Were you frustrated? Had you been arguing with your grandmother again? Because [your cousin] was mad at you for having his car so long, you got frustrated?The detectives continue questioning appellant for a little more than two more hours, during which appellant often does not respond to questions, creates long pauses, and for long periods of time, slowly shakes his head, hunches over, puts his head down, and covers his head with his hands. At times, the detectives ask up to ten questions in a row without getting a response. At different points, appellant says, "I need somebody . . . please," "Somebody please come help me, man," "I'm off balance," and "I'm in a no-win situation." At other times throughout the two hours, appellant makes certain incriminating statements. For example, he states, "I had to do it or I was going to die," "The voices told me that if I didn't [find a victim], I was going to die," "My life was on the line," and "I was told to flag him down." In response to the detective's question about whether appellant regretted taking Ervin's life, appellant answers, "Yeah, I regret it." In response to the detective's question about what happened to Ervin's car after appellant shot him, appellant states, "The car went back in reverse" and that it ended up "in the woods."
Appellant: Just going through it.
On appeal, appellant contends that he unambiguously invoked his right to remain silent each time he stated, "I plead the Fifth." In support of his argument, appellant cites a case from the Ninth Circuit Court of Appeals in which the court held that the defendant's statement of "I plead the Fifth" was unambiguous, requiring the interrogators to immediately cease questioning. See Anderson v. Terhune, 516 F.3d 781, 787-88 (9th Cir. 2008). The State concedes that the statement "I plead the Fifth" could be unambiguous in some circumstances, including the circumstances in Anderson, but argues that the statement was ambiguous each time it was stated in this case. The State argues that the defendant's statement of "I plead the Fifth" in Anderson was unambiguous because at the time the defendant made the statement, he had already made two statements attempting to stop police questioning. Specifically, the defendant stated, "I don't want to talk about this no more" and "I'm through with this. I'm through. I wanna be taken into custody" during the time leading up to him stating, "I plead the Fifth." Id. at 785-86.
The phrase "I plead the Fifth" is well-recognized as being analogous with "I want to remain silent" or "I do not want to talk." See Quinn v. United States, 349 U.S. 155, 163 (1955) ("Surely, in popular parlance and even in legal literature, the term 'Fifth Amendment' in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.") The Supreme Court's statement in Quinn is even more true today, as the Anderson court pointed out when it stated: "From television shows like 'Law & Order' to movies such as 'Guys and Dolls,' we are steeped in the culture that knows a person in custody has 'the right to remain silent.' Miranda is practically a household word. And surely, when a criminal defendant says, 'I plead the Fifth,' it doesn't take a trained linguist, a Ph.D., or a lawyer to know what he means." Anderson, 516 F.3d at 783.
However, even though the statement "I plead the Fifth" may be commonly understood to be synonymous with one's right to remain silent, we must still examine appellant's use of the statement to determine whether it was unambiguous at any point at which it was used under the totality of the circumstances of the interrogation in this case. See Kupferer, 408 S.W.3d at 489; Williams, 257 S.W.3d at 433. In the interrogation here, the detective warned appellant at the beginning of the interrogation that he had the right to remain silent. In the first part of the interrogation, appellant answered the detective's questions, and although his answers were brief, he did not indicate that he did not want to talk. He stated that he believed he had been arrested for reckless driving because he drove into a patrol car. He answered questions about where he had been for the past few days. When the detectives started asking about where appellant obtained the guns found in his possession, appellant answered some questions and then, when asked when he went to his friend Jimmy's house—the friend he had stated he would borrow guns from if he were to do so—he stated "I plead the Fifth." At that point, we conclude that the totality of the circumstances were such that appellant's statement was ambiguous, as he had been answering questions up to that point and may have been expressing a desire to remain silent only as to the one question just posed to him. Further circumstances support that possibility because shortly before appellant stated "I plead the Fifth," one of the detectives stated, "[I]f you don't want to tell me something, if you don't want to like snitch or get somebody in trouble, just say, hey, I'm not going to tell you that. That's fine." Thus, appellant may have been trying to do what the detective suggested and simply not discuss the subject of that particular question. We also note that shortly before appellant first stated, "I plead the Fifth," he told the detectives that he wanted to "keep talking" when they asked him if he wanted to keep talking or take a break. Given the totality of the circumstances up to that point, we conclude that appellant's first iteration of "I plead the Fifth" was ambiguous. See Williams, 257 S.W.3d at 433 ("Ambiguity exists when the suspect's statement is subject to more than one reasonable interpretation under the circumstances.")
After appellant stated "I plead the Fifth," the detective clarified the statement, as he is permitted to do when a statement is ambiguous, by asking, "When you say you plead the Fifth, you mean you just don't want to answer that question? Is that what you're saying?" Appellant answered in the affirmative, stating, "That damn right." The detectives then continued questioning appellant, and appellant answered questions for some time without indicating a desire to stop. The questions were mainly general and aimed at where and with whom appellant had been in the previous days. At a later point when the detectives tried to establish where appellant was on the night of the murder, appellant did not respond to a specific question and then abruptly changed from sitting forward in his chair to leaning back against the wall behind him and rubbing his head. One of the detectives asked a similar version of the previous question, and appellant, continuing to lean back and rub his head, stated, "I plead the Fifth."
Given appellant's earlier statement, "I plead the Fifth" and the detective's clarification of that statement, we conclude that this second statement is also ambiguous in that it is not clear whether appellant wanted to remain silent only as to the specific questions posed to him at that moment or as to all further questions. However, at that point, the detective posed another question about appellant's whereabouts on the night of the murder, and appellant continued leaning back against the wall, rubbing his head, and once again stated, "I plead the Fifth." Taking into account the totality of the circumstances—including appellant's pronounced change in body language; his reiteration of the statement "I plead the Fifth" after stating it just a few questions earlier and after not responding to the questions posed to him during that time frame; and the well-established concept that the phrase "I plead the Fifth" is synonymous with invoking one's right to remain silent—we conclude that appellant unambiguously invoked his right to remain silent the third time he stated, "I plead the Fifth," and that the detectives should have ended the interrogation at that point. See Miranda, 384 U.S. at 473-74 ("If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."); Anderson, 516 F.3d at 787 ("Nothing was ambiguous about the statement 'I plead the Fifth.'"); see also Ramos, 245 S.W.3d at 418-19 (defendant's statement that he "didn't want to talk to [the detective]" during interrogation was "unambiguous, unequivocal, and unqualified assertion of his right to remain silent"); Mayberry v. State, No. 04-12-00704-CR, 2013 WL 6672488, *3 (Tex. App.—San Antonio Dec. 18, 2013, no pet.) (mem. op., not designated for publication) (defendant's statement during interrogation that "[he didn't] want to talk about this no more" was unambiguous invocation of right to remain silent that required police to scrupulously honor it).
Having concluded that appellant unambiguously invoked his right to remain silent, we next determine whether the detectives "scrupulously honored" his invocation. See Michigan v. Mosley, 423 U.S. 96, 104 (1975) (admissibility of statements obtained after suspect invokes right to remain silent depends under Miranda on whether suspect's right to cut off questioning was scrupulously honored); Miranda, 384 U.S. at 473-74 (interrogation must cease when suspect invokes right to remain silent). The invocation of one's right to remain silent does not create "a per se proscription of indefinite duration" against further questioning. Mosley, 423 U.S. at 102-03. Rather, whether the resumption of questioning is consistent with scrupulously honoring the invocation of the right to remain silent depends on the unique circumstances of each case and includes the following factors: (1) whether the suspect was informed of his right to remain silent before the initial questioning; (2) whether the suspect was informed of his right to remain silent before the subsequent questioning; (3) the length of time between initial questioning and subsequent questioning; (4) whether the subsequent questioning focused on a different crime; and (5) whether police scrupulously honored the suspect's initial invocation of the right to remain silent. See Cole v. State, No. AP-76703, 2014 WL 2807710, at *21 (Tex. Crim. App. June 18, 2014) (not designated for publication), cert. denied, 135 S. Ct. 1154 (2015); Mosley, 423 U.S. at 104-05.
Here, the only factor weighing in favor of a conclusion that the detectives scrupulously honored appellant's invocation of his right to remain silent is the first factor—that the detectives informed him of his right to remain silent before the initial questioning. The second factor—whether detectives informed appellant of his rights again before continuing the interrogation—weighs against the State because appellant was not given a fresh set of Miranda warnings after he invoked his right to remain silent. The third factor—the length of time between the initial questioning and subsequent questioning—weighs against the State because there was no time between the invocation and the renewed questioning. The fourth factor—whether subsequent questioning focused on a different crime—weighs against the State because the detectives continued after the invocation with the same line of questioning they had been pursuing before the invocation, a line of questioning that ultimately attempted to confirm details leading up to and surrounding the murder of Ervin. Specifically, before the invocation, the detectives focused their questioning on where appellant was on the night Ervin was murdered; after the invocation, they briefly asked him if he knew where he currently was, and then they questioned him about borrowing his cousin's car around the time of Ervin's murder and about what the car looked like. The fifth factor— whether the detectives scrupulously honored appellant's invocation of his right to remain silent—also weighs against the State because the detectives did not stop the questioning after the invocation. Based on the record in this case, we conclude that appellant's right to remain silent was not scrupulously honored and that the trial court therefore erred in denying appellant's motion to suppress to the extent that the motion sought to suppress statements appellant made after the third time he stated, "I plead the Fifth."
Although we find error below, we must next conduct a harm analysis. The violation of appellant's Fifth Amendment right to remain silent is constitutional error subject to the harm analysis set forth in Texas Rule of Appellate Procedure 44.2(a). See Ramos, 245 S.W.3d at 419; Rodriguez-Flores v. State, 351 S.W.3d 612, 630 n. 26 (Tex. App.—Austin 2011, pet. ref'd). Under Rule 44.2(a)'s harmless-error analysis, we must reverse the judgment unless, after reviewing the record as a whole, we determine "beyond a reasonable doubt that the error did not contribute to the conviction or punishment." See Tex. R. App. P. 44.2(a); Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007). Constitutional error does not contribute to the conviction or punishment if the jury's verdict would have been the same if the erroneous evidence had not been admitted. See Clay, 240 S.W.3d at 904; Nordstrom v. State, No. 03-12-00012-CR, 2014 WL 1910277, at *3 (Tex. App.—Austin May 8, 2014, no pet.) (mem. op., not designated for publication). Although not exclusive, factors to consider in the harm analysis include the nature of the error, whether it was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to it in the course of its deliberations. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011); Nordstrom, 2014 WL 1910277, at *4. Because appellant challenges the ruling on his motion to suppress with respect to both of his convictions—murder and aggravated robbery—we address each offense separately below.
(i) Murder Conviction
In the absence of the statements appellant made after he invoked his right to remain silent, the evidence of his guilt consisted of the following, which includes statements he made before the invocation: (1) a firearms expert tested the guns found in appellant's possession at the time of his arrest and testified that the bullet removed from Ervin by the medical examiner was fired by the revolver in appellant's possession; (2) the DNA analyst for the Austin Police Department who compared DNA samples taken from appellant and the revolver found in appellant's possession testified that appellant could not be excluded as a contributor to the profile from the revolver; (3) appellant admitted that he had recently borrowed the guns and had them in his possession because he "feared for [his] life . . . from the voices" and because "the voices [were] after [him];" (4) the first victim, Verzi, testified that the man who tried to shoot him was a black man in his late 20s or early 30s wearing a red t-shirt with graphics on it and dark cargo shorts; (5) appellant was 27 years old at the time of the attacks; (6) Verzi testified that the attack occurred on Sprinkle Cutoff Road at approximately 11:00 p.m. on the night of June 24, 2012; (7) the man who found Ervin unresponsive in his car testified that he found Ervin at approximately midnight on the night of June 24, 2012, in a car that had crashed into a fence on Sprinkle Cutoff Road, a road that was about a mile long; (8) Verzi testified that the attacker's car was a purple, late-1990s model Honda Accord; (9) appellant's cousin testified that he let appellant borrow his car the night of the attacks and that the car was a purple 1997 Honda Accord; (10) appellant's cousin testified that appellant was wearing dark-colored cargo shorts; Nike tennis shoes; a white, sleeveless shirt; and a red shirt thrown over his shoulder at the time that he borrowed the car; (11) the crime-scene specialist who reported to the scene after appellant crashed his car into a patrol car testified that he took photos of and collected items found in appellant's car, including a red t-shirt and a backpack containing a revolver, a semi-automatic pistol, and ammunition; (12) the police officer who transported appellant to the jail after his arrest testified that appellant was wearing Nike tennis shoes, black cargo shorts, and a white sleeveless shirt at the time of his arrest; and (13) appellant admitted that he had a red t-shirt in a bag in his possession at the time of his arrest, that the t-shirt was his, and that he had been wearing the same clothes for days.
After appellant invoked his right to remain silent, he made certain admissions regarding the incident with Verzi and the murder of Ervin. Specifically, when asked about why he confronted Verzi, he stated that he was "just trying to scare him." When asked why he did not murder Verzi, he stated, "There wasn't no bullets in the gun." In response to questions about the murder of Ervin, he stated the following: his "life was on the line" because of "the voices"; he "had to do it or [he] was going to die"; "the voices told [him] that if [he] didn't do it, [he] was going to die"; the voices told him to "find a victim"; he "[didn't] even remember" what color car Ervin had; he "was on PCP"; he "was told to flag [Ervin] down"' he "did it for Rock Nation"; he flagged Ervin down by "flashing [his] lights"; he used "the black revolver" because he "had to" because he "thought [he] was going to die"; and he "[didn't] even know" where he shot Ervin. When asked whether he "regret[ted] taking that man's life," he stated, "[Y]eah, I regret it," and when asked, "what happened to [Ervin] after you shot him," he answered, "The car went back in reverse." He further responded to the question "If [Ervin's car] wasn't on the road, where was it?" by saying, "Like in the woods."
Appellant argues that the statements he made that Ervin's car "went back in reverse" and ended up "in the woods" were particularly damning considering the homicide detective's testimony that the crime scene showed that Ervin's car went in reverse for about 50 feet "through the brush." Appellant further points out that the State emphasized these particular admissions during closing argument. However, considering the admissions appellant made before he invoked his right to remain silent in combination with all of the other evidence presented and set forth above—which taken together shows that the bullet removed from Ervin by the medical examiner was fired by one of the two guns in appellant's possession at the time of his arrest; that appellant admitted he recently obtained the guns because he feared "the voices"; that a man matching appellant's description, wearing the clothes appellant was wearing or in possession of at the time of his arrest and driving a car matching the description of the car appellant borrowed from his cousin on the night of the attacks, tried to shoot a man on the same road on which Ervin was found murdered approximately one hour later—we conclude beyond a reasonable doubt that the error in admitting the incriminating statements made by appellant after the invocation of his right to remain silent did not contribute to his conviction. See Tex. R. App. P. 44.2(a); Clay, 240 S.W.3d at 904.
We also conclude that the error was harmless with respect to appellant's punishment. In the punishment phase, the State sought to: (1) prove that appellant committed the aggravated-robbery offense; (2) provide testimony from a psychologist who made a "provisional diagnosis" that appellant had a personality disorder with antisocial traits and who believed that appellant was malingering with regard to his claim that he heard voices; (3) present proof of appellant's criminal history, including convictions for violation of a protective order, possession of a controlled substance, criminal trespass, engaging in a criminal act, attempted possession of a firearm by a felon, and driving while his license was suspended; and (4) provide testimony from Ervin's wife and brother to show the type of person Ervin was and the suffering that his murder caused his family. The only portions of appellant's interrogation that were referenced and published to the jury during the punishment phase were portions showing admissions appellant made regarding his aggravated-robbery charge, which were admissions made before appellant invoked his right to remain silent. The punishment range for appellant's conviction for first-degree murder was five years to ninety-nine years or life in prison. See Tex. Penal Code § 12.32. Thus, the jury could have assessed punishment at ninety-nine years or life in prison but instead chose a more lenient sentence of seventy-five years' imprisonment. Taking into consideration the extensive evidence of appellant's guilt detailed above; appellant's criminal history, including the aggravated-robbery offense committed just one day after the murder; the fact that the State did not reference any statements made during the erroneously admitted portion of appellant's interrogations; and the jury's decision not to assess the maximum punishment, we are satisfied beyond a reasonable doubt that the error in admitting the portion of the interrogation after appellant invoked his right to remain silent did not contribute to the jury's assessment of his punishment. See Snowden, 353 S.W.3d at 825-26; Clay, 240 S.W.3d at 905-06.
Although we find no harm based on the evidence in this record, we note that the detectives' failure to terminate the interrogation after appellant unambiguously invoked his right to remain silent was a violation of constitutional rights and could cause a reversal of a conviction in a case with a different set of facts than the ones presented here.
(ii) Aggravated-Robbery Conviction
In addition to appellant's murder charge, the State also indicted him for aggravated robbery, alleging that he stole a car from two people at gunpoint on the day after Ervin's murder. Appellant was driving the stolen car late in the evening on the day after Ervin's murder and drove the car into a patrol car, leading to his arrest. After appellant was convicted of murder, the State proceeded on the aggravated-robbery charge, and appellant ultimately entered into a plea agreement with the State in which he pleaded guilty to the charge in exchange for twenty years' imprisonment to be served concurrently with his murder sentence.
In his brief on appeal, appellant requests that both his murder and aggravated-robbery convictions be reversed due to the admission of statements he made after he invoked his right to remain silent. In the same interrogation detailed above, the detectives also questioned appellant about the stolen car. Some of that questioning was redacted from the video at trial, but an unredacted transcript of the interrogation was admitted into evidence at the hearing on appellant's motion to suppress. During the interrogation, appellant admitted, among other things, that he "took somebody['s] car and then backed into . . . a police car"; that there were two people in the car; that he fired a gun into the air before he took the car; and that he probably scared the people, causing them to get out of the car. However, in his brief on appeal, appellant does not provide any arguments or citations to the record or authority regarding how he was harmed with respect to his aggravated-robbery conviction. He provides argument and authority only as to how he was allegedly harmed with respect to his murder conviction. Further, our review of the record shows no harm with respect to the aggravated-robbery conviction—either to the guilty plea or to the punishment assessed as part of the plea—because all of the admissions appellant made regarding that charge occurred before he first invoked his right to remain silent. Accordingly, appellant has failed to show how the admission of statements made after he invoked his right to remain silent harmed him with respect to his aggravated-robbery conviction.
(iii) Conclusion Regarding Harm Analysis
Because appellant has shown no harm regarding either of his convictions from the admission of statements he made after he invoked his right to remain silent, we overrule his first issue.
B. Waiver of Miranda Rights
In his second issue, appellant contends that the trial court erred in denying his motion to suppress statements made in his interrogation because the State did not prove that appellant knowingly, intelligently, and voluntarily waived his Miranda rights. Appellant concedes that he "cannot point to any intimidation, coercion, or deception" on the part of the officers but that the evidence of the interrogation shows that he did not voluntarily waive his rights because he did not "willingly participate in the conversation," was "generally vague and evasive" in his responses, was not "eager to share information," and appeared "distracted and disinterested." He also asserts that the detective's several offers of help if appellant told the truth rendered the statement involuntary.
Article 38.22 of the code of criminal procedure sets forth procedural safeguards for securing the accused's privilege against self-incrimination in criminal proceedings. Joseph v. State, 309 S.W.3d 20, 23 (Tex. Crim. App. 2010) (citing Tex. Code Crim. Proc. art. 38.22). Included within those safeguards is the prohibition against admission of any oral statement that the accused made during custodial interrogation unless the statement was recorded and, before the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. Id. at 23-24; see Tex. Code Crim. Proc. art. 38.22, § 3. Article 38.22 warnings must advise the accused that:
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) 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; andTex. Code Crim. Proc. art. 38.22, § 2; Joseph, 309 S.W.3d at 24; see Miranda, 384 U.S. at 444. Admissibility of an accused's custodial-interrogation statement requires both the article 38.22 warnings and a waiver. See Joseph, 309 S.W.3d at 24.
(5) he has the right to terminate the interview at any time.
The State bears the burden of establishing a valid waiver of Miranda rights by a preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). The State does not have to prove that the defendant expressly waived his Miranda rights, only that he did so knowingly, intelligently, and voluntarily. Joseph, 309 S.W.3d at 24-25. The Texas Court of Criminal Appeals has provided that a valid relinquishment of Miranda rights:
must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.Id. at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). When demonstrating whether the "totality of the circumstances" demonstrates waiver, courts consider all the circumstances surrounding the interrogation, including the defendant's experience, background, and conduct. Id. A waiver of the right to remain silent can be expressly made, or it can be impliedly made by the defendant's conduct. See Berghuis v. Thompkins, 560 U.S. 370, 383-85 (2010); Joseph, 309 S.W.3d at 24-27.
An implied waiver of one's rights is established upon a showing that the accused: (1) was given the proper warnings; (2) understood the warnings and their consequences; and (3) made an uncoerced statement. See Hernandez v. State, 387 S.W.3d 881, 885 (Tex. App.—San Antonio 2012, no pet.); see also Berghuis, 560 U.S. at 385; Moran, 475 U.S. at 422-23; Leza, 351 S.W.3d at 349. "As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford." Berghuis, 560 U.S. at 385. "Although desirable, the general rule is that neither a written nor an oral express waiver is required." Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988). Simply making a statement is often the kind of conduct viewed as indicative of one's intention to waive his rights. See Berghuis, 560 U.S. at 385; Leza, 351 S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7.
In the video of the interrogation, the detective read appellant his rights and asked him if he understood them. Appellant said, "Uh-huh." After that, detectives began questioning appellant, and although appellant did not always answer, was not necessarily quick to answer when he did, and provided brief answers, he initially answered questions without indicating that he did not want to talk to the detectives. Appellant further indicated that he understood his rights and had previously waived them when he stated, "I plead the Fifth" and when he repeated the phrase twice later and ultimately invoked his right to remain silent. A defendant may change his mind after answering some questions and decide to refrain from answering any further questions. See Miranda, 384 U.S. at 445, 473-74.
Appellant points out that the detective made several "offers to help" appellant during the interrogation and argues that the offers constituted promises that rendered appellant's statement involuntary. "A promise made by a law enforcement officer may render a confession involuntary if it was positive, made or sanctioned by someone with apparent authority, was of some benefit to the defendant and was of such a character as would likely cause a person to speak untruthfully." Joseph, 309 S.W.3d at 26 n.8 (quoting Garcia v. State, 919 S.W.2d 370, 388 (Tex. Crim. App. 1994)). To determine if the promise of a benefit was likely to influence appellant to speak untruthfully, we must look to whether the circumstances of the promise made the defendant inclined to admit a crime he did not commit. Garcia, 919 S.W.2d at 388. We consider only the relevant remarks made by the detective before appellant's invocation of his right to remain silent, as we have already determined that the trial court erred in admitting the remainder of appellant's statement. Appellant refers to the following remarks made by the detective:
Tell me what's going on, man. I'd like to help you out . . . If you can, you know, let me in, kind of tell me what's going on, I can—I can help you out.
We can try to get you some medical help and to see some doctors and things like that for sure. I just need you to tell me what you're hearing and what medications you were on or anything you can remember.
[I]f you're honest with me, I'm going to help you as much as I can, okay?
So be honest with me so that I can help you, and tell me exactly, you know, how you took the car from them and what the weapon's all about and why you did that.
I really believe people have medical problems and conditions and things like that and I feel as part of my job is [sic] to help people that have problems. I wouldn't want to live like that hearing voices. I would want help. I can't help you unless you're honest with me about it.
I can give you my word, I'm going to try to help you if I can, but I just need you to tell me what—you know, your version of the story, okay?
I'm trying to help you, man, I really am. I want you to be honest with me if I'm going to be honest with you.
Are you hearing something right now, Darius? Huh? What are you hearing, man? I can't help you if you don't talk to me. What are you hearing?
In the above statements, the detective did not make any promises to appellant. Rather, he made general statements that he would "like" or "try" to help him and that he would "try" to get him medical help. Further, many of his statements were directed toward getting appellant to explain his mental-health condition, such as remarks that he could not help appellant with his condition unless appellant was honest about the voices he was hearing and the medications he took for his condition. In addition, the detective's comments were aimed at getting appellant to tell the truth, not at getting appellant to tell a particular story or version of events. For all of the above reasons, we conclude that appellant knowingly, intelligently, and voluntarily waived his Miranda rights from the point at which he indicated that he understood his rights until the point at which he invoked his right to remain silent. See Garcia, 919 S.W.2d at 388. (suspect's statement not rendered involuntary by detective's multiple comments that detective would do whatever he could to help suspect, that detective would talk to district attorney, and that suspect might be charged with lesser crime if he provided information about another suspect).
Regarding the admission of statements appellant made after his invocation of his right to remain silent, the admission of the statements is subject to a harmless-error analysis, see Ex parte Fierro, 934 S.W.2d 370, 374 (Tex. Crim. App. 1996); Zuliani v. State, 903 S.W.2d 812, 823-24 (Tex. App.—Austin 1995, pet. ref'd), and we have already determined above that the admission of the statements was harmless error for both of appellant's convictions. Accordingly, we overrule appellant's second issue.
Admissibility of Evidence
In appellant's third and fourth issues, he argues that the trial court erred in admitting (1) a detective's testimony regarding the way in which an innocent person would behave during an interrogation, and (2) a psychologist's testimony about whether appellant appeared to understand his Miranda rights in a video of the interrogation. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). A trial court abuses its discretion only if its determination "lies outside the zone of reasonable disagreement." Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Sandoval, 409 S.W.3d at 281. We consider the ruling in light of what was before the trial court at the time the ruling was made and uphold the trial court's decision if it lies within the zone of reasonable disagreement. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009); Sandoval, 409 S.W.3d at 281. If the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, we will uphold that decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Sandoval, 409 S.W.3d at 297. We will address each issue separately below.
A. Detective's Testimony
The challenged testimony from the detective who interrogated appellant is set forth below in an excerpt from the trial:
State: Are there certain ways you think from your training and experience you would expect somebody to act if they are being accused of a particular crime that they didn't do?
Detective: Yes.
State: Okay. What would that be that you are looking for?
Detective: Someone that's innocent-
Defense counsel: Judge, I think this is actually an inappropriate line of questioning.
Court: What's your objection?
Defense counsel: It's speculative, Judge. He's certainly not an expert of any type in the area.
Court: How is it not speculation?
State: Well, they are raising the issue of false confessions. I think based on his training and experience he's allowed to say what he has been trained upon to look for during the course of it.
Court: Overruled. You can answer the question.
Defense counsel: Judge, I haven't accused this man of taking a false confession. I've just asked questions about safeguarding the same. It's not [until] these accusations are made that this—
Court: It's overruled.
Defense counsel: Thank you, Judge.
Detective: We're taught that someone that's innocent is going to argue up one side and down the other nonstop and demand that they are innocent.
Appellant contends that the detective's testimony was "pure speculation" and did not satisfy the requirements for proper opinion testimony. We will assume without deciding that the trial court erred in admitting the challenged testimony because a review of the record shows that appellant did not suffer harm from the admission of the testimony. The erroneous admission of evidence is non-constitutional error subject to a harm analysis under rule 44.2(b) of the rules of appellate procedure. See Tex. R. App. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Any non-constitutional error that does not affect substantial rights must be disregarded. Tex. R. App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Coble, 330 S.W.3d at 280. A criminal conviction thus should not be overturned for non-constitutional error if we, after examining the record as a whole, have fair assurance that the error did not influence the fact-finder or had but a slight effect on the verdict. See id.
In making this determination, we review the record as a whole, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State's theory and any defensive theories, whether the State emphasized the error, closing arguments, and voir dire, if applicable. Id. at 355-56.
Regarding the detective's testimony of his training on how an innocent person would typically act during an interrogation, there was considerable other admitted testimony indicating that the detective believed appellant to be guilty. For example, after defense counsel cross-examined the detective about why he did not question more people or do further investigation in the case, the following exchange occurred between the State and the detective:
State: Everything else being equal, if you have 50 hours in a particular work week and you have five homicides to work on and at some point in time you find that there is sufficient evidence that you definitely located your suspect, do you start shifting resources over to the homicides that you believe are unsolved?Further, the detective also testified as follows about his perception that appellant was being deceptive during the interrogation:
Detective: Yes.
Defense counsel: Do you recall seeing, as I did, several times you asked [appellant] are you okay and are you with me, things of that ilk?
Detective: Yes.
Defense counsel: You had some concerns about that, did you not, sir?
Detective: I had concerns with the games he was playing in the interview room.
Defense counsel: You felt he was playing games with you?
Detective: I did.
Defense counsel: Okay. That's your opinion?
Detective: That's my opinion.
Given the admitted testimony from the detective stating that he suspends further investigation on a case when he believes he has sufficient evidence to prove that a suspect is the perpetrator of the crime and that he believed appellant was "playing games" with him during the interrogation, the jury could logically infer even without the challenged testimony that the detective believed appellant was guilty. See Sandoval, 409 S.W.3d at 295 (detective's testimony that he believed defendant was guilty and that victim was truthful was harmless because "one could logically assume [based on the detective forwarding the case to the district attorney's office] that he found [the victim] credible, her allegations truthful, and believed [the defendant] was guilty of committing this sexual assault"). Further, the defense questioned the detective numerous times during cross-examination regarding appellant being "out of it" during the interrogation, the detective's exposure to people with mental illness or substance-abuse issues, and appellant hearing voices and going to a hospital for the mentally ill in the past, thus thoroughly drawing the jury's attention to issues unique to appellant that may have caused appellant to act differently than a typical person being interrogated.
Regarding closing arguments, the State did not mention the challenged testimony during closing arguments. During arguments from the defense, defense counsel did not argue that appellant was innocent of the murder but rather argued that there was insufficient evidence that he was guilty because the first victim could not identify appellant after the offense occurred, appellant's fingerprints were not on the guns that were found in his possession, and the State did not test several items that could have eliminated doubt about his guilt. Defense counsel also argued that appellant did not voluntarily give his statement, either because of using drugs or being mentally ill, and that the jury should therefore not consider the statement. We also note that the jury members had the opportunity to review the video of the interrogation and make their own judgments about appellant's guilt or innocence.
In addition to the above factors, other evidence of appellant's guilt was extensive, as detailed above. Given all of the factors present in the record, we conclude that the admission of the detective's testimony about the way in which he believed an innocent person would behave during an interrogation was harmless. See Motilla, 78 S.W.3d at 355; Sandoval, 409 S.W.3d at 295. We therefore overrule appellant's third issue.
B. Psychologist's Testimony
The challenged testimony from the psychologist—who was enlisted by the State to review, among other things, the video of appellant's interrogation—is set forth below:
State: Did you feel Mr. Lovings based on the totality of the circumstances of watching the interview was able to understand his Miranda rights?
Defense counsel: Judge, that's improper. It calls for speculation on her part.Like the detective's testimony, appellant contends that the trial court erred in admitting the above testimony from the psychologist because the testimony "amounted to pure speculation." Appellant specifically challenges the psychologist's testimony under Rules 602 and 701 of the Texas Rules of Evidence, asserting that the psychologist's testimony does not satisfy the "personal knowledge requirement" of rule 602 or the "perception requirement" of rule 701.
Court: Overruled.
Defense counsel: Thank you, Judge.
Psychologist: Yes, I do.
However, the State designated the psychologist as an expert witness before trial, and appellant has not challenged her status as an expert. Both rules 602 and 701 specifically exclude expert testimony from their purview. See Tex. R. Evid. 602, 701. Rule 702 governs expert testimony and states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.Tex. R. Evid. 702. Appellant has not briefed the issue of whether the psychologist's testimony was proper under rule 702 and has therefore waived the issue. See Tex. R. App. P. 38.1(i) (briefs "must contain a succinct, clear, and accurate statement of the arguments made with appropriate citations to authorities and to the record"); Lucio v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011) (lack of argument or citation to authority waives error).
Even if appellant had not waived this argument, we conclude that any error in the admission of the testimony was harmless. Like the testimony from the detective, the jury members had the opportunity to watch the video of the interrogation themselves and weigh the testimony of the psychologist against their own interpretation of whether appellant seemed to understand his Miranda rights. In addition, the psychologist testified at length without objection about her opinion of appellant's mental stability during the interrogation. Specifically, she testified about her experience evaluating people who heard voices and then testified that based on that experience, she did not believe that appellant was hearing voices during the interrogation. She testified that "[i]n fact, there were many indications to the contrary" and then went on to describe, among other things, how his behavior was "very organized, linear, purposeful, and there were no signs that he was internally preoccupied or attending to something that was not there." She also testified about her review of the records from appellant's previous stay at a hospital that treated mental illness and explained that appellant was admitted to the hospital due to symptoms consistent with PCP-induced psychosis. She then went on to describe the differences between people who hear voices due to PCP and people who hear voices due to schizophrenia and reiterated that appellant showed organized thought. Given all of the psychologist's testimony supporting her opinion that appellant was clear-headed during the interrogation, the jurors could have logically inferred even without the challenged testimony that the psychologist believed that appellant understood his Miranda rights.
Further, during closing arguments, the State did not mention the psychologist's testimony, and defense counsel downplayed the psychologist's testimony and also used some of it in support of appellant's argument. Specifically, defense counsel argued that the portions of the psychologist's testimony about appellant's mental stability were weak because she made several observations about appellant based on the video but never actually met him and because she otherwise only reviewed medical records from his previous hospital visit. Defense counsel also pointed out that appellant could still have been under the influence of PCP during his interrogation based on the psychologist's estimate of the time it takes for PCP to wear off.
Finally, as detailed above, the extensive evidence of appellant's guilt—the matching physical, clothing, and car descriptions; the revolver in appellant's possession that matched the bullet that killed Ervin; the two attacks occurring within an hour of each other on the same one-mile road; and the admissions appellant made before he invoked his right to remain silent—further provide support for the harmlessness of the psychologist's testimony.
Considering the entire record, we conclude that the admission of the challenged testimony was harmless. See Motilla, 78 S.W.3d at 355; Sandoval, 409 S.W.3d at 295. Accordingly, we overrule appellant's fourth issue.
Jury Charge
In his fifth issue, appellant contends that the trial court erred in denying his request for an instruction in the jury charge that his statements of "I plead the Fifth" during his interrogation could not be considered as evidence of his guilt. In reviewing claims of jury-charge error, we first determine if there was error, and, if there was, we then decide whether the error caused sufficient harm to warrant a reversal. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Kuhn v. State, 393 S.W.3d 519, 524 (Tex. App.—Austin 2013, pet. ref'd). The amount of harm necessary to warrant a reversal depends on whether the defendant objected to the jury charge. Ngo, 175 S.W.3d at 743; Kuhn, 393 S.W.3d at 524. If the defendant preserved error with a timely objection in the trial court, the record need only show "some harm" to warrant a reversal. Ngo, 175 S.W.3d at 743; Kuhn, 393 S.W.3d at 524. If the defendant did not preserve error, we will reverse only if the record shows "egregious harm." Ngo, 175 S.W.3d at 743-44; Kuhn, 393 S.W.3d at 524.
Here, appellant preserved error on this issue and therefore need only show "some harm" in the event an error occurred because he requested the special instruction in writing. See Tex. Code Crim. Proc. art. 36.15. Reversal is required only if the error is calculated to injure appellant's rights. See Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013). The trial record must demonstrate that there is some actual harm and not just a theoretical complaint. Id. Assuming without deciding that the trial court erred in denying the requested instruction, we conclude that the error was harmless.
In assessing whether a defendant was harmed, we consider the totality of the record, including (1) the entire jury charge; (2) the state of the evidence, including the contested issues and the weight of probative evidence; (3) the argument of counsel; and (4) any other relevant information revealed by the record as a whole. See id. at 450; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). In reviewing the jury charge, we note that although the charge did not include an instruction regarding appellant's statements of "I plead the Fifth," the charge included an instruction regarding appellant's decision to remain silent at trial, stating that the jury was not to consider appellant's decision not to testify as a circumstance against him and was not to refer in any manner to the fact that appellant did not testify. The charge also included an instruction stating that the jury members were not to consider appellant's statement if they did not first determine that the statement was freely and voluntarily made. In addition, appellant did not object to the inclusion of his statements of "I plead the Fifth" at the time they were admitted, presumably because he wanted the statements considered as part of his argument that his statement was involuntary. In fact, defense counsel drew attention to appellant's statements of "I plead the Fifth" during closing arguments and within his argument about the voluntariness of appellant's overall statement as follows:
A person has to know what he's doing, has to knowingly and intelligently and voluntarily waive those rights.The State objected to defense counsel's contention that appellant's rights were explained to him "in the form of the Fifth," and the trial court overruled the objection, instructing the jury to "remember the evidence as it was set forth on the witness stand."
If you find that he is not, then you are to disregard that statement. Period. You are not to consider it for any reason. No reason at all.
When you watch that statement, and you can watch it as many times as you want to, reverse, rewind, you'll see his rights are explained to him in the form of the Fifth. So when he says he pleads the Fifth four different times, he's merely repeating what's been said to him. That's our contention.
The State then brought up appellant's "plead the Fifth" statements during closing arguments, and appellant argues that by doing so, the State "seemingly sought to penalize [a]ppellant for his invocation of the right to remain silent." In the State's argument regarding appellant's statements of "I plead the Fifth," the State first attempted to rebut defense counsel's argument that the detective read appellant his rights "in the form of the Fifth," and stated that "[t]here is nothing about the word 'fifth' in there." The State then went on to argue as follows:
[Appellant] said "fifth." "I plead the Fifth." Because he was in that [sic] control of that interview. When he didn't want to say something, he wouldn't. When he wanted to lead the then [sic] detective all over the place, he would lead him all over the place, despite the fact that they were giving him food twice, taking him to the bathroom, how nice they were to him in a murder investigation.The State's argument throughout trial and on appeal is that appellant selectively chose to answer and not answer questions on a question-by-question basis. Defense counsel argued that the detective read appellant his rights, telling him he could invoke the Fifth Amendment, and that appellant then invoked the Fifth Amendment. Defense counsel further argued that the detectives did not respect appellant's invocations and continued questioning him, thus lending support to the argument that appellant's statement was involuntary. Although the State made arguments regarding appellant's statements of "I plead the Fifth," it did so to counter the arguments already raised by defense counsel.
In addition to defense counsel's mention of appellant's statements of "I plead the Fifth" during closing argument, appellant also used the statements during trial in support of his theme that his statement was not given freely and voluntarily. Specifically, the defense cross-examined the detective at length regarding appellant's invocations, how the detective responded to the invocations, and why the detective believed he responded appropriately by continuing the interrogation rather than stopping it.
Finally, we consider the evidence of appellant's guilt, including evidence that appellant, his clothing, and his car all matched the descriptions given by the first victim; the revolver in appellant's possession matched the bullet that killed Ervin; the two attacks occurred within an hour of each other on the same one-mile road; and before appellant first invoked his right to remain silent, he admitted that he had two guns with him because he "feared for [his] life . . . from the voices," that the guns were in his bag in the car that he was driving at the time of this arrest, and that he had the two guns with him "because the voices [were] after [him]." Given all of the evidence in the record, we conclude that the trial court's denial of appellant's request for a no-adverse-inference instruction was harmless error. We therefore overrule appellant's fifth issue.
CONCLUSION
Having found no reversible error, we affirm the trial court's judgments of conviction.
/s/_________
Cindy Olson Bourland, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: March 17, 2016 Do Not Publish