Opinion
NO. 14-15-00132-CR
01-12-2017
DARRYLE ROBERTSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court Harris County, Texas
Trial Court Cause No. 1277098
MEMORANDUM OPINION
Appellant Darryle Robertson was convicted of aggravated robbery and sentenced to 45 years' confinement in prison. Among other issues, appellant argues the trial court erred in failing to instruct the jury regarding the voluntariness of his statement. We conclude appellant was not entitled to a general voluntariness instruction because the voluntariness of his statement was not raised during trial. Appellant also argues the trial court erred in denying his motion to suppress a pretrial photo array identification. We overrule this issue because the photo array was not impermissibly suggestive. We therefore affirm.
BACKGROUND
On June 23, 2010, Guadalupe Hurtado was working as a cashier at a Family Dollar store when two men came in and asked the price of a red shirt. One man came to the counter with the shirt, while the other stood by the door. The man at the counter put the red shirt down, pulled out a gun, and demanded money. After Hurtado opened the cash register, the man reached over the counter and grabbed the money. Once both men left the store, Hurtado went outside to write down their vehicle's license plate number. Hurtado went back inside and called the police.
About two weeks later, the police showed Hurtado a photo array and she tentatively identified a suspect. Officers ruled out that individual, however, because he had been working during the robbery. Nine weeks after the robbery, the police showed Hurtado a second photo array. The second photo array contained photos of the appellant and five other men. Appellant's photo had a white background while the other five had darker backgrounds. The officer who prepared the photo array testified that the photo of appellant with the white background was the only photo he had of him at the time. The men in the photo array have similar hairstyles, facial features, and complexions. Three men are wearing dark green shirts, while appellant and two others are wearing white shirts. Hurtado positively identified appellant as the man who robbed the Family Dollar. She testified she was drawn to appellant's photo because of his eyes, nose, and skin complexion.
After the positive identification, police arrested and interviewed appellant. Appellant spoke with two different police officers, Officer Costin and Officer Olivarez. Officer Costin read appellant his Miranda warnings, and appellant indicated he understood each warning. Officer Costin then questioned appellant about extraneous robberies. Officer Costin left the room when he finished his interview. Officer Olivarez entered the room one minute later. Without reminding appellant of his rights, Officer Olivarez began interviewing appellant about the Family Dollar robbery. Appellant admitted his involvement in the robbery, although his statement had some minor inconsistencies compared to the surveillance video and Hurtado's testimony. For instance, he said he did not pull the gun out until after he told Hurtado to give him the money. Also, appellant stated that the gun went off, but there were no casings and the surveillance video does not reflect the gun was ever fired.
For purposes of trial, this portion of appellant's interview was edited out of the recording. The portion of the recording admitted into evidence contained only Officer Costin reading appellant his Miranda warnings and Officer Olivarez's interview.
Before trial, appellant filed a motion to suppress his statement. Defense counsel brought the pending motion to the trial court's attention prior to the start of trial. The trial court denied the motion without any argument from the defense or any comment from the court. Appellant also filed a motion to suppress the photo array identification because it was impermissibly suggestive. That motion was also denied.
At the charge conference, appellant requested that the jury charge include an instruction on the voluntariness of his statement. The court denied this request and stated that there was nothing in the record indicating that appellant had any mental disability. Appellant agreed with the court that nothing in the record supported any argument that his statement was involuntary because of a mental disability. The jury convicted appellant of aggravated robbery, and the trial court assessed punishment at 45 years' confinement. This appeal followed.
ANALYSIS
I. Appellant did not preserve his current argument for suppression of his statement.
In his first issue, appellant argues that it was error for the trial court to deny his motion to suppress his statement. Appellant argues the Miranda warnings were insufficient because Officer Costin read the warnings and questioned him about extraneous robberies before Officer Olivarez began interviewing him about the Family Dollar robbery, Officer Olivarez did not remind appellant of his rights, and appellant's behavior and mannerisms during the interrogation cast doubt on his mental state.
To preserve an issue for appellate review, a party must present to the trial court a timely request, objection, or motion stating with sufficient specificity the ground for the ruling desired. Tex. R. App. P. 33.1(a). A timely, specific objection is required so that opposing counsel has an opportunity to respond and the trial judge is informed of the basis of the objection and has an opportunity to rule. Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015). There are no technical considerations or forms of words required to preserve error for appeal, but a party must be specific enough for the judge to understand the complaint at the time when the trial court is in a proper position to do something about it. Resendez v. State, 306 S.W.3d 308, 312-13 (Tex. Crim. App. 2009). Even constitutional errors may be waived by a failure to complain timely. Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995).
A party's complaint on appeal should comport with the complaint made at trial. See Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009). It is improper for an appellate court to reverse a trial court's decision based on a legal theory not timely presented by the complaining party. Hailey v. State, 87 S.W.3d 118, 122 (Tex. Crim. App. 2002). A general or imprecise objection will not preserve error for appeal unless it is clear from the record that the legal basis for the objection was obvious to the court and opposing counsel. Vasquez v. State, 483 S.W.3d 550, 554 (Tex. Crim. App. 2016); Penton v. State, 489 S.W.3d 579, 580 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd).
In his motion to suppress, appellant broadly asserted that he did not knowingly, intelligently, or voluntarily waive his Miranda rights. He also asserted that admitting the statement would violate article 38.23 of the Texas Code of Criminal Procedure. See Tex. Code. Crim. Proc. Ann. art. 38.23 (West 2005) (providing that evidence obtained in violation of the Texas Constitution, Texas laws, the Constitution, or laws of the United States shall be excluded). Before trial, the court denied this motion without any argument or elaboration from appellant. Appellant never specified in his motion or in argument to the court why he did not knowingly, intelligently, or voluntarily waive his Miranda rights, nor did appellant state any legal theory to support his position—such as his current theory that the warnings were too far removed from the statement to be effective, particularly given appellant's mental state. It is not evident from the record that the trial court or the State was aware of the legal basis of the motion to suppress. Vasquez, 483 S.W.3d at 554; Penton, 489 S.W.3d at 580-81.
When the State initially offered appellant's statement through Officer Olivarez, appellant objected on the basis that the edited recording did not include the Miranda warnings from Officer Costin. The trial court sustained his objection. Later, the State offered a re-edited version of the recorded statement that included Officer Costin reading appellant the Miranda warnings in addition to Officer Olivarez's interview. Before that statement was admitted, defense counsel said, "at this time, I believe between Officer Olivarez and Officer Costin, I have no objection." But defense counsel re-urged the previous motion to suppress. The court overruled appellant's re-urged motion to suppress and admitted the statement. Appellant once again did not specify why appellant did not knowingly, intelligently, or voluntarily waive his Miranda rights before making his statement.
Appellant's motion to suppress was too general and imprecise to place the trial court on notice of the complaint he now asserts on appeal. Penton, 489 S.W.3d at 581. Moreover, appellant never orally expressed to the trial court the legal theory for why he did not knowingly, intelligently, or voluntarily waive his Miranda rights. Because his motion to suppress was not sufficiently specific to make the trial court aware of his complaint, appellant's suppression arguments on appeal are not preserved for our review. Id. We overrule appellant's first issue.
II. Appellant was not entitled to a voluntariness instruction because there was no evidence before the jury that his statement was involuntary.
In his second issue, appellant argues that the trial court erred when it refused to include in the jury charge a general voluntariness instruction pursuant to article 38.22, section 6 of the Texas Code of Criminal Procedure. We conclude that the trial court did not err because the voluntariness of appellant's statement was not raised during trial.
When reviewing a claim of charge error, we use a two-step process. First, we determine whether error actually exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if error exists, we determine whether it is harmful using the framework outlined in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009).
A trial judge has the absolute duty to prepare a jury charge that accurately sets out the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Oursbourn v. State, 259 S.W.3d 159, 179-80 (Tex. Crim. App. 2008). When a rule or statute requires an instruction under the particular circumstances before the court, that instruction is the law applicable to the case, and the trial court must instruct the jury on whatever the statute or rule requires. Oursbourn, 259 S.W.3d at 180.
A defendant's statement may be used as evidence against him if it appears the statement was freely and voluntarily made without compulsion or persuasion and certain requirements are followed. Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). Article 38.22, section 6 of the Texas Code of Criminal Procedure provides rules governing the admissibility of an accused's statements. Factual scenarios that can raise a claim of involuntariness under section 6 include youth, intoxication, illness, medication, mental incapacitation, or other disabilities that affect the defendant's state of mind. See Oursbourn, 259 S.W.3d at 172-73. These scenarios alone are usually not enough to render a statement involuntary, but are factors for a jury to consider when given a section 6 voluntariness instruction. Id. at 173. Situations involving police overreaching can also raise a claim of involuntariness under section 6, and indeed have been held to render statements involuntary under the due process clause. Id. at 170-72. Such situations include lengthy interrogations without food or sleep, holding a gun to a suspect's head to elicit a confession, and holding a suspect incommunicado with little food or medical attention. Id. at 170-71.
A defendant must "actually litigate" the voluntariness issue with the trial court and introduce some evidence before the jury to obtain a section 6 general voluntariness instruction. Morales v. State, 371 S.W.3d 576, 583 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) (citing Oursbourn, 259 S.W.3d at 175). Section 6 contemplates this sequence of events: (1) a party notifies the trial judge that there is an issue about the voluntariness of the statement, or the trial judge raises the issue on his own; (2) the trial judge holds a hearing outside the presence of the jury; (3) the trial judge decides whether the statement was voluntary; (4) if the trial judge decides that the statement was voluntary, it will be admitted, and the defendant may offer evidence before the jury suggesting that the statement was not in fact voluntary; (5) if such evidence is offered before the jury, the trial judge gives the jury a voluntariness instruction. Oursbourn, 259 S.W.3d at 175. A general voluntariness instruction must be given if a reasonable jury, based on the evidence presented at trial, could have found that the statement was not voluntarily made. Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007).
Appellant requested a voluntariness instruction at the charge conference, and argued to the court that "he didn't voluntarily waive his rights, he didn't understand his rights, they weren't explained to him properly." The court denied this request and added that there was nothing in the record indicating that appellant had any mental disability or was mentally ill. Appellant agreed with the court that the record did not support any claim that appellant had a mental disability or was mentally ill.
Appellant claims the voluntariness issue was raised at trial because (1) the officers "testified it was not their policy" to follow the "Suggestions Concerning Warnings" printed on the blue card that assist officers in giving Miranda rights; (2) defense counsel pointed out during closing arguments that appellant's nodding after each Miranda warning was read to him could be interpreted to mean he was "just acknowledging that I'm talking"; (3) the officers never inquired into the mental state or capacity of the appellant; (4) appellant's statement was not consistent with what actually occurred; and (5) Officer Olivarez made an impliedly coercive statement to appellant that "the man brought you here and the man can take you from here."
The Harris County District Attorney's Office issues a blue card to officers to assist them in reading Miranda warnings to people who are in custody. The blue card lists the statutory warnings that are to be given before interviewing. There are also "Suggestions Concerning Warnings" listed on the card that advise officers regarding proper administration of the required warnings.
We conclude the evidence to which appellant points in the trial record does not raise a voluntariness issue. See Oursbourn, 259 S.W.3d at 174-76. First, the officers never testified that it was not their policy to follow the "Suggestions Concerning Warnings" on the blue Miranda card, but rather testified they do not read those suggestions out loud to people they interview. Second, statements in closing argument regarding appellant's nodding are not evidence. See Gonzales v. State, 474 S.W.3d 345, 350 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (noting the State's reliance on statements made during closing arguments is flawed because "arguments of counsel are not evidence").
Third, no evidence was presented at trial relating to appellant's mental capacity. Whether the officers inquired into appellant's mental state is therefore irrelevant; the jury had no evidence from which it could have concluded that appellant's mental state affected the voluntariness of his statement.
Fourth, appellant did not present any evidence to the jury to show how minor inconsistencies in his statement raised an issue of voluntariness. Assuming appellant is suggesting the inconsistencies show that he was suffering from a mental disability, appellant conceded to the trial court that the record does not support that appellant had a mental disability or was suffering from a mental illness. Therefore, any minor inconsistencies do not raise an issue of voluntariness.
Fifth, Officer Olivarez's statement regarding "the man" came at the end of appellant's interview, after appellant had already admitted his involvement in the robbery. Therefore, even if this statement could be considered coercive, it could not have affected the voluntariness of appellant's statement. See Olivos v. State, No. 14-08-00660-CR, 2009 WL 5791030, at *4 (Tex. App.—Houston [14th Dist.] Feb. 9, 2010, no pet.) (mem. op., not designated for publication) (holding misrepresentations made to defendant did not affect voluntariness of his statement because defendant did not change his statement in response to the misrepresentations).
Because none of the record evidence to which appellant points suggested that his confession was not in fact voluntary, appellant's second issue is overruled.
III. The trial court did not err in denying appellant's motion to suppress the photo identification because the photo lineup was not impermissibly suggestive.
In his third issue, appellant argues the trial court erred when it denied his motion to suppress a photographic lineup. Appellant argues the photo array was impermissibly suggestive because appellant's photo had a white background, while the other photos had darker backgrounds.
Appellant properly preserved this complaint by objecting to the admissibility of the photo array in the trial court through his motion to suppress. The appellant did not timely object to Hurtado's in-court identification, however. This failure to object to the in-court identification waives any complaint regarding the in-court identification on appeal. See Perry v. State, 703 S.W.2d 668, 670, 673 (Tex. Crim. App. 1986). Therefore, we only consider appellant's arguments concerning the pretrial photo identification.
We review the denial of a motion to suppress by giving almost total deference to the trial court's determination of historical facts and reviewing de novo the trial court's application of the law to facts. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). A pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of the law. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Barley v. State, 906 S.W.2d 27, 32-33 (Tex. Crim. App. 1995). To determine the admissibility of a pretrial identification, we use a two-step process, asking (1) whether the pretrial procedure was impermissibly suggestive; and if so, (2) whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Santos v. State, 116 S.W.3d 447, 455 (Tex. App.—Houston [14th Dist.] 2003, pet. ref'd); see also Neil v. Biggers, 409 U.S. 188, 198 (1972). Appellant must prove both elements by clear and convincing evidence. Santos, 116 S.W.3d at 451.
The manner in which a photo array is shown or the content of the photo array itself may render a pretrial photo identification impermissibly suggestive. See Barley, 906 S.W.2d at 33. A lineup is considered unduly suggestive if other participants are greatly dissimilar in appearance from the suspect. Brown v. State, 29 S.W.3d 251, 254 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see also Ballah v. State, No. 14-10-00460-CR, 2012 WL 19653, at *3 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, pet. ref'd) (mem. op., not designated for publication) (discussing the suggestiveness of a lineup in a photographic lineup context). Minor discrepancies, however, will not render a lineup impermissibly suggestive. Brown, 29 S.W.3d at 254. The participants in a lineup do not need to be identical to satisfy the requirements of due process. Id.
Appellant complains that the pretrial identification procedure was impermissibly suggestive only because appellant's photo was the only one with a white background, while the other photos had darker backgrounds.
The Texas Court of Criminal Appeals has held that a photo array was not impermissibly suggestive when two photos appeared to be older and faded and one photo was "obviously taken in a different setting." Barley, 906 S.W.2d at 33; see also Ballah, 2012 WL 19653, at *3 (photo array was not impermissibly suggestive when some photographs were darker than others); U.S. v. Bautista, 23 F.3d 726, 731 (2d Cir. 1994) (photo array was not impermissibly suggestive when defendant's photo was brighter and somewhat more close-up than the others); cf. Mendiola v. State, 269 S.W.3d 144, 146 Tex. App.—Fort Worth 2008, no pet.) (photo array was impermissibly suggestive when defendant's photo was both larger and darker than the other photos). Although the Court of Criminal Appeals did not encourage the use of photographs so different in lighting and background, the court recognized that it might be necessary. Barley, 906 S.W.2d at 33. In this case, Officer Olivarez testified appellant's photo with the white background was the only photo he had of him at the time.
We conclude that appellant has not shown by clear and convincing evidence that the photo array was impermissibly suggestive. The individuals in the photos are all African-American males of similar age and are wearing similar clothing. Anderson v. State, 414 S.W.3d 251, 259 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd). Further, the photographic identification was properly administered. Officer Olivarez provided Hurtado with a witness admonition form that stated this "group of photos may or may not contain a photo of the person involved in the crime," that "hairstyles and facial hair may be easily changed," and "that photos may not always depict the true complexion of a person." Ballah, 2012 WL 19653, at *4. Moreover, Hurtado testified she was drawn to appellant's photo because of his eyes, nose, and skin complexion, and that nothing else drew her to his photo. See Barley, 906 S.W.2d at 33-34 (noting that even though photos had different backgrounds, "witnesses testified they had not noticed a difference, or if they had, it did not influence their identification").
Because we conclude the photo array was not impermissibly suggestive, we need not address the second part of the test. See Ballah, 2012 WL, at *4. Appellant's third issue is overruled.
CONCLUSION
Having overruled appellant's issues on appeal, we affirm the judgment of the trial court.
/s/ J. Brett Busby
Justice Panel consists of Justices Busby, Donovan, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).