David Delce v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 26, 2023
• Docket: 07-22-00363-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00363-CR

DAVID DELCE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2018-414,636, Honorable John J. "Trey" McClendon III, Presiding

July 26, 2023 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Dispute regarding the propriety of David Delce’s conviction for aggravated robbery

appears before us once again. We addressed an earlier controversy in State v. Delce,

No. 07-21-00165-CR, 2022 Tex. App. LEXIS 4173 (Tex. App.—Amarillo June 17, 2022,

pet. ref’d) (mem. op., not designated for publication) (Delce I). It concerned whether the

trial court erred in granting a new trial due to defense counsel’s purported ineffectiveness.

We concluded that it did because the alleged mistake of counsel was not prejudicial. See

id. at *3 (explaining the need for both deficient performance and prejudice arising from it). As a result, we reversed the order granting new trial. That resulted in the instant appeal

from his final conviction.

His three issues are cousins to those involved in Delce I. We view them so given

that all are tied to an interview between Delce and an investigating officer. The interview

included questions about whether Delce would submit to a polygraph. In so asking, the

investigator attempted to explain the polygraph procedure. That prompted various

utterances from Delce. The trial court initially admitted into evidence a redacted version

of that interview containing those utterances but omitting reference to a polygraph. Upon

hearing the redaction, it then admitted a modification of it, i.e., second redaction. The

modification added context to Delce’s responses. That is, without the changes, one could

interpret them as possible admissions to his knowing one or more participants in the

aggravated robbery. With the changes, one could interpret his comments as merely

acknowledging how a polygraph works. Now, we are being told by appellant that the trial

court erred in overruling his subsequent request to admit other excerpts of the interview;

that opportunity was sought by Delce as a means of providing additional context to his

responses. We affirm.

Preliminarily, we note that the factual circumstances of the case were described

Delce I. They need not be reiterated here.

Next, we address whether the issues before us were preserved. See Wood v.

State, 560 S.W.3d 162, 165 n.8 (Tex. Crim. App. 2018) (noting that to be a preliminary

matter for the reviewing court to assess). As indicated, each issue before us concerns

the trial court’s refusal to admit additional excerpts of the interview. Delce asked for them,

which request the trial court denied. He then objected to the ruling and proffered

2 constitutional and non-constitutional grounds underlying the objection. Those grounds

underlie the issues before us. So, we have a request and a contemporaneous objection

to the trial court’s denial of it. That sufficed to preserve the issues for review. Burg v.

State, 592 S.W.3d 444, 448–49 (Tex. Crim. App. 2020) (stating that a contemporaneous

objection must be made to preserve error for appeal).

Having found preservation, we assume, arguendo, that error occurred in refusing

to admit the additional excerpts and jump to harm. Generally, it must exist before the

conviction may be reversed. And, the test used in assessing harm varies on whether the

error is of constitutional or non-constitutional magnitude. See Mercier v. State, 322

S.W.3d 258, 262 (Tex. Crim. App. 2010) (describing the different tests). And, we find

none for basically the same reasons we reversed the earlier order granting a new trial.

Delce argues that the tests for harm under Texas Rule of Appellate Procedure 44.1

and the prejudice integral to sustaining a claim that defense counsel rendered ineffective

assistance differ. Allegedly the former are more easily satisfied. Even if that were so, the

same circumstances on which we relied in Delce I show the absence of harm under Rule

44.2, as we now explain.

The State sought to convict Delce as a party to the aggravated robbery. It

portrayed him as “the inside man.” Furthermore, the manner in which his responses were

structured in the initial redacted version of the interview could be interpreted as indicating

he knew those who physically attacked the victims. The second redacted version was

intended to place the exchange in context and potentially dispel that interpretation. Delce

wanted more. So, he asked for inclusion of the additional information.

3 Yet, as we observed in Delce I, defense counsel conceded, during his closing

argument, that “they knew each other.” State v. Delce, 2022 Tex. App. LEXIS 4173, at

*5. So too did other evidence establish that appellant communicated with the attackers

via his cellphone shortly before the attack. Additionally, the modified or second redaction

“provided the missing context of Delce’s reply and clarified its substance.” Id. at *6.

Together the foregoing indicia cleanse the alleged error in question of harm. It did not

affect his substantial rights. See TEX. R. APP. P. 44.2(b) (stating that non-constitutional

errors must be disregarded if they fail to affect substantial rights). And, we are sure,

beyond reasonable doubt, that the error did not contribute to his conviction or punishment.

See TEX. R. APP. P. 44.2(a) (stating that in the case of constitutional error, we must

reverse unless we decide, beyond reasonable doubt, the error did not contribute to the

conviction or punishment). So irrespective of whether the test is that used when analyzing

the effectiveness of counsel or applying Rule 44.1, Delce was not harmed.

The three issues before us are overruled and we affirm the trial court’s judgment.

Brian Quinn Chief Justice

Do not publish.