Affirmed and Memorandum Opinion
filed August 26, 2003.
In The
Fourteenth
Court of Appeals
_______________
NO. 14-02-01220-CR
JEREMY KIM GUTIERREZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee
On Appeal from 185th District
Court
Harris County, Texas
Trial Court Cause No. 911,351
M E M O R A N D U M O P I N I O N
Appellant, Jeremy Gutierrez, was
convicted of felony theft. In this
appeal, he contends the trial court erred by (1) admitting an
accomplice=s videotaped statement; (2) admitting
his own videotaped confession made after he requested counsel; (3) admitting his
own videotaped confession because it was the product of undue influence; (4)
failing to include an instruction in the jury charge about his request for
counsel; and (5) failing to include an instruction in the jury charge about
undue influence. We affirm.
FACTS
Appellant was employed as a
pharmacist technician for the Methodist Hospital in Houston. He had access to expensive drugs. Appellant stole pharmaceutical drugs
from Methodist Hospital pharmacy and sold them to Christopher Felan, formerly a pharmacy technician at M.D. Anderson
Cancer Center. Federal agents and
Houston Police Department (HPD) officers convinced Felan to set up a drug transaction with appellant while
wearing a wire to record their conversation. During the transaction, appellant
requested $7,500 for drugs that were in the trunk of his car. The police arrested him
immediately.
After his arrest, officers took
appellant into an interview room and informed him of his rights. At the beginning of his videotaped
statement, the officers again informed appellant of his rights. They also informed him that he had a
right to have a lawyer present to advise him prior to and during
questioning. Appellant then
asked, ACan I have him present
now?@ Officer J.H. Davis with HPD responded
affirmatively, but told appellant that officers would terminate the interview,
put him back in his cell, and not speak to him further. Officer Davis then asked appellant if he
wanted an attorney present, and he replied, ANo.@ Officers assured appellant that he could
have an attorney present, but he stated that he would like to continue without
one. Appellant=s attorney arrived and entered the
interrogation room toward the end of appellant=s videotaped statement. Appellant conferred with his
attorney. Afterwards, the interview
continued in the presence of appellant=s attorney.
Appellant later testified that he
continued to give his statement because he was told that Aif he cooperated and told the truth
the judge would give him leniency.@ However, none of the officers present
during the interrogation testified they offered any such inducement. During the statement, appellant
confessed his involvement in the thefts.
In his pretrial motions to suppress,
appellant contended his statement had been made after he requested counsel and
was the product of undue influence.
The trial court denied the motions to suppress.
During trial, the State played Felan=s videotaped statement to the
jury. In the videotaped statement,
Felan explained the theft transaction, inculpating
appellant and himself. Appellant
objected on several grounds, including denial of the right to confrontation and
hearsay.
FELAN=S STATEMENT
In appellant=s first issue, he contends the trial
court erred in allowing Felan=s videotaped statement to be played
to the jury. He contends the video
was hearsay and he was denied his Sixth Amendment right to confrontation because
Felan was not present to testify. In Felan=s video, he confesses that he stole
drugs from the M.D. Anderson Cancer Center=s pharmacy and resold them. He also implicates three other
individuals, including appellant.
Felan explains in the video that in their
drug-stealing schemes, appellant would steal drugs from Methodist Hospital and
Felan would buy them and then sell them to a third
individual.
Appellant argues that admission of
Felan=s hearsay statement violates his
right to confrontation. Admission
of hearsay implicates the Confrontation Clause because the defendant has no
opportunity to confront the out-of-court declarant.
Ohio v. Roberts, 448 U.S. 56, 63
(1980). AThe central concern of the
Confrontation Clause is to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the context of an
adversary proceeding before the trier of
fact.@ Maryland v.
Craig, 497 U.S. 836, 845 (1990). A hearsay statement may, nonetheless, be
admitted in evidence if it bears sufficient indicia of reliability. Guidry v.
State, 9 S.W.3d 133, 149 (Tex. Crim. App.
1999). AA hearsay statement is per se
reliable under the Confrontation Clause if it falls within a >firmly rooted= exception to the hearsay
rule.@ Id.
Felan=s videotaped confession is a
statement against penal interest, which is an exception to the hearsay
rule. A statement against interest
includes a statement which, at the time of its making, so far tended to subject
the declarant to criminal liability that a reasonable
person in the declarant=s position would not have made the
statement unless believing it to be true.
Tex. R. Evid. 803(24). AA statement against penal interest is
a >firmly rooted= exception.@ Guidry, 9 S.W.3d at
150. Accordingly, admission
of Felan=s videotaped statement did not
violate appellant=s Sixth Amendment rights.
Nevertheless, appellant, relying on
Lilly v. Virginia, 527 U.S. 116, 133-34 (1999) (plurality opinion),
contends the videotaped statement did not fall within a Afirmly rooted@ exception because accomplice
confessions are unreliable.
However, an Aadmission against a co-defendant
declarant=s interest can be admissible against
the defendant so long as it is sufficiently against the declarant=s interest to be
reliable.@ Dewberry v.
State, 4 S.W.3d 735, 751 (Tex. Crim. App.
1999). In the present case,
Felan explained the theft transactions in his
statement. Throughout the
statement, Felan inculpated himself and three other
men, never trying to shift the blame to appellant. Because Felan=s statements implicated himself and
appellant equally, they were sufficiently self‑inculpatory to be reliable statements against penal
interest. See
Dewberry, 4 S.W.3d at 753.
To be admissible, a statement against
interest must also be sufficiently corroborated. Tex. R. Evid.
804(24).
AThe corroboration must be
sufficiently convincing to clearly indicate the trustworthiness of the
statement.@ Dewberry, 4
S.W.3d at 751. A trial court
should consider the following factors: (1) whether guilt of the declarant is inconsistent with guilt of the defendant, (2)
whether the declarant was situated in such a manner
that he might have committed the crime, (3) timing of the declaration, (4)
spontaneity of the declaration, (5) the relationship of the parties, and (6)
independent corroborative facts.
Id. The evidence at
trial showed Felan=s guilt was not inconsistent with
appellant=s guilt. Felan was
situated to help commit the thefts.
Further, his statements were corroborated by the fact that he
participated in a theft with appellant while wearing a wire. Additionally, Felan aided in appellant=s arrest. Because we find Felan=s statements reliable, and thus
within a firmly rooted hearsay exception, and because corroborating
circumstances indicate trustworthiness, the trial court did not err in admitting
Felan=s videotaped statement. Accordingly, we overrule
appellant=s first point of
error.
RIGHT TO
COUNSEL
In appellant=s second point of error, he contends
that he invoked his right to counsel by asking, ACan I have him present
now?@ Thus, all statements made thereafter
should have been excluded, and the trial court erred by denying his motion to
suppress. We review a ruling on a
motion to suppress under the standards set forth in Guzman v. State,
giving almost complete deference to a trial court=s determination of historical facts
and viewing the evidence in the light most favorable to the trial
court=s ruling. 955 S.W.2d 85, 87
(Tex. Crim. App. 1997). However, we review the trial
court=s application of the law to the facts
de novo. Id. at 89.
A request for counsel must be
Aunambiguous,@ meaning the suspect must
Aarticulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an
attorney.@ Davis v. United
States, 512 U.S. 452, 459 (1994). In Davis, the Court concluded
that the following statement by a suspect was an ambiguous articulation of a
desire for counsel: AMaybe I should talk to a
lawyer.@ Id. at
462. When asked for
clarification, appellant stated, ANo, I=m not asking for a
lawyer.@ Id. at
455. Appellant=s tentative query in this case is
somewhat similar.
After appellant was informed of his
right to counsel, he asked, ACan I have him present
now?@ Officer Davis then correctly answered
appellant by stating that he could have counsel at that time, however, the
questioning would end and appellant was to be returned to his cell. Davis then asked appellant if he wanted
counsel present and appellant responded, ANo.@ Appellant was assured by another officer
that he could have counsel present and he again refused.
Whether appellant invoked his right
to counsel is determined by reviewing the totality of the circumstances. Smith v. State,
779 S.W.2d 417, 425‑26 (Tex. Crim. App. 1989);
Collins v. State, 727 S.W.2d 565, 568 (Tex. Crim. App. 1987). After reviewing all of the dialogue
between appellant and the officers, we conclude that appellant=s ambiguous question about counsel
was followed by his unambiguous rejection of an attorney=s presence during the interview. Dinkins v.
State, 894 S.W.2d 330, 351 (Tex. Crim. App.
1995). Accordingly, we
overrule appellant=s second point of error.
INDUCED
CONFESSION
In appellant=s third point of error, he contends
the trial court erred in admitting his confession because it was improperly
induced by a promise of leniency.
In order to preserve a complaint for our review, a party must have
presented to the trial court a timely request, objection, or motion and state
the specific grounds for the desired ruling if they are not apparent from the
context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh=g). Also, the trial court must be given an
opportunity to rule expressly or implicitly, or must have refused to rule, and
the complaining party objected to the refusal. Taylor v.
State, 939 S.W.2d 148, 155 (Tex. Crim. App.
1996).
Appellant=s sole objection in his motion to
suppress was that he invoked his right to counsel. He did not argue in his motion to
suppress or in his supporting memorandum that police improperly induced his
confession. Accordingly, we hold
appellant did not properly preserve this issue for appellate review. See Tex. R. App. P. 33.1(a)(1). We
overrule appellant=s third point of error.
JURY
CHARGE
Appellant contends in his fourth and
fifth issues that the trial court erred by failing to include instructions in
the jury charge about undue influence and invoking the right to counsel. A defendant is entitled to an
instruction on the voluntariness of his confession
when the evidence presented at trial raises a factual issue as to whether he had
been warned of his rights and voluntarily waived them prior to making a
statement. Dinkins, 894 S.W.2d at 353‑54. It is then proper to include in the jury
charge instructions informing the jury that, if a reasonable doubt has been
raised as to whether a defendant knowingly, intelligently, and voluntarily
waived his rights before giving a confession, the jury must disregard the
confession and not consider it for any purpose. Bell v. State,
582 S.W.2d 800, 812 (Tex. Crim. App.
1979). In this case, the
court gave a general instruction on voluntariness
instead of one that was fact-specific pertaining to appellant=s claim of undue influence. The trial court also informed the jury
that they could disregard appellant=s statement if they found it was
taken in contravention of the law.
The court=s instructions adequately addressed
when a statement is made voluntarily and in accordance with a
defendant=s rights. Accordingly, we find the
court=s charge accurately and sufficiently
informed the jury regarding the applicable law. See Mendoza v. State, 88 S.W.3d
236, 240 (Tex. Crim. App. 2002) (defendant not
entitled to instruction regarding criteria for confessions when instruction on
voluntariness is adequate); Atkinson v. State,
923 S.W.2d 21, 23 (Tex. Crim. App. 1996). Therefore, we overrule
appellant=s fourth and fifth issues and affirm
the judgment of the trial court.
/s/
Charles W. Seymore
Justice
Judgment rendered and Memorandum
Opinion filed August 26, 2003.
Panel consists of Justices Anderson,
Seymore, and Guzman.
Do Not Publish C Tex. R. App. P.
47.2(b).