Gore, Justin Damien v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Opinion filed November 14, 2002

Affirmed and Opinion filed November 14, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-01135-CR

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JUSTIN DAMIEN GORE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 845,174

O P I N I O N

Appellant was found guilty of capital murder, and the court assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant complains that (1) the trial court erred in admitting appellant s oral statement, and (2) appellant=s counsel rendered ineffective assistance by failing to object to specific testimony. We affirm.

FACTUAL BACKGROUND

Appellant and four friends decided to rob an acquaintance s house to steal cash and narcotics. When they got to the house, the acquaintance and his mother were home. Because the mother of the acquaintance did not react as quickly as appellant wished, appellant shot her three times in the head and chest. She eventually died from the gunshot wounds. Appellant and his friends fled. After one of the friends confessed to the crime, police arrested appellant.

Appellant was interrogated in a room where a secret camera videotaped his confession. Later police discovered most of the videotape was inaudible, because appellant mumbled his answers and the microphone was improperly positioned to record his conversation with Officer Bellnoski. However, during the conversation, appellant admitted shooting the victim and revealed where he threw the murder weapon. After appellant took Officer Bellnoski to the point of the bayou where he threw the weapon, police divers were able to recover the gun.

At trial, appellant moved to suppress his confession and the inaudible videotape of it. The trial court allowed the testimony and admitted the videotaped confession.

DISCUSSION

Appellant raises three points of error. Combined in his first two issues, appellant contends the trial court should have suppressed his oral statements and his videotaped statement because they failed to comply with the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a) (Vernon Supp. 2002). In his last issue, appellant contends he received ineffective assistance of counsel because his attorney failed to object to Bellnoski=s testimony about the confession.

I. Admissibility of Oral Statements

We will first address appellant s two issues that his confession should have been suppressed. Appellant argues the videotape and any statements he made should be inadmissible, because his statements were recorded on a videotape that is inaudible. We disagree.

As a general rule, oral confessions are not admissible. See Guevara v. State, 985 S.W.3d 590, 593 (Tex. App.CHouston [14th Dist.] 1999, pet. ref d). This is because the statement is likely to be misunderstood, easily fabricated, and hard to contradict. See Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim. App. 1985) (citing Gay v. State, 2 Tex. App. 127 (1877); Riley v. State, 4 Tex. App. 538 (1878)).

Appellant contends that the videotape here fails to satisfy the requirement under Texas Code of Criminal Procedure article 38.22, section 3(a)(3) that a recorded statement be accurate.[1] Appellant argues that, because the videotape is inaudible, both the tape and appellant s confession are inadmissible. However, we do not reach appellant s argument that the videotape is inaudible, and therefore inaccurate and inadmissible under section 3(a).[2] As we explain below, independent of the police recording, appellant s confession is admissible under section 3(c) of the same article.

Article 38.22, section 3(c) provides that, if the defendant s custodial statement contains facts that are later found to be true, the statement is admissible at trial. See Tex. Code Crim. Proc.Ann. art. 38.22, ' 3(c); see also Nejnaoui v. State, 44 S.W.3d 111, 116 (Tex. App.CHouston [14th Dist.] 2001, pet. ref d) (holding oral statements that contain assertions of unknown facts are admissible without a recording). The applicable provision of the Code specifically states the following:

Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(c). The phrase Afound to be true,@ means something the police are unaware [of] at the time of the confession [and is] later, after the confession, found to be true. Romero v. State, 800 S.W.2d 539, 544B45 (Tex. Crim. App. 1990). Additionally, if any one of the assertions the defendant makes is found to be true and establishes guilt, then the oral statement is admissible in its entirety. See Baldree v. State, 784 S.W.2d 676, 684 (Tex. Crim. App. 1989); see also Marini v. State, 593 S.W.2d 709, 713 (Tex. Crim. App. 1980).

Here, at least two assertions of fact in appellant s confession were found to be true and tended to establish his guilt. First, before Bellnoski interviewed appellant, the police had not recovered the gun. According to Bellnoski, appellant revealed in his oral confession where he threw the gun. Appellant told Bellnoski it was laying in some water, and eventually took Bellnoski to the specific location where he threw the gun in the bayou. Other police officers did recover the gun where appellant described. Bellnoski testified at the suppression hearing that no one but the appellant gave him that information. Second, appellant also confessed to Bellnoski that he had initially thrown the gun out of a car and the gun landed near a catwalk. Appellant then got out of the car, picked up the gun, and threw it in the bayou. After revealing where the gun initially was thrown, a police officer located some rounds at the location appellant described.

Appellant s statements about the locations of the gun contained assertions of fact unknown by law enforcement but later corroborated. Only after the confession, when the police went to the locations the appellant described, were appellant=s statements found to be true. Because appellant=s confession contains facts that were found to be true and were conducive to establishing guilt, his entire oral statement, as testified to by Bellnoski, was properly deemed admissible. See Marini, 593 S.W.2d at 713.

Finally, even if the inaudible videotape should not have been admitted, any error was harmless. SeeGarcia v. State, 919 S.W.2d 370, 380 (Tex. Crim. App. 1994); see also Tex. R. App. P. 81(b)(2). The erroneous admission of evidence that is merely cumulative of properly admitted evidence is harmless. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214, 233 (Tex. App.CCorpus Christi 2001, no pet.). As explained above, Bellnoski could have testified and repeated appellant=s entire oral statement without the videotape. The videotape is cumulative evidence, and in fact is inaudible evidence. Since the same evidence was already before the jury in Bellnoski=s testimony, any error committed by the trial court admitting the videotape was harmless and cannot constitute reversible error.

For these reasons, we overrule appellant s arguments that his oral confession and the videotape should have been inadmissible.

II. Ineffective Assistance of Counsel

Next, we address appellant s final issueCthat he received ineffective assistance of counsel. Appellant complains that, because his trial attorney failed to object to Bellnoski s testimony, he received ineffective assistance of counsel. We disagree.

To show ineffective assistance of counsel, a defendant must show that (1) counsel=s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984); Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). When reviewing a claim of ineffective assistance of counsel, we must be highly deferential to trial counsel and presume counsel made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).

First, appellant must show his trial counsel=s performance fell below an objective standard. Appellant bears the burden to show counsel=s ineffectiveness by a preponderance of the evidence, and allegations of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813; Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000). Except in rare cases, a claim of ineffective assistance must be brought by application for writ of habeas corpus rather than direct appeal; this is to develop the facts and allow trial counsel to explain his actions. See Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000); see also Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.CHouston [1st Dist.] 1994, pet. ref d) (holding that generally, the trial court record is inadequate to properly evaluate ineffective assistance of counsel claim); Beck v. State, 976 S.W.2d 265, 266 (Tex. App.CAmarillo 1998, pet. ref d) (holding that there was an inadequate record for an ineffective assistance of counsel claim). Appellant argues his counsel=s failure to make one objection during trial amounts to ineffective assistance of counsel. Because of the lack of evidence in the record, we cannot conclude the attorney was deficient. See Grant v. State, 33 S.W.3d 875, 879B80 (Tex. App.CHouston [14th Dist.] 2000, pet. ref d). In this case, the record lacks evidence of the attorney s reasons for his actions and does not properly address the ineffective assistance of counsel argument. Without this evidence in the record, appellant fails the first part of the Strickland test.

Next, appellant did not prove the result of the proceeding would have been different had appellant s trial counsel objected. Appellant s attorney did not need to object to Bellnoski=s specific testimony to preserve error. Appellant s attorney objected to both the videotape and Bellnoski s testimony in the presubmission motion to suppress hearing. Because the trial court overruled appellant=s pretrial motion to suppress, the accused need not subsequently object to the admission of the same evidence at trial to preserve error as long as the pretrial motion to suppress is supported by evidence and the error presented on appeal is the same as was presented to the trial court. Renfro v. State, 958 S.W.2d 880, 883 (Tex. App.CTexarkana 1997, pet. ref d). Thus, any error in admitting the evidence and testimony was already preserved; appellant did not have to object to Bellnoski=s testimony again to preserve error. Because appellant did not meet either prong of the Strickland test, we overrule appellant s contention that his trial counsel was ineffective.

Therefore, we overrule all of appellant s issues and affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed November 14, 2002

Panel consists of Chief Justice Brister, Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] Section 3(a) provides the following:

No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1) an electronic recording, which may include motion picture, video tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, the operator was competent, and the recording is accurate and has not been altered;

(4) all voices on the recording are identified; and

(5) not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article.

Tex. Code Crim. Proc. Ann. art. 38.22, ' 3(a).

[2] Appellant also spends a majority of his brief arguing whether he knowingly, intelligently, and voluntarily waived his rights on the videotape. We have reviewed the tape; it shows that Officer Bellnoski did read appellant his Miranda rights. Appellant answered that he understood each right. The officer then asked appellant if he wished to cooperate with the investigation, after which appellant confessed. We also note that our decision is based on subsection 3(c) of article 38.22. That section states that the requirements of subsection (a)Cincluding the requirement that the Miranda warnings be given during the taped sessionCdo not apply when evidence is being admitted under subsection (c). Tex. Code Crim. Proc. Ann. art. 38.22, '3(c). Even under subsection (c), Miranda warnings must be given; they simply need not appear on the tape. Appellant has not claimed he was never Mirandized.