Marvin Omar Espinal Zelaya v. The State of Texas--Appeal from 296th District Court of Collin County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00251-CR
______________________________
MARVIN OMAR ESPINAL ZELAYA,

A/K/A MARVIN OMAR ESPINAL, Appellant

 
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court No. 296-81926-04
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Marvin Omar Espinal (1) was convicted of three charges of armed robbery by a Collin County jury. (2) The cases were tried together, and Espinal now challenges all three convictions. (3) Espinal presents points of error alleging: (1) improper admission of extraneous offenses during the punishment hearing, (2) improper admission of his confession, (3) that his arrest was illegal and the evidence obtained therefrom inadmissible, and (4) the evidence is legally and factually insufficient. Having reviewed the record, we will affirm the trial court's judgment.

The Robberies

A string of robberies were executed in the Plano area in May and June 2004. In all, the victims said the perpetrators wore black or gray ski masks, spoke in Spanish or with a Spanish accent, and fled in a gold sports utility vehicle (S.U.V.). Espinal was charged in three indictments with three separate cases of armed robbery. The cases were tried to one jury.

Jaybinda Khanal testified he was working as a sales clerk May 11, 2004, at Sam's Beverage in Plano when a man wearing a mask entered and pointed a gun at him. A second man with a mask and gun entered, and the two men instructed Khanal to open the safe, which he was unable to do. Khanal thought one of the robbers was a "Mexican American." One of the robbers fired a gunshot into the store's floor. The robbers fled with about $400.00 in cash from Sam's Beverage and at least one carton of cigarettes. Michael Childress walked into the store during the robbery; he saw Khanal and two men in ski masks come out of the store's office, and Childress was ordered to the floor. Childress also said the robbers had masks and guns, and heard one speak with a Hispanic accent. Childress said one robber was stockier than Childress and as tall or a little shorter than Childress, who said he was about five foot ten or eleven. During the investigation of this robbery, police were supplied a surveillance video from a car dealership adjacent to Sam's Beverage. The video showed a vehicle matching a witness description of the possible get-away vehicle, a gold or tan S.U.V.

On June 3, 2004, two men in masks and wearing gloves stole about $6,000.00 from a One Stop gas station in Plano, according to Victor Romero, the store's cashier. One robber spoke broken English, the other, Spanish, and one asked for the money in Spanish. Romero testified the robbers left in a gold-colored S.U.V., possibly a Blazer, with tinted windows. Romero thought there might have been a third person in the vehicle, because it left so quickly. Romero estimated that one robber was about five foot seven and somewhat "big." The other robber was taller and thinner.

A robbery was conducted in similar fashion a week later, on June 10, 2004. Richard Ivey, manager of the Quick-Way Food Mart on Ohio Drive in Plano, testified that, around 3:15 p.m., just after an armored car had taken the store's deposits, a man in a ski mask entered the store with a gun. Ivey opened the store's safe to show the robber there was no money in it. The robber picked up a box with about $300.00 in quarters, but the box broke and the coins scattered on the floor. The store's assistant manager, Heide Jones, ran out of the store and flagged down a car. A second robber then entered the store, showed Ivey the robber's gun in his waistband, and spoke to the first robber. The two robbers then left the store, without taking any money. Ivey saw them leave the parking lot in a gold S.U.V. Ivey said one robber spoke in Spanish and the other had a Spanish accent. Jones said that, before she fled, she heard the first robber ask for the store's money and that he spoke with a Spanish accent. She described the two as one being about five foot seven or eight, "chubby, not skinny," and the other as being skinny.

When Jones ran to the parking lot of the Quick-Way Food Mart, she flagged down a car in the parking lot driven by Justin King. Jones got in his car, and King pulled to the front of the store to get the license plate number of the robbers' vehicle; the robbers' vehicle was backed up to the store and had no front license plate. King saw at least three, possibly four, men in masks, including one who ran into the store. King then saw three or four men in ski masks run out of the store, get into the gold Blazer, and leave. The S.U.V. in which Espinal and the other two suspects were sighted and arrested near was registered to Espinal. A surveillance camera at a business near the scene of the robbery showed an S.U.V. matching the witnesses' description of the get-away vehicle.

A week later, on June 17, 2004, Officer Ben Thurman of the Plano Police Department was on the lookout for the gold S.U.V. with three Hispanics, as had been described in the above robberies. Thurman saw a gold four-door Blazer, northbound on Coit Road, coming from Dallas to Plano, with three Hispanic males. Thurman observed that the vehicle did not have a front license plate. The officer followed the S.U.V., which crossed lanes and cut off the officer. Officers Thurman and Jake Wicker continued to follow the S.U.V. as the driver pulled into an Albertson's parking lot. The three Hispanic men left the S.U.V. and went into the store. More police officers gathered in and around the parking lot. After a time, the three Hispanic men left the store and came back to the S.U.V., and the officers converged on them. One officer moved his squad car to block any chance for escape. One of the suspects, Jose Cruz, walked away from the group, carrying a duffel bag. Cruz was detained, and all three men were arrested. In Cruz' duffel bag were ski masks, gloves, and three pistols. A subsequent DNA test showed Espinal's DNA inside one of the ski masks.

ESPINAL'S POINTS OF ERROR

Extraneous Offense Testimony

Espinal complains the trial court erred by admitting evidence of extraneous offenses allegedly committed by Espinal "without proof beyond a reasonable doubt." During the punishment phase of trial, the State had a translator read sections of Espinal's post-arrest interview to the jury. (4) In the portions of which Espinal complains, he confessed to the three robberies with which he was charged, as well as another robbery in Garland, Texas (for which Espinal does not appear to have been charged, at least not in the cases presented herein). During the interview, the police asked if Espinal had been involved in similar robberies in Garland and Addison. Espinal admitted participating in the Garland robbery, but said he could not remember participating in the Addison crime. It is these "offenses" of which Espinal complains. He posits that, when the officer asked if Espinal was involved, even though Espinal said he did not remember one and admitted the other, and the officer's questions were presented as testimony, this amounted to introduction of evidence of extraneous offenses.

Espinal did not preserve this issue for review. Before the translator's testimony at the guilt/innocence stage, Espinal posed an objection to about thirty lines of the interview, in which Espinal said he and his confederates were looking at the store where they were ultimately arrested, presumably as reconnaissance for another robbery. Espinal objected to this part of his statement as containing extraneous offenses; the objection was overruled, and Badillo read excerpts from the interview into evidence.

However, the testimony of which Espinal complains on appeal was presented during the punishment phase. There, the only objection made to any of the testimony from the translator, who read the transcript of Espinal's interview and statements, came after the translator related the officer's question asking if Espinal had been involved in another robbery May 22, involving "the same thing . . . same car, same description, everything." Espinal objected as follows:

[Defense Counsel]: Your Honor, at this point I'm going to object to this portion. There's no statement by the defendant in this portion of the transcript. It's only a conversation between the two officers, the statements with regard to --

 

THE COURT: Let me read this in context. Just a moment.

 

THE COURT: I'll overrule the objection. You may proceed.

 

This objection only addresses the lack of any statement by Espinal. There is no mention of extraneous offenses or of Rules 403 or 404(b). See Tex. R. Evid. 403, 404. Nor did Espinal request a limiting instruction. See Tex. R. Evid. 105. Finally, although Espinal does not complain of the trial court's charge to the jury, no objection or request was made for the charge to instruct the jury to only consider evidence of other bad acts or wrongs if it found beyond a reasonable doubt that Espinal was responsible.

To preserve error for appeal, a defendant must (1) object, (2) state the grounds with sufficient specificity, and (3) obtain an adverse ruling. Tex. R. App. P. 33.1; see Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). If a party fails to do this, error is not preserved. Further, a party must object each time the inadmissible evidence is offered or obtain a running objection. Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). Espinal failed to preserve any error for review; we overrule this point of error.

Admission of Espinal's Confession

Espinal complains, in his second point of error, that admission of statements he made to law enforcement officers violated his rights under the United States Constitution's Fifth Amendment and Article 38.23 of the Texas Code of Criminal Procedure. Following his arrest with the other two suspected robbers, Espinal was interviewed by police, including a Spanish-speaking officer who acted as translator. As the interview began, officers read Espinal his Miranda (5) rights, then elaborated on his rights against self-incrimination, to an attorney, and to end the interview. Espinal answered "yes" that he understood each of these rights. Then the following occurred:

OFFICER BADILLO: (6) - okay, um . . . okay. Since you have told me that you understand each of these rights that I have read to you, um, that before and during any statement that you give us [inaudible], you do it intelligent [sic], um, and you do it voluntarily, um, and you also waive the above rights. This means that those rights that are here that, of which I have explained them to you, that you do indeed understand but at the end you want to talk to us. [inaudible] Do you understand it the way I've explained?

MR. ESPINAL: Yes.

. . . .

OFFICER BADILLO: Um, uh, like I said, we want to talk with you for the reason that you are here, because you say that you don't know why you are here. We want to explain that to you. We want to explain it to you. And uh, we want uh, uh, um, um, to talk with you because we've already talked with um, um, with Jose and um, we talked with Luis and now we want to talk with you. So, um, knowing all that, do you, um, decide to talk to us? Do you want to?

MR. ESPINAL: No, I'll listen, okay?

 

OFFICER BADILLO: Yes? But, you decide, right? To, to, to be here to talk to us. If, if, if you want, talk. If you want.

MR. ESPINAL: [inaudible] listen to you now but I have to see.

OFFICER BADILLO: Okay. That's fine. And I'm not, and I'm not saying that you say anything to us, I just want to know if you understand all of this that I told you. Yes?

 

MR. ESPINAL: Yes.

 

The only objection to Espinal's statements given in the post-arrest interview is the one cited in the preceding section of this opinion. There was no motion to suppress the statement. There was no specific objection to the statement or how it was obtained. A specific and timely objection is required concerning the admissibility of evidence. (7) This is true even though the error may concern a constitutional right of the defendant. Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App. 2002); Gauldin v. State, 683 S.W.2d 411, 413 (Tex. Crim. App. 1984) (requirement of objection applies with equal force to alleged Miranda violations). Again, Espinal failed to preserve error.

Even if error had been properly preserved, we believe the confession would have been admissible. If a suspect wishes to remain silent, the police may not continue to question him or her in hopes of persuading the suspect to change his or her mind and give a statement. Miranda, 384 U.S. at 473-74. But a suspect's invocation of his or her rights must be unambiguous, and the police officer does not need to clarify ambiguous remarks. Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) (quoting Davis v. United States, 512 U.S. 452 (1994)). The statements which Espinal claims were invocations of his right not to make incriminating statements are not unambiguous. See Zervos v. State, 15 S.W.3d 146 (Tex. App.--Texarkana 2000, pet. ref'd). (8) In the overall context, Espinal's statements, "No, I'll listen, okay?" and that he would "listen to you now but I have to see" are not unambiguous invocations of one's right to remain silent. See Dowthitt, 931 S.W.2d at 257 ("I can't say more than that. I need to rest." Held not to be unambiguous invocation of right); Hargrove v. State, 162 S.W.3d 313, 319-20 (Tex. App.--Fort Worth 2005, pet. ref'd) ("Why should we go on because I'll be spinning my wheels. You're spinning your wheels." Held not unambiguous); Franks v. State, 90 S.W.3d 771, 786-87 (Tex. App.--Fort Worth 2002, no pet.) ("I don't want to talk anymore. I'm tired." Held not unambiguous invocation). A reasonable interpretation of Espinal's comments is that he had no statement to make, but would listen to the officers and decide whether to answer particular questions. We overrule Espinal's second point of error.

Legality of Arrest

Espinal complains, in his third point of error, that his arrest was illegal and, therefore, the evidence obtained as a result of the arrest was inadmissible. The officers arrested Espinal and the other two suspects in front of an Albertson's grocery store. Plano police had been on the lookout for the S.U.V. seen at the three robberies and observed on the security camera. As summarized above, Officer Thurman followed the vehicle and summoned assistance. After observing the three suspects for some time, and comparing their descriptions and that of their vehicle to those given at the three robbery scenes, officers arrested the three men as they returned to the vehicle from the grocery store. Jose Cruz tried to walk away from the other two. Cruz carried a duffel bag; when officers stopped Cruz, they found the duffel bag, ski masks, gloves, and three loaded pistols. Again, Espinal failed to preserve this issue for appellate review. He did not file a motion attacking the legality of his arrest and made no objection to the testimony of any of the law enforcement officers. When the evidence gathered as a result of the arrest was presented, no objection was made. When each item was offered, defense counsel affirmatively stated, "No objection." Once a defendant objects to the arrest as an illegal arrest, the burden shifts to the State to prove its legality. Garrison v. State, 726 S.W.2d 134, 137 (Tex. Crim. App. 1987). Here, Espinal never challenged the arrest or objected to the evidence obtained from the arrest. Nothing is preserved for review. See generally Wilson, 71 S.W.3d at 349; Reed v. State, 487 S.W.2d 78 (Tex. Crim. App. 1972).

Legal and Factual Sufficiency

Espinal's final two points of error complain of the legal and factual sufficiency of the evidence to support the jury's verdicts of guilt and findings that Espinal used or exhibited a deadly weapon during the offenses. Other than citing general caselaw for the standards of review for legal and factual sufficiency, Espinal presents no argument or authority in support of his assertion of error. See Tex. R. App. P. 38.1; McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001) (appellant failed to explain how factual record supported point of appeal; point of error waived for failing to adequately brief issue). Espinal does not address anything in the record or attempt to show how, for example, no rational trier of fact could have made the finding beyond a reasonable doubt, (9) or that the evidence supporting the verdict, considered alone, is too weak to support the jury's finding of guilt beyond a reasonable doubt; or, alternatively, that, after weighing the evidence supporting and contravening the conviction--the contrary evidence is strong enough that the State could not have met its burden of proof. (10) Espinal's statements that, "[t]here was no such properly admitted evidence or testimony before the jury sufficient for them to find Appellant guilty," and "when viewed in a neutral light, the evidence adduced at trial taken alone is too weak to support" the jury's verdict (in his attacks, respectively, on the legal and factual sufficiency of the evidence) are at most conclusory and do not offer any analysis or argument on which this Court can consider his contentions of error. The brief does not attempt to apply the legal standards for sufficiency of the evidence to the facts of this case. We conclude that the sufficiency of the evidence issues were inadequately briefed and present nothing for review. (11)

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: April 26, 2006

Date Decided: September 21, 2006

 

Do Not Publish

 

1. Appellant herein has a total of three appeals before us; and Appellant's single brief, arguing all three cases, refers to him as Marvin Omar Espinal. But, confusingly, Appellant's name is different in each of the three trial court judgments. In cause number 06-05-00251-CR--this case--the judgment refers to Appellant as Marvin Omar Espinal Zelaya, a/k/a Marvin Omar Espinal, and we refer to him as Espinal throughout this opinion. In cause number 06-05-00252-CR, the judgment refers to Appellant as Marvin Omar Espinal Zelaya, a/k/a Zelaya Marvin-Omar Espinal and we refer to him as Zelaya throughout that opinion. In cause number 06-05-00253-CR, the judgment refers to Appellant as Marvin Omar Espinal Zelaya, and we refer to him as Zelaya throughout that opinion.

2. This case was transferred to this Court by order of the Texas Supreme Court's docket equalization program.

3. See our opinions in cause numbers 06-05-00252-CR and 06-05-00253-CR.

4. Portions of Espinal's statement, in which he admitted participating in at least the three robberies for which he was on trial, were admitted into evidence during guilt/innocence. It appears the excerpts read during punishment were excluded at guilt/innocence by agreement of the parties.

5. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966).

6. Badillo was fluent in Spanish and acted as translator in the interview.

7. Failure to object in a timely and specific manner forfeits complaints about the admissibility of evidence. Unless the right involved is an absolute systemic one or one requiring an affirmative waiver, an objection must be presented to preserve error. See Saldano, 70 S.W.3d at 888; Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993).

8. When read his Miranda rights and presented a waiver-of-rights form to sign, Zervos signed the form. When the officer said that he had been told Zervos wanted to speak with the officer, Zervos said, "Nah, I just want to know what kind of trouble I'm in, that's all." Zervos, 15 S.W.3d at 154. Reviewing all of Zervos' comments (including those available on video tape), this Court held that, while some of his comments may have been ambiguous, it was "clear that Zervos intended to waive his rights and give the statement." Id.

9. See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005); Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (standard of review for legal sufficiency).

10. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004) (standard of proof for analysis of factual sufficiency).

11. Even if we found Espinal had adequately briefed this issue, we refer again to the evidence summarized above. The evidence, viewed in a neutral light, is not too weak to support the finding of guilt beyond a reasonable doubt; nor is there evidence contrary to the verdict strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex. Crim. App. 2004)).