Richard Elder v. The State of Texas--Appeal from 179th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-202-CR

&

No. 10-93-203-CR

RICHARD ELDER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 179th District Court

Harris County, Texas

Trial Court Nos. 591,137 & 591,136

O P I N I O N

Appellant Elder appeals his two convictions for aggravated robbery for which he received a sentence of life in prison, in each case, to run concurrently.

In cause number 10-93-203-CR Appellant was indicted for the February 1, 1991, aggravated robbery of Larry Lewis (at McDonald's), enhanced by a prior 1988 felony conviction.

In cause number 10-93-202-CR Appellant was indicted for the February 5, 1991, aggravated robbery of Amaechi Vdezbu (at Kentucky Fired Chicken), enhanced by a prior 1988 felony conviction.

In 10-93-203-CR Appellant pled not guilty but was found guilty by a jury. The State dismissed the enhancement and the trial judge sentenced Appellant to "life." In 10-93-202-CR Appellant waived a jury and pled guilty before the judge. The State dismissed the enhancement and Appellant was sentenced to "life" (the sentences to run concurrently). Appellant appeals both convictions on four identical points.

Point one: "The trial court erred in denying Appellant's motion to suppress the introduction of Appellant's videotaped statement to the police, due to the prosecutor's failure to provide defense counsel with a copy in a timely manner."

On March 6, 1991, Appellant walked into the robbery section of the Houston Police Department and said he wanted to confess to a robbery at McDonald's and a robbery at Kentucky Fried Chicken. He told Detective-Sergeant Steininger that he wanted to make a confession; he wanted to turn himself in; and that all the rest of his friends were in jail and he figured he was going to get caught next. He was given the required warnings both before and during a videotaped confession which was taken from him.

A suppression hearing was held on June 18, 1991, at which time Appellant's counsel moved to suppress the videotaped confession on the grounds that he had not been given a copy of same 20 days prior to trial as required by Tex. Code Crim. Proc. art.38.22, 3(a)(5). Appellant's counsel had been given a copy only on that day. The trial court denied the motion to suppress.

Trial of cause number 10-93-203-CR was on August 13, 1991. At trial the State offered the videotaped confession. Appellant objected to its admission on the grounds of the best evidence rule, and that the video was a copy and not the original. Sergeant Steininger then testified the copy was a true copy of the original. Appellant then renewed his objection: "There has been no showing of affirmative knowing and voluntary waiver of the rights by the defendant." The trial court overruled the objection and admitted the video confession.

Appellant's contention on appeal, i.e., that Appellant's counsel was not provided with a copy in a timely manner, fails to comport with Appellant's objections at trial and therefore presents nothing for review. Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103(a)(1); Crocker v. State, 573 S.W.2d 190, 205 (Tex. Crim. App. 1978). Moreover, Appellant's counsel had a copy of the video 56 days before the trial and any error in not furnishing counsel a copy prior to the June hearing is harmless. Tex. R. App. P. 81(a)(2). Point one in number 10-93-203-CR is overruled.

In number 10-93-202-CR Appellant waived a jury and pled guilty before the judge. The record before us does not reflect that the video confession was introduced into evidence or objected to in number 10-93-202-CR. Appellant's point one in number 10-93-202-CR is overruled.

Point two: "The trial court's failure to require the State to adhere to art. 38.22 3(a)(5), Tex. Code Crim. Proc., deprived Appellant to the reasonably effective assistance of counsel." Appellant's counsel had a copy of the video confession on June 18, 1991, and trial of this case was on August 13, 1991. Appellant seeks to transform an alleged trial court error into a claim of ineffective assistance of counsel. There is no evidence to support such claim.

To support a claim for ineffective assistance of counsel, Appellant must show that counsel's performance was deficient, that is, counsel's assistance was not reasonably effective. Strickland v. Washington, 466 U.S. 668; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Appellant has presented no evidence that counsel's assistance was ineffective. Point two is overruled in both cases, 10-93-203-CR and 10-93-202-CR.

Point three: "The trial court erred by failing to make written findings of fact and conclusions of law as to the voluntariness of Appellant's statement as required by art. 38.22(6), Tex. R. Crim. Proc.

This court, on June 15, 1994, took cognizance of the fact the trial court did not file findings of fact and conclusions of law relative to his motion to suppress, abated the appeal, and remanded the cause to the trial court for entry of findings of fact sufficient to comply with art. 38.22.

The trial court did file findings of fact and conclusions of law in both cases and they are before this court in a supplemental transcript. Elder v. State, No. 10-93-202-CR and No. 10-93-203-CR (Tex. App. Waco, June 15, 1994) (abatement order, not designated for publication). The asserted error having been remedied, point three becomes moot. Tex. R. App. P. 81(a). Point three is overruled in both cases, 10-93-203-CR and 10-93-202-CR.

Point four: "There is insufficient evidence to support the trial court's determination that Appellant knowingly, intelligently, and voluntarily waived his rights." Appellant first appeared at the police station and stated he wanted to confess to having committed some robberies. Sergeant Steininger located the offense reports and asked Appellant if he wanted to make a videotaped statement and Appellant replied that he did. Prior to giving his videotaped statement, Appellant was taken before a judge who gave him his statutory warnings. Sergeant Steininger then read Appellant his warnings and asked him if he understood his legal rights. Appellant stated that he did. Sergeant Steininger then asked Appellant if wanted to waive his rights and explained what "waived" meant. Appellant was not threatened, coerced, or promised anything in exchange for his statement.

The trial court found that Appellant freely and voluntarily made his videotaped statement without compulsion, persuasion, not under any drug or alcohol, and appeared to be of sound mind. As the trier of fact for the admissibility of evidence, the trial judge is the sole judge of the weight and credibility of the witnesses and in determining the issues in question, and is the trier of fact in a Jackson v. Denno hearing. Burdine v. State, 719 S.W.2d 309, 318 (Tex. Crim. App. 1986). Point four is overruled in cause numbers 10-93-203-CR and 10-93-202-CR.

The judgment in each case is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 27, 1995

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