Roy Joe Givens v. The State of Texas--Appeal from 346th District Court of El Paso County

Justia has modified the text of this case to protect the identity of the crime victim.

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

 

)

ROY JOE GIVENS, ) No. 08-03-00252-CR

)

Appellant, ) Appeal from

)

v. ) 346th District Court

)

THE STATE OF TEXAS, ) of El Paso County, Texas

)

Appellee. ) (TC# 930D10027)

 

O P I N I O N

 

Roy Joe Givens appeals his conviction of indecency with a child. A jury found Appellant guilty and assessed punishment at a fine of $10,000 and imprisonment for ten years. We affirm.

FACTUAL SUMMARY

In 1991, fifteen-year-old Y G and her mother, B G, attended St. Rafael Orthodox Church in El Paso, Texas. Appellant was introduced to them as Father Mathias and he identified himself as an Orthodox priest. Due to her interest in art, Appellant asked Y to work on the church bulletin. B and her friend Mona would drive Y to the church and wait in the car while she worked. Eventually, Appellant discouraged B from waiting in the car for Y. He said that she should trust him because he was a priest.

One evening in August of 1991, Y was at the church working on the bulletin when Appellant came out of his office and asked her to take off her shoes and sit on a cot with him. Y felt uneasy but complied with his request. Appellant looked at Y and told her that they had been chosen for a special mission from God. Placing his hands on hers and touching his feet to her feet, he remarked that their hands and feet were the same size. He explained that this was an indication that they were part of the same mission. He also showed her some rocks which he claimed were not from this earth. Appellant and Y then sat Indian style while holding hands and meditating. Appellant also prayed in a language which Y did not understand. Afterwards, Appellant asked Y what she had experienced. When she said that she had felt like she was being elevated, Appellant told her that it was a test of her faith and obedience and she had done well. Appellant instructed Y to lay down on the cot and she complied. He massaged her back, untucked her blouse and unbuttoned her bra while telling her not to fight him. Appellant fondled her breasts and then unbuttoned her jeans while massaging her stomach. When Appellant noticed that Y was shaking, he told her that she needed to be obedient. Y felt helpless and shocked that a man of God would do this to her. She remained frozen while Appellant touched her. When Appellant asked whether she was enjoying him touching her, she told him no. After awhile, Appellant got up and told her to that if she ever told anyone what he had done, his mission would be over. He also threatened Y and her family.

Y attended church less frequently with her mother and ceased working on the church bulletin. On several occasions, Appellant asked Y when she was going to return and he reminded her that she had to be obedient. B noticed that Y did not want to attend church but Y would not tell her why. In November of 1993, B attended a congregational meeting to discuss allegations made by young women against Appellant. Afterwards, Y told her mother that Appellant had molested her.

A grand jury indicted Appellant for indecency with a child. After being released on bond, Appellant fled the jurisdiction. When Appellant did not appear for his arraignment on February 15, 1994, the trial court issued a capias for his arrest. Appellant was not arrested until January 22, 2003. Lieutenant Kenneth Fryman, Jr., the operational director of the Illinois Secretary of State Police, received information regarding the fugitive warrant on January 21, 2003, and arrested Appellant at his residence in Springfield, Illinois.

ORAL STATEMENTS

In two related issues, Appellant contends that the trial court abused its discretion by admitting oral statements which Appellant made to Lt. Fryman immediately prior to his arrest in Illinois. Appellant argues in Issue One that the statements were inadmissible because they were obtained in violation of his right to counsel guaranteed by the Sixth Amendment and Article I, Section 10. In Issue Two, Appellant complains that Fryman did not first give him the Miranda // warnings.

Lt. Fryman s office received a request from the El Paso County Sheriff s Department to pick up a fugitive who was living in Springfield, Illinois. Fryman went to the residence where he spoke with Appellant, who identified himself as Roy Givens. In order to verify his identity as the same person named in the fugitive warrant, Fryman asked to see Appellant s identification. Appellant did not have a state identification card or other photo identification but he had a Social Security card which showed his name as Roy J. Givens. Still unsure if Appellant were the same person named in the warrant, Fryman asked Appellant if he had ever been to Texas. Appellant replied that he had not but Fryman noticed that his hands began to tremble. Fryman could tell that Appellant had been particularly affected by the question. Fryman then asked Appellant if he had a brother who lived in El Paso. Appellant told Fryman that his brother lived in Austin, and contrary to his statement that he had never been to Texas, he admitted that he had visited his brother. Fryman then told Appellant he had an arrest warrant from Texas for Roy J. Givens for the offense of indecency with a child and that he believed Appellant was the person named in the warrant. Fryman placed Appellant under arrest.

Right to Counsel

Appellant argues that the oral statements should be suppressed because Fryman interrogated him without his attorney present. The Sixth Amendment to the United States Constitution guarantees that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence. When an accused s Sixth Amendment right to counsel attaches to an offense for which adversarial proceedings have begun, he is entitled to the assistance of counsel at each critical stage of the prosecution, absent a valid waiver. Upton v. State, 853 S.W.2d 548, 553 (Tex.Crim.App. 1993). Not every event following the inception of adversarial judicial proceedings constitutes a critical stage so as to invoke the right to counsel under the Sixth Amendment. Green v. State, 872 S.W.2d 717, 720 (Tex.Crim.App. 1994). A pretrial stage is critical only if the accused requires aid in coping with legal problems or assistance in meeting his adversary. See Green, 872 S.W.2d at 720. Post-indictment interrogation is a critical stage. See Wesbrook v. State, 29 S.W.3d 103, 117 (Tex.Crim.App. 2000), citing Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 1408, 89 L. Ed. 2d 631 (1986); United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980); State v. Frye, 897 S.W.2d 324, 327 (Tex.Crim.App. 1995); Holloway v. State, 780 S.W.2d 787, 793 (Tex.Crim.App. 1989). But not all questioning constitutes interrogation. Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990). Questioning normally attendant to arrest and custody is not interrogation. McCambridge v. State, 712 S.W.2d 499, 505 (Tex.Crim.App. 1986), citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297 (1980). Identification questioning does not constitute interrogation because it is not designed to elicit an incriminating response, i.e., evidence tending to prove guilt. See DeClouette v. State, 699 S.W.2d 341, 344 (Tex.App.--Houston [14th Dist.] 1985, pet. ref d).

By his questions, Fryman sought to discover whether the Roy J. Givens standing before him was the same Roy J. Givens named in the fugitive warrant out of Texas. This questioning is not designed to elicit an incriminating response but rather is the type of questioning normally attendant to arrest. Consequently, it not interrogation. See DeClouette, 699 S.W.2d at 344 (where police officer, whose goal was to locate the defendant, went to an address and questioned an individual in an effort to determine whether the individual was really the defendant was not custodial interrogation because it was not designed to elicit an incriminating response). Because this type of routine questioning is not a critical stage of the proceedings, Appellant s right to counsel was not violated. Issue One is overruled.

Miranda Warnings

In Issue Two, Appellant complains that his statements were inadmissible because he was not given his Miranda warnings. At trial, Appellant objected to the admission of this evidence on the sole ground that his Sixth Amendment right to counsel was violated. That objection does not preserve his complaint on appeal regarding the absence of Miranda warnings. See Tex.R.App.P. 33.1; Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997)(To preserve error, a defendant s complaint on appeal must comport with the objection raised at trial.). Issue Two is overruled.

EXTRANEOUS OFFENSE

In Issues Three through Six, Appellant challenges the admission of evidence showing that he was not ordained or otherwise officially recognized as a member of the clergy. Characterizing this evidence as showing a bad act, namely, false impersonation as a member of the clergy, Appellant contends that the evidence is irrelevant and substantially more prejudicial than probative. He also asserts that he did not receive notice of the State s intent to introduce this extraneous bad act.

As a rule, an accused may not be tried for some collateral crime or for being a criminal generally. Tex.R.Evid. 404(b); Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App. 1983). In the face of a proper objection, evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person to establish that he acted accordingly regarding the alleged offense. Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App. 1990); Lazcano v. State, 836 S.W.2d 654, 657 (Tex.App.--El Paso 1992, pet. ref d). An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App. 1996). It is an offense that is extra, beyond, or foreign to the offense for which the party is on trial. Manning v. State, 114 S.W.3d 922, 926-27

(Tex.Crim.App. 2003).

Preservation of Error

The State first argues that Appellant failed to preserve his complaint for appellate review.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and the trial court ruled on the request, objection, or motion. Tex.R.App.P. 33.1(a)(1) and (2); Tucker v. State, 990 S.W.2d 261, 262 (Tex.Crim.App. 1999). A party must continue to object every time inadmissible evidence is offered. Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.--El Paso 1994, pet. ref d); Tex.R.App.P. 33.1. Error in the admission of evidence is cured when the same evidence is admitted elsewhere without objection. Ethington, 819 S.W.2d at 858; Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App. 1984). There are two exceptions to the requirement that a party object each and every time inadmissible evidence is offered: (1) a running objection, or (2) an objection made outside the presence of the jury to all the testimony he deemed objectionable as permitted by Rule 103(a)(1). See Ethington, 819 S.W.2d at 858-59 (discussing similar provision in former Rule 52(a) of Rules of Appellate Procedure); Gillum, 888 S.W.2d at 285.

Detective Victor Portillo was the State s first witness. After establishing that Portillo had conducted an investigation into Y s sexual abuse complaint against Appellant, the prosecutor asked Portillo whether he had conducted an investigation into the existence or nonexistence of credentials from any religious group. Appellant objected based on lack of Rule 404(b) notice, relevance, and Rule 403. Finding that Appellant s counsel had opened the door to admission of evidence about Appellant s credentials by referring in her opening statement to him as Father Mathias, the court overruled Appellant s objections. Appellant did not ask for a running objection to this testimony. The prosecutor repeated his question whether Portillo had made an inquiry into the Appellant s credentials and Portillo replied that he had. The prosecutor then asked whether Portillo had been able to confirm that Appellant had been ordained or otherwise granted authority from any religious group to act as a priest, bishop, or father of any kind. Portillo replied, As far as we knew he was not. Appellant did not object to the prosecutor s question or Portillo s answer. Appellant did not object to this testimony in a hearing held outside the presence of the jury nor did he obtain a running objection. Therefore, he was required to continuously object to the testimony he deemed inadmissible. Having failed to do so, Appellant did not preserve error. Issues Three, Four, Five, and Six are overruled. The judgment of the trial court is affirmed.

 

December 16, 2004

ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

 

(Do Not Publish)