IVA JOE SPEARS, III, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued August 30, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00691-CR
............................
IVA JOE SPEARS, III, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-54122-N
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OPINION
Before Justices Bridges, Moseley, and Richter
Opinion By Justice Bridges
        Appellant was convicted by a jury of the capital murder of Francisco Gonzalez and sentenced to life imprisonment. In two issues, appellant contends the trial court erred in admitting appellant's written confession into evidence and in admitting evidence of an extraneous offense.   See Footnote 1  We affirm the trial court's judgment.
Admission of Statement
 
        Appellant gave two written statements, one implicating himself in the robbery of a black, Chevrolet pickup truck from Roy McGee on June 19, 2005 and one implicating himself in the capital murder of Gonzalez on June 20, 2005. Appellant moved to suppress his statement regarding the capital murder, contending he was not informed of his rights under Miranda   See Footnote 2  and article 38.22 of the code of criminal procedure   See Footnote 3  prior to being questioned about the offense. In his first issue, appellant contends the trial court erred in denying the motion.
Standard of Review
 
        We review a trial court's ruling on a motion to suppress for an abuse of discretion under a bifurcated standard of review. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We give almost total deference to the trial court's rulings on questions of historical fact, but we review de novo a trial court's application of search and seizure law. Id. At a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
Applicable Facts
 
        Eduardo Ibarra, a detective with the DPD, was assigned to investigate Gonzalez's death. Appellant's name had been mentioned during the investigation of the robbery of McGee and the capital murder of Gonzalez. On June 26, 2005, Ibarra went to appellant's apartment and asked appellant if he would accompany Ibarra to police headquarters. Ibarra did not have a warrant for appellant's arrest, and appellant voluntarily agreed to come to headquarters.
        Ibarra began talking to appellant at approximately 5:30 p.m. He first obtained general background information from appellant and then told appellant he was conducting a criminal investigation. He read appellant his Miranda warnings one at a time. After each warning, Ibarra asked appellant if he understood the right. Appellant verbally indicated he understood each of his rights and initialed the warning card by each right. Appellant received the warnings at 5:45 p.m. prior to any questioning and waived his rights.
        Ibarra first questioned appellant about the robbery of McGee. Appellant was cooperative and appeared literate. At no time did appellant indicate he wanted a lawyer or did not want to speak to Ibarra. At approximately 6:50 p.m., appellant gave a statement about his participation in the McGee robbery, which Ibarra reduced to writing. Appellant initialized the warnings at the top of the statement and indicated Ibarra did not need to read the warnings to appellant again. Ibarra read the statement to appellant, and appellant made corrections to and signed the statement. Ibarra took a fifteen minute break, and appellant ate dinner.
        At approximately 7:40 p.m., Ibarra began talking to appellant about the capital murder of Gonzalez. Ibarra did not read appellant his Miranda rights again. In Ibarra's mind, the interrogation was an ongoing episode.
        At approximately 10:00 p.m., Ibarra took a break and Robert Ermatinger, a DPD detective, questioned appellant for approximately twenty minutes. Ermatinger did not read appellant his Miranda rights because he understood it had already been done. Appellant was polite and cooperative and never said he did not want to talk to Ermatinger or wanted a lawyer. Ermatinger did not threaten appellant or make any promises. Appellant asked Ermatinger what would happen to him if he admitted shooting Gonzalez. Ermatinger responded that appellant would probably go to prison. Appellant asked to speak to Ibarra.
        At approximately 10:40 p.m., appellant gave a statement to Ibarra implicating himself in Gonzalez's murder. Ibarra reduced the statement to writing. Appellant initialed the warnings at the top of the statement but told Ibarra that he did not have to read the warnings again. Ibarra read the statement to appellant. Again, appellant made corrections to and signed the statement.
        In the statement, appellant admitted that on the date of the murder, he and two other individuals were “riding around in the black Chevy truck.” They stopped at the club and approached Gonzalez and told him to “give up his money and the keys [to Gonzalez's truck].” Gonzalez then started to fight with them and grabbed one of appellant's companions. Gonzalez “wouldn't give [the money] up.” Appellant pulled a revolver from his front pocket, intending to shoot it into the air. Instead, the gun went off and hit Gonzalez. Appellant shot the gun two times. Appellant's companion then got away from Gonzalez and they got back into the truck and drove away. Appellant did not intend to shoot or harm Gonzalez. Appellant was just trying to “make a little money.”
        Appellant testified he was seventeen in June 2005 and had gone through the ninth grade. He is unable to read or write and told the police he could not read or write. However, he admitted he initialed and signed the warning card and that he could sign his name. He also admitted he had written, and was able to read, a statement he made at the Medlock Treatment Center. Appellant does not recall being read the warnings from the card, but admitted his initials are on the card.
        Appellant believed he was under arrest when he left his apartment. He told the police he did not commit the crime and wanted a lawyer. Appellant admitted he signed the first statement regarding the robbery. He then told the police he did not know anything about the murder and asked for a lawyer. He was told it would be better for him to make a statement. The police essentially told him that if he confessed, they would let him go. His statement about the robbery is true; however, his statement about the capital murder is not true.
        Analysis
 
        Appellant argues Jones v. State, 119 S.W.3d 766 (Tex. Crim. App. 2003) stands for the proposition that “Miranda requires fresh warnings for the separate offense of capital murder” and, because he did not receive warnings prior to the interrogation about the capital murder, the trial court erred in admitting his statement regarding the murder.
        The State may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda, 384 U.S. at 444; see Tex. Code Crim. Proc. Ann. art. 38.22. In Jones, the defendant was questioned twice about a murder on two separate days and was read his rights each time. The defendant gave a statement about the murder. Nine or ten days later, the Texas Rangers questioned the defendant about two different murders. The Rangers did not inform the defendant of his rights prior to the interrogation. After the defendant gave a statement about the two extraneous murders, the Rangers “went over the legal rights that appeared at the top of the written form” and had the defendant correct and sign the statement. The court of criminal appeals noted the “critical legal question is whether the overall activity of the police sufficiently comports with the requirements concerning the Miranda warnings to insulate the conduct and admissions against suppression.” Id. at 773 n. 13. After considering (1) the passage of time; (2) the interrogation was conducted by a different person; (3) the interrogation related to a different offense; and (4) the officer never asked the defendant if he had received any earlier warnings, whether he remembered those warnings, and whether he wished to waive or invoke them, the court determined the Miranda warnings given two days earlier by different police officers on a different offense were not effective as to the extraneous offenses. Id. at 776, 773 n.13.
        The court of criminal appeals revisited the issue in Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005) in which the defendant gave four statements in Louisiana about various offenses. The warnings given as to one of the statements failed to comply with article 38.22 and Miranda. However, applying the Jones factors, the court noted the interrogation session that produced the challenged statement began less than three hours after the session that produced a prior statement during which effective warnings had been given. Id. Further, although different officers conducted the questioning during each session and each session focused on a different set of crimes, the same officers were present during both sessions. Id. Finally, one officer reminded the defendant of the defendant's earlier waiver of rights; secured his acknowledgment that he had previously been given warnings; reminded the defendant of his right to remain silent, to terminate the interview, and to counsel; and secured the defendant's asset to continue the interview. Id. Therefore, the two statements were part of a single interview and the warnings given before the first statement were effective for purposes of Miranda and article 38.22. Id.
        In this case, appellant was read his rights prior to being questioned about the robbery. Appellant initialed the warning card, indicating he understood his rights and was waiving them. Prior to signing his statement regarding the robbery, Ibarra told appellant the same warnings that had been previously read to him were printed at the top of the statement. Appellant told Ibarra he did not need to read the warnings again and initialed the warnings on the statement. After a brief break, Ibarra began questioning appellant about the murder. In Ibarra's mind, the interrogation was one continuous episode.
        Other than twenty minutes of questioning by Ermatinger, only Ibarra questioned appellant. Appellant agreed to give a statement about the murder. Again, Ibarra told him the warnings were printed at the top of the statement and, again, appellant said Ibarra did not need to repeat those warnings. Appellant initialed the warnings on the statement, again indicating he understood and was waiving his rights.
        Under these circumstances, we conclude the two sessions were part of a single interview for the purpose of Miranda and article 38.22 and the warnings given prior to appellant's interrogation about the robbery were effective for the interrogation regarding the capital murder. See id.; Ex parte Bagley, 509 S.W.2d 332, 337 (Tex. Crim. App. 1974). Accordingly, we overrule appellant's first point of error.
Extraneous Offense
 
        In his second issue, appellant contends evidence of the extraneous robbery of McGee was inadmissible under Texas Rule of Evidence 404(b).   See Footnote 4  We disagree.
        We review a trial court's admission of extraneous offense evidence for an abuse of discretion. Robbins v. State, 88 S.W.3d 256, 259-60 (Tex. Crim. App. 2002). A trial court does not abuse its discretion as long as its decision to admit evidence is within the “zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
        Generally, evidence of extraneous offenses or prior wrongful acts is inadmissible. Tex. R. Evid. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004); Carter v. State, 145 S.W.3d 702, 707 (Tex. App.-Dallas 2004, pet. ref'd). However, evidence of extraneous offenses or other wrongful acts may be admissible to prove identity, intent, preparation, plan, or knowledge or to rebut a particular defensive theory. Tex. R. Evid. 404(b); Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Carter, 145 S.W.3d at 707. Further, same-transaction contextual evidence is admissible where “several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction.” Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 962 (2005) (quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1988)). An extraneous offense is admissible as same-transaction contextual evidence when it is “so intertwined with the State's proof of the charged crime that avoiding reference to it would make the State's case incomplete or difficult to understand.” Id. at 732. The jury is entitled to hear “all relevant surrounding facts and circumstances of the charged offense; an offense is not tried in a vacuum.” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000) (quoting Moreno v. State, 721 S.W.2d 295, 301 (Tex. Crim. App. 1986)).
        The record shows no witness to the events surrounding Gonzalez's shooting was able to identify the perpetrator. However, the individuals who killed Gonzalez were driving a black pickup truck that looked like the one depicted in pictures of McGee's truck. The police focused on appellant after Eric Phifer was arrested driving a black pickup truck that looked like the one in McGee's photographs and identified appellant as the individual who provided the keys to the truck. Appellant's fingerprints were then obtained from the truck and McGee was able to identify appellant as one of the individuals who stole his truck. Accordingly, the robbery of McGee provided the jury with the “surrounding facts and circumstances” that led the police to identify and arrest appellant. Therefore, it was admissible both to establish appellant's identity and as same-transaction contextual evidence. We overrule appellant's second issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060691F.U05
 
Footnote 1 Appellant has not challenged the legal or factual sufficiency of the evidence. Accordingly, we limit our review of the evidence and the proceedings in the trial court to that necessary to put appellant's complaint into context.
Footnote 2 Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote 3 Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005) (providing that no statement made as a result of a custodial interrogation shall be admissible against the accused in a criminal proceeding unless, among other things, prior to the giving of the statement, the statutory warnings are administered to the accused).
Footnote 4 In two sentences, appellant argues “[t]he extraneous offense was not relevant, as defined by Rule 401, Tex. R. Evid. To the extent it might have been relevant, it was inadmissible under the provisions of Rule 403. Tex. R. Evid.” Appellant provides no substantive argument or authority as to these points. Hence, appellant's argument under rules 401 and 403 is inadequately briefed and presents nothing for review. See Tex. R. App. P. 38.1(h); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995).