JAMES LEE RATTLER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed May 25, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01020-CR
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JAMES LEE RATTLER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District
Dallas County, Texas
Trial Court Cause No. F06-68616-MT
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MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice Lang
                
 
        Appellant James Lee Rattler appeals the trial court's judgment convicting him of capital murder. The jury found him guilty, and the trial court assessed his punishment at imprisonment for life. Rattler raises four issues on appeal, arguing that (1) the trial court erred in overruling his motion to suppress, (2) the evidence was factually insufficient to prove that his videotaped statement was voluntary (3) the evidence was factually insufficient to prove capital murder, and (4) the trial court erred in denying his motion for mistrial. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Jeannie Thai owned a convenience store located in Dallas County. On July 23, 2006, Thai was fatally shot in the chest while she was working at the convenience store. Between 7:00 and 8:00 in the evening, Nathly Avina and her husband were driving by the convenience store when they noticed a “tall, skinny” man walking towards the store with a black shirt covering his face. Avina also noticed another man behind some bushes. In her police report, she described the “tall, skinny” man as 5 feet and 10 inches and 135 pounds, and the man in the bushes as being approximately five feet and 140 pounds.
        Monique Willis and Sonya Jiminez were driving by the store when they noticed two men running towards the Interstate 30 bridge. The taller man was carrying a cash register and trying to cover his face with a “do-rag.” Because Willis knew that Thai's convenience store was the only store in the area, she drove to the store to check on the owner. When she went into the store, she noticed Thai lying on the floor, gasping for air. Thai tried to speak, but could not say anything clearly.
         Michael Turnage and his wife were also driving by the store when they noticed something “unusual.” They noticed two men running away from the direction of the convenience store with the taller man carrying a cash register. Turnage's wife called 911. Turnage entered the store and walked to the counter. There, he saw Thai lying on the floor. Thai was not breathing and died before the police arrived.
        Danny Daon, Thai's son, arrived at the store after the police contacted him about the incident. When he arrived at the store, he noticed the cash register was gone. At trial, he identified the cash register as his mother's cash register. He also identified photographs of the convenience store as his mother's store.
        Dallas Police Detective Dan Lusty lead the investigation. Based on his investigation, he learned Qualland Swain might be involved in the shooting. When the police went to Swain's house to question him, they found the cash register from the convenience store behind his house. Swain voluntarily went to the police station, spoke to Lusty about the shooting, admitted he shot Thai, and said that Rattler was with him at the time of the shooting.
        As a result of the information from Swain about Rattler, police officer Norman Smith approached Rattler about the incident. According to Smith's testimony, when Smith approached Rattler, Rattler removed a 9mm handgun under his shirt and threw it under a car. Smith arrested Rattler and brought him to the police station.
        At the police station, Detective Lusty questioned Rattler about the shooting in a videotaped interview. At the beginning of the interview, Lusty read Rattler his Miranda rights. He believed Rattler understood the Miranda warnings and decided to waive his rights. Specifically, when Lusty asked Ratter if it would “be okay with you to waive your rights so we can talk about this and I can tell you what this is about,” Rattler replied, “yeah.” For the first hour of the interview, Rattler did not admit any involvement, but told Lusty he was tired of the questioning. Specifically, he stated, “It's because I'm tired. I'm tired. I'm tired of these questions. I'm ready to go to the house. I'm just tired.” Lusty did not believe that Rattler was terminating the interview and continued to question him. Thereafter, Rattler described his involvement in the shooting. He told Lusty that he was with Swain at the convenience store on the day of the shooting. According to Rattler's statement, Swain told Rattler about the plan to rob the store while they were outside the store. Rattler entered the store after he heard a gunshot. Then, he took the cash register.
        On August 8, 2006, Rattler was charged by indictment with capital murder. Rattler filed a motion to suppress the videotaped statement, contending the statement was not voluntary. After a hearing, the trial court denied the motion to suppress. Rattler requested findings of fact, but the trial court provided none. At trial, the State presented the videotaped statement and testimony that Rattler's fingerprints were on the stolen cash register and the gun recovered from Rattler was used in the shooting. After a three day jury trial, the jury convicted Rattler of capital murder, and the trial court sentenced him to life imprisonment. Rattled timely filed his notice of appeal. On February 19, 2010, we abated the appeal to allow the trial court to enter findings of fact and conclusions of law regarding its denial of the motion to suppress, which the trial court later filed. We affirm the trial court's judgment.
III. MOTION TO SUPPRESS
 
        In his first issue, Rattler argues the trial court erred when it denied his motion to suppress. He argues his statement was involuntary because he “attempted to discontinue questioning, but the detective refused to accept [his] attempts to cease the interview.” Rattler also argues that he did not understand the Miranda warnings because the evidence shows that he was “mentally retarded” and “very 'yes' orientated.” The State responds that the evidence shows that Rattler verbally waived his rights by responding affirmatively when Detective Lusty specifically asked him if he waived his rights. The State also argues the statement “I'm tired of these questions. I'm ready to go to the house. I'm just tired” did not invoke his rights.
A. Standard of Review
 
        A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. See St. George, 237 S.W.3d at 725; State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). An appellate court reviews the record to determine whether the trial court's ruling is supported by the record and correct under some theory of law applicable to the case. See St. George, 237 S.W.3d at 725; Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003).
B. Applicable Law
 
        Article 38.21 of the Texas Code of Criminal Procedure provides that a defendant's statement may be used against him “if it appears that the same was freely and voluntarily made without compulsion or persuasion.” See Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2010); Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). Article 38.22, section 2(b), specifies that no statement made by a defendant as a result of custodial interrogation may be admissible unless: (a) the written statement shows the defendant received certain admonishments; and (b) the defendant, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived those rights. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), (b). The determination of whether a statement is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. See Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1128 (2008); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).         A statement may be deemed “involuntary” under three different theories: (1) failure to comply with article 38.22; (2) failure to comply with the dictates of Miranda; or (3) failure to comply with due process or due course of law because the statement was not freely given as a result of coercion, improper influences, or incompetency. Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996). Ordinarily, proof of proper warnings preceding the written statement and a defendant's willingness to waive his rights following those warnings should suffice to meet the State's burden on the issue of voluntariness. Griffin v. State, 765 S.W.2d 422, 430 (Tex. Crim. App. 1989).
C. Application of Law to Facts
 
        After a hearing, the trial court denied Rattler's motion to suppress his statement. This Court abated the appeal, and the trial court made written findings of fact to support its conclusion that Rattler's statement was voluntary. See Tex. Code Crim. Proc. Ann. art. 38.22(6) (Vernon 2005) Those findings were, in part, that: (1) Detective Lusty warned Rattler of his Miranda rights before questioning him concerning the capital murder offense; (2) Detective Lusty asked Rattler if he understood his rights; (3) Rattler answered “yes” to the question about whether he understood each of his rights; (4) Rattler indicated that he would be willing to give up his rights and answer questions; (5) Rattler did not attempt to terminate the interview; (6) Rattler admitted his involvement in the case and consented to a buccal swab; and (7) Rattler can read and write and has a tenth grade education.
        After reviewing the record in accordance with the applicable standard, we conclude the trial court did not abuse its discretion because the evidence supports the trial court's findings. The record shows that Detective Lusty read Rattler his Miranda rights at the beginning of the interview. When the detective asked Rattler if he would waive his rights so that they could talk about the case, Rattler agreed to waive his rights by responding affirmatively. Moreover, Rattler's statement “I'm tired. I'm ready to go to the house” was not a waiver of his Miranda rights. See Hargrove v. State, 162 S.W.3d 313 (Tex. App.-Fort Worth 2005, pet ref'd) (concluding that defendant's statement “let's just terminate it” was not an unequivocal waiver of his rights); Franks v. State, 90 S.W.3d 771, 776 (Tex. App.-Fort Worth 2002, pet ref'd, untimely filed) (concluding that defendant's statement “ I don't want to talk, I'm tired” was ambiguous and not an invocation of his rights). Accordingly, we conclude the trial court did not err when it denied Rattler's motion to suppress and admitted his videotaped statement into evidence. Issue one is decided against him.
        IV. FACTUAL SUFFICIENCY
 
        In issues two and three, Rattler argues the evidence is factually insufficient. Specifically, Rattler contends that the “evidence was factually insufficient to show the defendant's videotaped statement to Detective Lusty were voluntary.” He argues that “because the evidence was based upon these statements, the evidence is, therefore, factually insufficient to show an offense.”
A. Standard of Review
 
        In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), cert. denied, 552 U.S. 920 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 552 U.S. 842 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
B. Applicable Law
 
        A person commits the offense of capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. § 19.03(a)(2) (Vernon 2003). A person commits robbery if, in the course of committing theft, he intentionally, knowingly, or recklessly causes bodily injury to another. See id. § 29.02(a)(1) (Vernon 2003). The State must prove a nexus between the murder and the theft, i.e., the murder occurred in order to facilitate the taking of the property. Cooper v. State, 67 S.W.3d 221, 223 (Tex. Crim. App. 2002); Ibanez v. State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986)         The Court of Criminal Appeals has referred to sections 7.01 and 7.02 of the Texas Penal Code as the “law of parties.” E.g., Montoya v. State, 810 S.W.2d 160, 165 (Tex. Crim. App. 1989). When a jury is charged on the law of parties, a person may be convicted as a party to an offense, if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Tex. Pen. Code Ann. § 7.01(a) (Vernon 2003). A person is a conspirator under the law of parties if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators. See id. at § 7.02(b) (Vernon 2003). If the felony actually committed should have been anticipated as a result of carrying out the conspiracy, then all conspirators are guilty of the felony actually committed, even if they had no intent to commit it. See id.
        It is well-settled in Texas that a person can be found guilty of capital murder as a conspiring party under section 7.02(b). E.g., Johnson v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992). If the evidence demonstrates that a defendant conspired with others to commit robbery and, during the robbery, one of the coconspirators commits capital murder, the defendant can be held criminally responsible for the capital murder if it was in furtherance of the conspiracy's unlawful purpose and should have been anticipated. See Longoria v. State, 154 S.W.3d 747, 755 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd).
C. Application of Law to Facts
 
         Rattler argues the evidence is factually insufficient to prove his videotaped statement was voluntary and to prove his conviction of capital murder beyond a reasonable doubt. Specifically, he asserts that because the “State's case was predicated almost entirely on the videotaped statement,” the State could not prove beyond a reasonable doubt the offense of capital murder. Also, Rattler argues the evidence is factually insufficient to prove the statement was voluntary because the evidence showed that Rattler was “mentally retarded” and “ very yes orientated.”
        Although Rattler complains about the factual sufficiency of the court's finding that the videotaped statement was voluntary, Rattler does not cite authority to support this type of factual sufficiency review. We have already concluded that the trial court did not abuse its discretion in denying the motion to suppress. Consequently, we do not address factual sufficiency of the trial court's ruling regarding the voluntariness of the statement. We move on to address factual sufficiency as to the conviction.
        In challenging the factual sufficiency of the evidence supporting his capital murder conviction, Rattler does not discuss any evidence aside from that contained in the videotaped statement. However, when conducting a factual sufficiency review, we consider all the evidence, both direct and circumstantial, whether properly or improperly admitted. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). In the videotaped statement, Rattler admitted to conspiring with Swain to rob Thai's convenience store. He described his involvement in the crime and admitted to taking the cash register. Rattler should have anticipated that Thai could have been shot because Swain entered the store with a gun. See Longoria v. State, 154 S.W.3d 747, 755 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd). Further, a number of witnesses were driving by the convenience store at the time of the robbery. These witnesses testified that they saw a short and tall man running from the store with a cash register. The description of the “short” man matched the physical appearance of Rattler. Specifically, one of these witnesses, Nathly Avina, testified that she saw two “suspicious” men enter the store and identified Rattler in a photographic line up as one of the men. Rattler's fingerprints were recovered from the cash register stolen in the robbery. Moreover, the gun recovered from Rattler was used in the shooting. After viewing the evidence in a neutral light, we conclude there is ample evidence from which a fact finder could rationally conclude beyond a reasonable doubt that Rattler was guilty of capital murder. We conclude the evidence is factually sufficient to support his conviction. We decide Rattler's second and third issues against him.
V. MOTION FOR MISTRIAL
 
        In his fourth and final issue, Rattler contends the trial court erred in failing to grant a mistrial when the prosecutor mentioned Rattler's prior conviction for theft during the cross examination of a defense witness. Rattler asserts that the questions about his previous theft conviction resulted in “harmful prejudice” and could not be cured by an instruction. The State responds that “any error regarding the prosecutor's mention of Appellant's misdemeanor theft was waived because Appellant failed to object elsewhere when the same evidence was mentioned.”
        It is well settled under Texas law that “an error in admission of evidence is cured when the same evidence comes in elsewhere without objection.” Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984). Consequently, the party “must object every time the alleged inadmissible evidence is offered” in order to preserve the complaint for review. Id. When not preserved, there is nothing for an appellate court to review. Id. 
        The record before us reflects that during cross examination of the defense's psychological expert, Dr. Flynn, Rattler requested a mistrial after the State elicited testimony regarding a prior theft conviction:
[Prosecutor]: Doctor, were you aware that the defendant was on juvenile probation for felony theft?
[Witness]: No, sir.
[Defense Counsel]: Judge, excuse me. Can we approach the bench?
[Prosecutor]: Right here. [Defense Counsel]: It was reduced to a misdemeanor by your department. That's the second time. I move for a mistrial.
[Court]: ...Your motion is denied.
        Prior to Dr. Flynn's testimony, Rattler's probation officer, Larry Echols, was called as a witness for the State. During direct examination, Echols testified about Rattler's previous theft conviction:
[Prosecutor]: What charges was [Rattler] actually convicted of as a juvenile?
[Echols]: UUMV and theft.
.
[Prosecution]: Was he convicted in a felony sense of that or was it reduced to a misdemeanor?
[Echols]: No, it was a felony.
[Prosecutor]: What was the other charge?
[Echols]: Theft, felony four, too, also.
[Prosecutor]: I think it was reduced down to a misdemeanor.
[Echols]: Correct.
        We conclude any error in admission was cured because the extraneous offense was introduced into evidence without objection. See Hudson, 675 S.W.2d at 511. By failing to object to Echol's testimony regarding the previous theft conviction, Rattler did not preserve the error for review. Id. We decide Rattler's final issue against him.
VI. CONCLUSION
 
        We conclude the trial court did not abuse its discretion in denying Rattler's motion to suppress. We also conclude the evidence is factually sufficient to support his conviction for capital murder. Rattler's four issues are decided against him. We affirm the trial court's judgment.                                         
                                                                  
                                                                  DOUGLAS S. LANG
                                                                  JUSTICE
Do Not Publish
Tex. R. App. P. 47
081020F.U05