Gutierrez, Jeremy Kim v. The State of Texas--Appeal from 185th District Court of Harris County

Affirmed and Memorandum Opinion filed August 26, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01220-CR

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JEREMY KIM GUTIERREZ, Appellant

V.

 THE STATE OF TEXAS, Appellee

On Appeal from 185th District Court

Harris County, Texas

 Trial Court Cause No. 911,351

M E M O R A N D U M O P I N I O N

Appellant, Jeremy Gutierrez, was convicted of felony theft. In this appeal, he contends the trial court erred by (1) admitting an accomplice=s videotaped statement; (2) admitting his own videotaped confession made after he requested counsel; (3) admitting his own videotaped confession because it was the product of undue influence; (4) failing to include an instruction in the jury charge about his request for counsel; and (5) failing to include an instruction in the jury charge about undue influence. We affirm.

FACTS

Appellant was employed as a pharmacist technician for the Methodist Hospital in Houston. He had access to expensive drugs. Appellant stole pharmaceutical drugs from Methodist Hospital pharmacy and sold them to Christopher Felan, formerly a pharmacy technician at M.D. Anderson Cancer Center. Federal agents and Houston Police Department (HPD) officers convinced Felan to set up a drug transaction with appellant while wearing a wire to record their conversation. During the transaction, appellant requested $7,500 for drugs that were in the trunk of his car. The police arrested him immediately.

After his arrest, officers took appellant into an interview room and informed him of his rights. At the beginning of his videotaped statement, the officers again informed appellant of his rights. They also informed him that he had a right to have a lawyer present to advise him prior to and during questioning. Appellant then asked, ACan I have him present now?@ Officer J.H. Davis with HPD responded affirmatively, but told appellant that officers would terminate the interview, put him back in his cell, and not speak to him further. Officer Davis then asked appellant if he wanted an attorney present, and he replied, ANo.@ Officers assured appellant that he could have an attorney present, but he stated that he would like to continue without one. Appellant=s attorney arrived and entered the interrogation room toward the end of appellant=s videotaped statement. Appellant conferred with his attorney. Afterwards, the interview continued in the presence of appellant=s attorney.

Appellant later testified that he continued to give his statement because he was told that Aif he cooperated and told the truth the judge would give him leniency.@ However, none of the officers present during the interrogation testified they offered any such inducement. During the statement, appellant confessed his involvement in the thefts.

In his pretrial motions to suppress, appellant contended his statement had been made after he requested counsel and was the product of undue influence. The trial court denied the motions to suppress.

During trial, the State played Felan=s videotaped statement to the jury. In the videotaped statement, Felan explained the theft transaction, inculpating appellant and himself. Appellant objected on several grounds, including denial of the right to confrontation and hearsay.

 FELAN=S STATEMENT

In appellant=s first issue, he contends the trial court erred in allowing Felan=s videotaped statement to be played to the jury. He contends the video was hearsay and he was denied his Sixth Amendment right to confrontation because Felan was not present to testify. In Felan=s video, he confesses that he stole drugs from the M.D. Anderson Cancer Center=s pharmacy and resold them. He also implicates three other individuals, including appellant. Felan explains in the video that in their drug-stealing schemes, appellant would steal drugs from Methodist Hospital and Felan would buy them and then sell them to a third individual.

Appellant argues that admission of Felan=s hearsay statement violates his right to confrontation. Admission of hearsay implicates the Confrontation Clause because the defendant has no opportunity to confront the out-of-court declarant. Ohio v. Roberts, 448 U.S. 56, 63 (1980). AThe central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.@ Maryland v. Craig, 497 U.S. 836, 845 (1990). A hearsay statement may, nonetheless, be admitted in evidence if it bears sufficient indicia of reliability. Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999). AA hearsay statement is per se reliable under the Confrontation Clause if it falls within a >firmly rooted= exception to the hearsay rule.@ Id.

Felan=s videotaped confession is a statement against penal interest, which is an exception to the hearsay rule. A statement against interest includes a statement which, at the time of its making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarant=s position would not have made the statement unless believing it to be true. Tex. R. Evid. 803(24). AA statement against penal interest is a >firmly rooted= exception.@ Guidry, 9 S.W.3d at 150. Accordingly, admission of Felan=s videotaped statement did not violate appellant=s Sixth Amendment rights.

Nevertheless, appellant, relying on Lilly v. Virginia, 527 U.S. 116, 133-34 (1999) (plurality opinion), contends the videotaped statement did not fall within a Afirmly rooted@ exception because accomplice confessions are unreliable. However, an Aadmission against a co-defendant declarant=s interest can be admissible against the defendant so long as it is sufficiently against the declarant=s interest to be reliable.@ Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999). In the present case, Felan explained the theft transactions in his statement. Throughout the statement, Felan inculpated himself and three other men, never trying to shift the blame to appellant. Because Felan=s statements implicated himself and appellant equally, they were sufficiently self inculpatory to be reliable statements against penal interest. See Dewberry, 4 S.W.3d at 753.

To be admissible, a statement against interest must also be sufficiently corroborated. Tex. R. Evid. 804(24). AThe corroboration must be sufficiently convincing to clearly indicate the trustworthiness of the statement.@ Dewberry, 4 S.W.3d at 751. A trial court should consider the following factors: (1) whether guilt of the declarant is inconsistent with guilt of the defendant, (2) whether the declarant was situated in such a manner that he might have committed the crime, (3) timing of the declaration, (4) spontaneity of the declaration, (5) the relationship of the parties, and (6) independent corroborative facts. Id. The evidence at trial showed Felan=s guilt was not inconsistent with appellant=s guilt. Felan was situated to help commit the thefts. Further, his statements were corroborated by the fact that he participated in a theft with appellant while wearing a wire. Additionally, Felan aided in appellant=s arrest. Because we find Felan=s statements reliable, and thus within a firmly rooted hearsay exception, and because corroborating circumstances indicate trustworthiness, the trial court did not err in admitting Felan=s videotaped statement. Accordingly, we overrule appellant=s first point of error.

RIGHT TO COUNSEL

In appellant=s second point of error, he contends that he invoked his right to counsel by asking, ACan I have him present now?@ Thus, all statements made thereafter should have been excluded, and the trial court erred by denying his motion to suppress. We review a ruling on a motion to suppress under the standards set forth in Guzman v. State, giving almost complete deference to a trial court=s determination of historical facts and viewing the evidence in the light most favorable to the trial court=s ruling. 955 S.W.2d 85, 87 (Tex. Crim. App. 1997). However, we review the trial court=s application of the law to the facts de novo. Id. at 89.

A request for counsel must be Aunambiguous,@ meaning the suspect must Aarticulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.@ Davis v. United States, 512 U.S. 452, 459 (1994). In Davis, the Court concluded that the following statement by a suspect was an ambiguous articulation of a desire for counsel: AMaybe I should talk to a lawyer.@ Id. at 462. When asked for clarification, appellant stated, ANo, I=m not asking for a lawyer.@ Id. at 455. Appellant=s tentative query in this case is somewhat similar.

After appellant was informed of his right to counsel, he asked, ACan I have him present now?@ Officer Davis then correctly answered appellant by stating that he could have counsel at that time, however, the questioning would end and appellant was to be returned to his cell. Davis then asked appellant if he wanted counsel present and appellant responded, ANo.@ Appellant was assured by another officer that he could have counsel present and he again refused.

Whether appellant invoked his right to counsel is determined by reviewing the totality of the circumstances. Smith v. State, 779 S.W.2d 417, 425 26 (Tex. Crim. App. 1989); Collins v. State, 727 S.W.2d 565, 568 (Tex. Crim. App. 1987). After reviewing all of the dialogue between appellant and the officers, we conclude that appellant=s ambiguous question about counsel was followed by his unambiguous rejection of an attorney=s presence during the interview. Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App. 1995). Accordingly, we overrule appellant=s second point of error.

INDUCED CONFESSION

In appellant=s third point of error, he contends the trial court erred in admitting his confession because it was improperly induced by a promise of leniency. In order to preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion and state the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh=g). Also, the trial court must be given an opportunity to rule expressly or implicitly, or must have refused to rule, and the complaining party objected to the refusal. Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996).

Appellant=s sole objection in his motion to suppress was that he invoked his right to counsel. He did not argue in his motion to suppress or in his supporting memorandum that police improperly induced his confession. Accordingly, we hold appellant did not properly preserve this issue for appellate review. See Tex. R. App. P. 33.1(a)(1). We overrule appellant=s third point of error.

JURY CHARGE

Appellant contends in his fourth and fifth issues that the trial court erred by failing to include instructions in the jury charge about undue influence and invoking the right to counsel. A defendant is entitled to an instruction on the voluntariness of his confession when the evidence presented at trial raises a factual issue as to whether he had been warned of his rights and voluntarily waived them prior to making a statement. Dinkins, 894 S.W.2d at 353 54. It is then proper to include in the jury charge instructions informing the jury that, if a reasonable doubt has been raised as to whether a defendant knowingly, intelligently, and voluntarily waived his rights before giving a confession, the jury must disregard the confession and not consider it for any purpose. Bell v. State, 582 S.W.2d 800, 812 (Tex. Crim. App. 1979). In this case, the court gave a general instruction on voluntariness instead of one that was fact-specific pertaining to appellant=s claim of undue influence. The trial court also informed the jury that they could disregard appellant=s statement if they found it was taken in contravention of the law. The court=s instructions adequately addressed when a statement is made voluntarily and in accordance with a defendant=s rights. Accordingly, we find the court=s charge accurately and sufficiently informed the jury regarding the applicable law. See Mendoza v. State, 88 S.W.3d 236, 240 (Tex. Crim. App. 2002) (defendant not entitled to instruction regarding criteria for confessions when instruction on voluntariness is adequate); Atkinson v. State, 923 S.W.2d 21, 23 (Tex. Crim. App. 1996). Therefore, we overrule appellant=s fourth and fifth issues and affirm the judgment of the trial court.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed August 26, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).