Jeremy Rodriguez v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00558-CR
Jeremy RODRIGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CR-6814
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: September 3, 2003

AFFIRMED

Rodriguez was convicted by a jury of capital murder and sentenced to life imprisonment. On appeal, Rodriguez contends: (1) the trial court erred in denying his motion to suppress; (2) the failure to instruct the jury on the legal issues regarding evidence obtained under Article 38.23 of the Texas Code of Criminal Procedure resulted in egregious harm; (3) the trial court erred in excluding evidence of one of the victim's connection to the New Wave Mexican Mafia; and (4) the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.

Motion to Suppress

In his first issue, Rodriguez contends that the trial court erred in denying his motion to suppress his oral and written statements because the statements were involuntary and the product of custodial interrogation. In his second issue, Rodriguez contends that the trial court erred in denying his motion to suppress certain physical evidence because the evidence was a product of a warrantless arrest and seizure.

We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). In this review, we give almost total deference to the trial court's determination of historical facts and review the court's application of search and seizure law de novo. Id.

Rodriguez initially contends that his written statement was involuntary because although he initialed the warnings appearing at the top of his statement, he never indicated that he voluntarily and affirmatively waived his rights. Immediately following the written warnings, however, the statement provides, "I prior to during [sic] the making of this statement knowingly, intelligently, and voluntarily waive these rights." Accordingly, Rodriguez expressly waived his rights before making the written statement.

Rodriguez next contends that his statements were involuntarily obtained as a result of custodial interrogation. A person is in "custody" only if, under the circumstances, a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). The determination of custody must be made on an ad hoc basis, after considering all of the objective circumstances. Id. at 255. Stationhouse questioning does not, in and of itself, constitute custody. Id.

The Texas Court of Criminal Appeals has outlined four general situations which may constitute custody: (1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Id. Concerning the first through third situations, the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id. Concerning the fourth situation, the officers' knowledge of probable cause must be manifested to the suspect. Id. Such manifestation could occur if information substantiating probable cause is related by the officers to the suspect or by the suspect to the officers. Id. Under situation four, custody is established only if the manifestation of probable cause, combined with other circumstances, would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest. Id.

On August 23, 2001, the bodies of two victims, Paul Gallegos and Daniel Gallegos, were found beside Trumbo Road. The two victims, who were from Arizona, had been shot in the head. Investigator Marin obtained information from Paul's father that the only individual that he knew to have befriended Paul and Daniel during their stay in San Antonio was Rodriguez. On August 24, 2001, Investigator Marin and Investigator Baker went to the home of Rodriguez's grandmother, where Rodriguez was living, and left their card for Rodriguez to call. On August 27, 2001, Investigator Marin retrieved a voice mail message from Rodriguez. Investigator Marin attempted to return Rodriguez's call, but the line was busy. Investigator Marin and Investigator Baker decided to go to Rodriguez's home.

The two investigators arrived at Rodriguez's home around 11:00 a.m. Rodriguez's grandmother stated that Rodriguez was asleep, but she offered to wake him. The investigators remained outside on the porch. A few minutes later, Rodriguez came to the door. The investigators informed him that they were investigating the murder of Paul and Daniel. Rodriguez stated that Paul and Daniel were good friends and expressed a desire to help the investigators. The investigators asked Rodriguez if he would be willing to accompany them to the station to speak with them. Rodriguez agreed, and the investigators waited outside while Rodriguez washed up and dressed.

Rodriguez was taken by the investigators in an unmarked car to the sheriff's office. The investigators were in plain clothes. Rodriguez rode in the back seat and was not handcuffed. Rodriguez was taken to an interview room that was in a secured area, but the door to the room remained unlocked. Investigator Marin read Rodriguez the Miranda warnings because he was treating any close associate of Paul and Daniel as a possible suspect based on information from Paul's father that Paul was involved in drug dealing and was in possession of a large amount of money. Given that neither Paul nor Daniel had wallets when their bodies were discovered, Investigator Marin believed robbery could have been a motive in the killings.

Investigator Marin questioned Rodriguez about his relationship with Paul and Daniel and about the last time he saw them. Investigator Marin stated that Rodriguez was free to leave at any time, and Rodriguez never requested any refreshment or to use the bathroom.

Initially, Rodriguez told the investigators that he was with Paul and Daniel the night they were shot, and the last time he saw them was when they dropped him off at his house. Investigator Baker confronted Rodriguez in a raised voice about whether he was being totally honest. Investigator Baker told Rodriguez that he believed some of his story but not all of it. Investigator Marin and Investigator Baker stated that Investigator Baker did not yell or scream at Rodriguez. After Investigator Baker confronted him, Rodriguez's demeanor changed from being calm and cooperative to being upset, cursing and screaming at the investigators. Investigator Baker encouraged Rodriguez to calm down, and the two investigators left the room for approximately 15 minutes to allow Rodriguez time to calm himself. Rodriguez remained in the room by himself without handcuffs, and the door remained unlocked.

When the investigators returned, Rodriguez apologized for his outburst. Rodriguez told the investigators he was present when Paul and Daniel were killed, but a man named Fred, whose nickname was Sleepy, shot them. Rodriguez stated that they had picked Fred up on the roadside a short time before the shootings. Rodriguez agreed to put his statement in writing, and Investigator Marin began to take the written statement around 1:15 p.m. During the taking of the statement, the investigators noticed specks of red color on Rodriguez's cap and shoes. Rodriguez stated that he was wearing them at the place where Paul and Daniel were shot and offered to give the cap and shoes to the investigators. Rodriguez also stated that he had taken some property from the victims after the shootings and offered to show the investigators where the property was located.

The investigators first took Rodriguez back to his house, where Rodriguez handed the investigators two gold chains and a ring. Rodriguez accompanied the investigators to various locations. At one location, the remnants of a cell phone were recovered, which Rodriguez stated he had taken from Paul. At another location, they recovered the shirt Rodriguez was wearing during the shootings, a stereo system taken from the car, and some CDs. Sometime during this drive, the investigators stopped and purchased a soda and candy bar for Rodriguez. After the evidence was recovered and as it was turning dark, the investigators drove Rodriguez home, and he was not arrested until approximately 9 to10 days later.

During cross-examination, the investigators denied using a good-cop/bad-cop routine, with Investigator Baker playing the role of the "heavy" guy when questioning Rodriguez.

The trial court concluded that the statements were not the subject of a custodial interrogation and were voluntarily given. The trial court expressly found: "[Rodriguez] was not in any type of restraints; he voluntarily left his grandmother's home in the custody of - I should say, in the presence or with the two sergeants from the Bexar County Sheriff's Office; he was free to leave at any time; the interview and the subsequent written statement were not secured through the use of threats, coercion, trickery, any type of deprivations; he did not invoke any of the rights that he was informed about, particularly those concerning the Fifth and Sixth Amendment, Article 1, Section 10 of the Texas Constitution about counsel; he was not intoxicated by any substance; he did understand his rights. And I believe that's all the things I need to cover. There was no official coercion, deception or inducement."

Deferring to the trial court's findings, the record does not support a conclusion that: (1) Rodriguez was physically deprived of his freedom of action in any significant way, (2) Rodriguez was told that he could not leave, (3) the investigators created a situation that would lead a reasonable person to believe that his freedom of movement was significantly restricted, or (4) there was probable cause to arrest and the investigators did not tell Rodriguez that he was free to leave. See Dowthitt v. State, 931 S.W.2d at 255. Based on Rodriguez's statement, another person was involved in the shootings, and the investigators investigated the existence of the other person. Accordingly, the investigators did not have probable cause to arrest Rodriguez at that time, and no such knowledge was manifested to Rodriguez. See id.

With regard to the recovery of the evidence, an arrest occurs when a person's movement or liberty is restricted or restrained. Flores v. State, 895 S.W.2d 435, 441 (Tex. App.--San Antonio 1995, no pet.). In this case, the trial court found that Rodriguez voluntarily accompanied the investigators. No evidence was presented that would support a finding that Rodriguez's movement or liberty was restricted or restrained. In addition to the testimony of the investigators, the videotape taken of the recovery of the evidence shows Rodriguez was not restricted or restrained in his movement.

We therefore hold that the trial court did not abuse its discretion in denying Rodriguez's motion to suppress. Rodriguez's first and second issues are overruled.

Jury Charge

In his third issue, Rodriguez contends that the trial court's failure to instruct the jury on the legal issues regarding the evidence obtained under Article 38.23 resulted in egregious harm. A trial court is required to include an Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained. Balentine, 71 S.W.3d at 773. Rodriguez contends that a fact issue was raised based on the investigators' denial of the use of a good-cop/bad-cop routine and the testimony from other witnesses regarding the approach taken by the investigators in obtaining their statements.

Assuming, without deciding, that the testimony regarding the possible use of a good-cop/bad-cop routine was sufficient to raise a factual dispute as to how the evidence was obtained, Rodriguez concedes that no proper objection was made at trial. As a result, Rodriguez must claim that the error was fundamental and a reversal is warranted only if the error is so egregious and created such harm that Rodriguez did not have a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.1985). The degree of harm must be viewed in light of the entire jury charge, the state of the evidence, and any other relevant information revealed in the record as a whole. Id. The presence of overwhelming evidence supporting a finding of guilt can be a factor in evaluating harm. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002).

In this case, whether the evidence even raised a fact issue regarding the voluntariness of Rodriguez's statement is questionable. The testimony of the investigators, other than whether Investigator Baker played the "heavy" cop, was largely undisputed. Although Investigator Baker testified that the routine was sometimes used by the investigators, he stated on re-direct examination that he did not have the opportunity to use the routine on this occasion. The only testimony that Investigator Baker may have possibly played the role of a "heavy" cop was when Investigator Baker questioned the validity of Rodriguez's first statement; however, the investigators, Marin and Baker, stated that Investigator Baker only raised his voice and did not yell or scream at Rodriguez, and Investigator Baker encouraged Rodriguez to calm down and suggested a break. With regard to the state of the evidence, two witnesses testified that Rodriguez told them after the shootings that he had committed the murders. One witness testified that Rodriguez stated that he had not been arrested because the investigators were dumb and fell for his story that Fred or Sleepy was the shooter. Based on the record as a whole, we hold that the failure to include an Article 38.23 instruction in the jury charge did not result in egregious harm. Rodriguez's third issue is overruled.

Evidence of Connection with Mafia

In his fourth issue, Rodriguez contends that the trial court abused its discretion in excluding evidence of Paul's possible connection with the New Wave Mexican Mafia in Arizona and evidence that Paul was wanted for questioning in Arizona in connection with the murder of a drug dealer. Defense counsel wanted to question Investigator Marin because he testified that he had contacted the Arizona authorities to confirm the above information and because Investigator Marin had included in the affidavit supporting Rodriguez's arrest warrant that Paul and Daniel had told Rodriguez about the murder. In addition, defense counsel wanted to question Rodriguez's brother about statements made by Paul and Daniel regarding the reason for their visit to San Antonio. Finally, defense counsel wanted to question Norma Ibarra about statements made by Rodriguez to her regarding statements made by Paul and Daniel to Rodriguez about the Arizona murder.

A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). An appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement. Id. A trial court's ruling will be sustained on appeal if it is correct on any theory of law applicable to the case, even if the trial court gives the wrong reason for the decision, and this is especially true with regard to admission of evidence. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990).

The evidence regarding statements made by Paul and Daniel to Rodriguez or Rodriguez's brother either in the affidavit supporting the arrest warrant or through the testimony of witnesses was inadmissible hearsay. Tex. R. Evid. 801. Rodriguez argues in his brief that the statements were not hearsay because defense counsel did not seek to introduce the statements for the truth of the matter asserted but to explain "a basis for the deputies investigation [sic] reasoning." Despite Rodriguez's contention to the contrary, the only relevance the statements have with regard to Rodriguez's defense is to show that another person had a motive for shooting the victims. This motive is only shown if the statements are offered for the truth of the matter asserted, i.e., that the victims were involved with the Mafia and had killed a prominent drug dealer. Accordingly, the trial court did not abuse its discretion in excluding the evidence regarding the out of court statements.

With regard to the testimony Rodriguez sought to elicit from Investigator Marin regarding the information he obtained from the authorities in Arizona, the trial court could have determined that the evidence was not relevant because there was no evidence that Fred or Sleepy, the shooter identified by Rodriguez, had any connection with the Mafia or with the drug dealer's death. Tex. R. Evid. 401, 402. Alternatively, the trial court could have determined that the evidence was inadmissible because character evidence of a victim is generally not admissible in a homicide prosecution absent some act of aggression by the victim that the character evidence tends to explain. Campbell v. State, 885 S.W.2d 528, 531 (Tex. App.--El Paso 1994, no pet.). Finally, the trial court could have decided that the relevance of the evidence, which was not connected to the person Rodriguez identified as the shooter, was substantially outweighed by the danger of confusion of the issues or misleading the jury. Tex. R. Evid. 403. Accordingly, the trial court did not abuse its discretion in excluding Investigator Marin's testimony regarding the information obtained from the Arizona authorities.

Rodriguez's fourth issue is overruled.

Sufficiency of the Evidence

In his fifth and sixth issues, Rodriguez challenges the legal and factual sufficiency of the evidence to support his conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In our factual sufficiency review, we must consider all of the evidence to determine whether the judgment is "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). "As factfinder, the jury is entitled to judge the credibility of witnesses, and can choose to believe all, some, or none of the testimony presented by the parties." Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). "A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State." Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

Paul's father testified that the only person who had befriended Paul and Daniel was Rodriguez. Rodriguez admitted he was present at the time Paul and Daniel were shot. Rodriguez gave a statement to the police that Fred or Sleepy was the shooter; however, the police were unable to locate a person matching the vague description given by Rodriguez, and Rodriguez's statements regarding his interaction with Fred or Sleepy were inconsistent.

David Mendez, a neighbor, testified that he and Rodriguez's brother picked Rodriguez up the same day the murder occurred close to the location where the victims' bodies were found. Mendez testified that Rodriguez stated that he had messed up and was going to hell. Rodriguez had a gun and was counting money. Rodriguez went to Mendez's house the next day and told him to watch the news. Mendez saw a news report regarding the murders. Rodriguez returned to Mendez's house after the news and told Mendez he committed the murders for money. In addition, Norma Ibarra testified that she and Elizabeth Ballejo picked Rodriguez up a few days after the murder, and during the drive, Rodriguez told them that he had shot Paul and Daniel.

On the other hand, Rodriguez's brother denied Mendez's testimony regarding Rodriguez being in possession of a gun and money or stating he had messed up when they picked him up close to Trumbo Road where the murders had occurred. Rodriguez's brother stated that Mendez was a drug user. Ballejo did not remember Rodriguez making any statements when he was riding with Ibarra and Ballejo.

Although the jury was presented with some conflicting evidence, the jury's resolution of those conflicts in favor of the State was not manifestly unjust. Accordingly, the evidence was legally and factually sufficient to support the conviction, and Rodriguez's fifth and sixth issues are overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH