In the Matter of H.H.B. III, A Juvenile--Appeal from 52nd District Court of Coryell County

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H.H.B., III, In re /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-094-CV

 

IN THE MATTER OF H.H.B., III,

A JUVENILE,

Appellant

 

 

From the 52nd District Court

Coryell County, Texas

Trial Court # 944

 

O P I N I O N

 

H.H.B., III, a juvenile, appeals his delinquent-child adjudication and disposition after the jury found he had engaged in the following delinquent conduct: two instances of the unauthorized use of a motor vehicle, one instance of escape, three instances of aggravated assault, and one instance of evading arrest. On March 29, 1995, the trial court ordered the juvenile, born August 6, 1979, committed to the Texas Youth Commission for an indeterminate period of time but not later than the juvenile's 21st birthday. The juvenile brings four points of error: (1) the trial court erred in denying his motion for a mistrial after the State questioned a witness about a prior unadjudicated offense; (2) the trial court erred in denying his motion for mistrial after the State questioned a witness about a second unadjudicated offense; (3) the trial court erred in allowing a non-expert witness to offer expert testimony; and (4) the trial court erred in allowing into evidence an illegally obtained confession. We affirm.

The evidence indicates that the several offenses the juvenile was found to have committed all occurred as the result of three different criminal episodes. The first occurred on or about September 4, 1994, when the juvenile was living at a private residence with other troubled youths in Lometa, Lampasas County. During the middle of the night, the juvenile, without permission, boarded a school bus owned by the Lometa Independent School District and drove it to San Saba County where he was apprehended.

The second occurred on or about October 25, 1994, when the juvenile was residing in Goldthwaite, Mills County, at another residence for troubled boys. The juvenile escaped from the residence, stole an automobile from a nearby resident, and embarked on an approximately 100-mile excursion that ultimately ended in Williamson County, in or near Round Rock. During the excursion, the juvenile was engaged by law enforcement officials from several counties in a high-speed chase that occasionally exceeded speeds of 100 miles per hour. On at least three different occasions, the juvenile steered the car he was driving in the direction of patrol cars driven by three different law enforcement officials with the intention of disabling the patrol cars. The chase concluded when the juvenile's automobile was forced off the road by the confluence of patrol cars and a semi-truck.

The third incident occurred on or about November 22, 1994, when the juvenile escaped from the custody of an official from the Coryell County Probation Department. The official and the juvenile were present at the Coryell County Courthouse for a detention hearing when the official permitted the juvenile to use the restroom. The juvenile took advantage of the opportunity to flee from custody.

In his first two points of error the juvenile contends the trial court erred in denying his motion for a mistrial after the State questioned a witness about prior adjudicated offenses allegedly committed by the juvenile.

The State's first witness was Jennifer Rochelle Steadman, an investigator for the Texas Department of Protective and Regulatory Services (DPRS). The State was questioning Steadman on how the juvenile came to be in the possession of DPRS when it further inquired if the juvenile had previously committed other acts of the unauthorized use of a motor vehicle. The defense objected, asked for an instruction to disregard, and moved for a mistrial. The trial court sustained the objection and gave the requested instruction, but the court denied the motion for a mistrial.

Evidence of extraneous offenses is generally not admissible in an adjudication proceeding with a juvenile. Tex. R. Civ. Evid. 404(b). The State argues that the prior bad acts of the juvenile concerning the unauthorized use of a motor vehicle were offered only to explain how the juvenile came under the possession of DPRS, not to prejudice the juvenile with the mentioning of prior bad acts, and therefore the question was proper. We disagree with the State. None of the charges made against the juvenile depended on him being in the possession of DPRS. Therefore, there was no reason for the State to prove the juvenile was in the possession of DPRS. See Ramirez v. State, 815 S.W.2d 636, 644-45 (Tex. Crim. App. 1991). The trial court was correct in sustaining the juvenile's objection.

The question remains, however, of the amount of damage, if any, the juvenile suffered from the question being propounded in the presence of the jury. In juvenile delinquency adjudications the civil standard for harmless error is employed. Tex. R. App. P. 81(b)(1); In re G.M.P., 909 S.W.2d 198, 210 (Tex. App. Houston[14th Dist.] 1995, no writ); In re D.Z., 869 S.W.2d 561, 565 (Tex. App. Corpus Christi 1993, writ denied). Rule 81(b)(1) of the Rules of Appellate Procedure provides, in relevant part:

No judgment shall be reversed on appeal and a new trial ordered in any cause on the ground that the trial court has committed an error of law in the course of the trial, unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case, or was such as probably prevented the appellant from making a proper presentation of the case to the appellate court[.]

 

Tex. R. App. P. 81(b)(1).

It is well-settled in criminal cases that references to or implications of extraneous offenses can be rendered harmless by an instruction to disregard by the trial judge, unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury's mind. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992); Gardner v. State, 730 S.W.2d 675, 696-97 (Tex. Crim. App. 1987); Davis v. State, 642 S.W.2d 510, 512 (Tex. Crim. App. 1982). We find the State's question concerning other acts of the unauthorized use of a motor vehicle did not have such a damaging effect where the trial court sustained the juvenile's objection and instructed the jury to disregard the question, especially in light of the civil harmless error standard. The juvenile's first two points are overruled.

In his third point of error the juvenile complains that the trial court erred in allowing Deputy Ricky Russell of the Williamson County Sheriff's Department to offer his opinion on what would have happened had his patrol car been knocked off the freeway by the juvenile while they were both involved in a high-speed chase. He contends that this testimony amounted to expert testimony from a lay witness.

The record reveals that the disputed testimony followed a line of questions propounded by the State to Deputy Russell on the circumstances of the chase. Deputy Russell testified that he was driving his patrol car immediately in front of the car the juvenile was driving and that he was swerving his patrol car back and forth across the two lanes of the interstate in an effort to slow and eventually stop the juvenile, a procedure that is known as a "rolling roadblock." Deputy Russell further testified that, as a result of him conducting the rolling roadblock, he and the juvenile slowed from between 90 to 100 miles per hour to between 50 to 70 miles per hour. This caused the juvenile to drive up close to the rear bumper on Deputy Russell's patrol car. Then, when Deputy Russell swerved to the right as he continued to conduct the rolling roadblock, the juvenile swerved to the left and began to pass Deputy Russell. Once the juvenile was along-side Deputy Russell, the juvenile steered hard to the right and forced Deputy Russell onto the shoulder of the interstate. Deputy Russell's patrol car, however, did not leave the road, and he was able to straighten its direction. He and the juvenile then, while side-to-side, accelerated to approximately 122 miles per hour.

At this point in the testimony the State began to ask questions concerning the danger Deputy Russell faced as a result of the juvenile's actions. One of these questions was the following:

[State]: Was [the juvenile's] automobile [of] a sufficient mass [that,] if it had collided with yours, it would have done damage to your car and to you?

 

The defense immediately objected on the ground that the question called for expert testimony that Deputy Russell was not qualified to give. The trial court overruled the objection, and Deputy Russell answered that the automobile the juvenile was driving could have caused him serious injury if it had contacted with his patrol car.

A lay witness may give his opinion regarding things within his common knowledge. Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984); Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978). Further, a police officer may give an opinion concerning physical facts he has observed which are within his experience. Smith, 683 S.W.2d at 404.

The record reveals that Deputy Russell in his fourteen years of law enforcement experience had investigated automobile accidents for many years and that he had specifically investigated accidents where automobiles left the road while travelling at approximately 50 miles per hour. We conclude that Deputy Russell's testimony on the danger he faced in being forced off the road by the juvenile involved a subject properly within his range of experience as a police officer who routinely investigates automobile accidents. The trial court did not err in permitting Deputy Russell to so testify. The juvenile's third point is overruled.

In his fourth and final point of error the juvenile argues the trial court erred in permitting Investigator Raymond Burr of the Lampasas County Sheriff's Department to testify that the juvenile admitted to the unauthorized use of a bus owned by the Lometa Independent School District on or about September 4, 1994.

The circumstances of the juvenile's confession are as follows. After the Lometa ISD bus was taken, the juvenile was apprehended in San Saba County and David Whitis, a deputy with the Lampasas County Sheriff's Department, was instructed to pick him up and return him to Lampasas County. Deputy Whitis picked up the juvenile as instructed and told him that he did not want to talk to the juvenile about any offenses he may have committed but that the juvenile could speak to an investigator in Lampasas about any offenses once the two of them arrived there. Deputy Whitis then handcuffed the juvenile and put him in his patrol car. No further words were spoken by the parties to each other until the juvenile was in the patrol car. Once inside, the juvenile began weeping and asked Deputy Whitis if he could return to the private residence in Lometa in which he was living at the time. Deputy Whitis responded that, most likely, the juvenile would be allowed to return to that residence. Deputy Whitis then, apparently attempting to respond fully to the juvenile's question, informed him that they were going to have to go to Lampasas to complete some paperwork and that is when the juvenile inquired about the Lometa ISD school bus. Deputy Whitis answered that he did not want to talk about the school bus but that the juvenile could speak to the investigator about it later. About two to three miles down the road, Deputy Whitis and the juvenile passed by the bus that the juvenile had taken. The juvenile then asked Deputy Whitis questions about what would happen to him if he took the bus. Deputy Whitis directly answered each of the juvenile's questions. About a mile later the juvenile admitted to taking the bus.

Section 51.09 of the Family Code provides that juvenile confessions are admissible only after an extensive list of admonitions are given to the child. See Tex. Family Code Ann. 51.09 (Vernon 1996). The State makes no argument that the requirements to admissibility of section 51.09 were met. Instead, it asserts that the confession was not the product of any interrogation on the part of Deputy Whitis and, therefore, it was properly admitted because Deputy Whitis did not violate either section 51.09 or any of the juvenile's state or federal rights.

Section 51.09(d)(2) provides that confessions not the product of custodial interrogation may be admitted. Tex. Family Code Ann. 51.09(d)(2). The evidence in the record supports the trial court's implicit finding that the juvenile's confession was in no way coerced by either the words or actions of Deputy Whitis. The confession was given freely and voluntarily by the juvenile and was in no way prompted by Deputy Whitis. Therefore, the trial court did not err in permitting Investigator Burr to testify that the juvenile had confessed. See Hernandez v. State, 819 S.W.2d 806, 816 (Tex. Crim. App. 1991), cert. denied, U.S. , 112 S. Ct. 2944 (1992); Henson v. State, 794 S.W.2d 385, 392-93 (Tex. App. Dallas 1990, pet. ref'd); Galloway v. State, 778 S.W.2d 110, 112-13 (Tex. App. Houston[14th Dist.] 1989, no pet.). The juvenile's fourth point is overruled. The judgment is affirmed.

 

BOBBY L. CUMMINGS

Justice

 

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed June 5, 1996

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