Bunkey John Bowman v. The State of Texas--Appeal from 264th District Court of Bell County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00440-CR
Bunkey John Bowman, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 45,896, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

PER CURIAM

 

A jury found appellant guilty of aggravated robbery. Tex. Penal Code Ann. 29.03 (West 1994). The district court assessed punishment, enhanced by previous felony convictions, at imprisonment for seventy-five years.

In his first point of error, appellant contends the district court erroneously overruled his challenge for cause to venire member Aaron Koch. Appellant challenged Koch on the ground that he was predisposed to believe the testimony of police officers and therefore biased against appellant. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 1989). Appellant exhausted his peremptory challenges, using one against Koch. Appellant requested an additional challenge that was refused. Appellant identified an objectionable juror who served at trial. Contrary to the State's contention, the point of error was preserved. Bigby v. State, 892 S.W.2d 864, 882-83 (Tex. Crim. App. 1994).

Koch was a certified peace officer and an employee of the Burnet County sheriff. Koch stated that he would "automatically think that if you have an officer testify he's going to tell the truth." Koch indicated that a police officer is a credible witness "due to the professionalism that he has to carry with him" and because of "the nature of his job and what he does." Koch denied, however, that this meant that he "could never judge a police officer's testimony." Koch indicated that he would not "believe [a police officer] over anybody else" and would weigh an officer's testimony "in the same way that [he] would another person that's not a police officer." Koch's voir dire ended as follows:

 

THE COURT: The question is if [two witnesses] are both conflicting with each other would you tend to believe the police officer because of his position as a police officer over the ordinary citizen?

 

[Koch]: I don't believe I could answer that for me, judge.

 

[Prosecutor]: Would you look to other things in making a decision? What they said, how they said it, if it made sense, would those be factors that you would be looking at separate from the fact that someone is a police officer in making a decision as to whether or not to believe what they say?

 

[Koch]: I believe that would be.

 

At this point, defense counsel declined the opportunity to ask further questions and the challenge was overruled.

Appellant relies on the opinion in Hernandez v. State, 563 S.W.2d 947 (Tex. Crim. App. 1978). In that case, the venire member expressed the belief that a police officer would not lie under any circumstances. The Court of Criminal Appeals held that this predisposition to believe a police officer would prevent the venire member from impartially judging the credibility of the witnesses and constituted a bias against the defendant. Id. at 950.

The State urges that this cause is more closely analogous to Lane v. State, 822 S.W.2d 35, 42-45 (Tex. Crim. App. 1991). The venire members in Lane were predisposed to trust and believe police officers. They also indicated, however, that they would not believe a police officer's testimony merely because of his employment and would judge the officer's testimony by the same standard they applied to other witnesses. The Court of Criminal Appeals concluded that the venire members did not display the "blatant bias" that was present in Hernandez and that "it was well within the trial court's discretion to find no bias against [the defendant] existed." Id. at 45.

We agree with the State that Lane controls our disposition of this point. Koch was predisposed to believe the testimony of a police officer, but not to the point that he could not conceive of a police officer lying. Koch stated that he would judge the credibility of all witnesses by the same standards, and would not automatically believe a police officer if his testimony conflicted with that of another witness. We hold that the district court's ruling on appellant's challenge for cause was not an abuse of its discretion. Point of error one is overruled.

Appellant's second point of error complains of the admission in evidence of his November 15, 1995, statement to the police, which appellant argues was obtained in violation of his Sixth Amendment right to counsel. U.S. Const. amends. VI, XIV. At the time the statement was given, appellant was in custody following his arrest for the aggravated assault of his son and for the robbery of the "Beer Garden" in Temple. The latter offense underlies the present appeal. In the statement, appellant described his initial arrest for the aggravated assault and his flight from Bell County after he was released on bond. According to the statement, appellant committed the Beer Garden robbery and three other robberies while at large. All references to offenses other than the Beer Garden robbery were redacted from the statement before it was admitted in evidence at the guilt stage. The statement was introduced in its entirety at the later punishment hearing before the court.

Appellant had been indicted for the aggravated assault and had hired an attorney to represent him in that case, a fact known to the officer who conducted the interview. Under the circumstances, the police could not initiate an interrogation of appellant about the aggravated assault without notice to counsel, and appellant could not waive his right to counsel outside his attorney's presence. Holloway v. State, 780 S.W.2d 787, 795 (Tex. Crim. App. 1989). It is undisputed that counsel was not notified of the November 15 interview. We will assume for the purpose of this opinion that, as appellant contends, the police violated the Sixth Amendment by questioning him about the aggravated assault.

The Sixth Amendment right to counsel is offense-specific. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The invocation of the Sixth Amendment right to counsel does not preclude the police from investigating new or additional crimes or render inadmissible incriminating statements pertaining to other crimes to which the Sixth Amendment right to counsel does not apply. Id. at 175-76; Maine v. Moulton, 474 U.S. 159, 179-80 & n.16 (1985). Because the Sixth Amendment violation asserted by appellant related to the aggravated assault offense and not to the Beer Garden robbery, McNeil would appear to be dispositive of appellant's claim. Appellant seeks to avoid McNeil by invoking the opinion in Upton v. State, 853 S.W.2d 548, 555-56 (Tex. Crim. App. 1993).

In Upton, the defendant was under arrest for theft of an automobile, an offense to which the Court of Criminal Appeals determined the Sixth Amendment had attached. Without notifying the defendant's attorney, the police questioned appellant and obtained an incriminating statement concerning the murder of the car's owner. The State argued that there was no Sixth Amendment violation because, under McNeil, the capital murder was a new or additional crime. The Court of Criminal Appeals disagreed, noting that the defendant was subsequently accused of capital murder in the course of robbery and that the theft of the car was used to prove the robbery element. Because the theft was so closely related to the capital murder as to become an element of that offense, the Court of Criminal Appeals held that the capital murder was not a new or additional crime within the meaning of McNeil. Thus, the questioning that resulted in the murder confession violated the defendant's Sixth Amendment right to counsel.

Appellant's assault of his son was committed months before the Beer Garden robbery. The assault was neither an element of the robbery nor an essential item of evidence in this aggravated robbery prosecution. Indeed, the sole reference to the assault contained in the November 15 statement was redacted before the statement was introduced in evidence at the guilt stage. Appellant asserts that the existence of the aggravated assault offense affected his strategy during trial. Assuming this to be true, the fact remains that appellant's assault against his son was unrelated to and independent of the Beer Garden robbery. We find no basis in Upton for concluding that the Beer Garden robbery was not a new or additional crime under McNeil.

Appellant's Sixth Amendment right to counsel was specific to the aggravated assault offense and did not preclude the police from questioning appellant about the unrelated Beer Garden robbery or render inadmissible the resulting incriminating statement. McNeil, 501 U.S. at 175-76. The district court did not err by admitting the redacted statement at the guilt stage over appellant's Sixth Amendment objection.

Appellant renewed his Sixth Amendment objection when the unredacted statement, with its reference to the assault, was offered in evidence at the punishment stage. While that portion of the statement referring to the assault was obtained in violation of appellant's Sixth Amendment rights, any error in its admission was harmless. Tex. R. App. P. 81(b)(2). The punishment evidence showed that appellant had three previous convictions for aggravated robbery, aggravated kidnapping, and burglary of a habitation. In addition, the State proved three unadjudicated aggravated robberies. We are satisfied beyond a reasonable doubt that the brief reference to the assault against his son in appellant's November 15 statement did not contribute to the punishment assessed by the court. Point of error two is overruled.

The judgment of conviction is affirmed.

 

Before Justices Powers, Jones and Kidd

Affirmed

Filed: February 13, 1997

Do Not Publish

e his right to counsel outside his attorney's presence. Holloway v. State, 780 S.W.2d 787, 795 (Tex. Crim. App. 1989). It is undisputed that counsel was not notified of the November 15 interview. We will assume for the purpose of this opinion that, as appellant contends, the police violated the Sixth Amendment by questioning him about the aggravated assault.

The Sixth Amendment right to counsel is offense-specific. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). The invocation of the Sixth Amendment right to counsel does not preclude the police from investigating new or additional crimes or render inadmissible incriminating statements pertaining to other crimes to which the Sixth Amendment right to counsel does not apply. Id. at 175-76; Maine v. Moulton, 474 U.S. 159, 179-80 & n.16 (1985). Because the Sixth Amendment violation asserted by appellant related to the aggravated assault offense and not to the Beer Garden robbery, McNeil would appear to be dispositive of appellant's claim. Appellant seeks to avoid McNeil by invoking the opinion in Upton v. State, 853 S.W.2d 548, 555-56 (Tex. Crim. App. 1993).

In Upton, the defendant was under arrest for theft of an automobile, an offense to which the Court of Criminal Appeals determined the Sixth Amendment had attached. Without notifying the defendant's attorney, the police questioned appellant and obtained an incriminating statement concerning the murder of the car's owner. The State argued that there was no Sixth Amendment violation because, under McNeil, the capital murder was a new or additional crime. The Court of Criminal Appeals disagreed, noting that the defendant was subsequently accused of capital murder in the course of robbery and that the theft of the car was used to prove the robbery element. Because the theft was so closely related to the capital murder as to become an elem