Aldney Edward Clark, Jr. v. The State of Texas--Appeal from 2nd District Court of Cherokee County

NO. 12-02-00233-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

  ALDNEY EDWARD CLARK, JR.,   ' APPEAL FROM THE 2ND

APPELLANT

  V.   ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

  APPELLEE   ' CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

A jury convicted Appellant Aldney Edward Clark, Jr. (AAppellant@) of murder and assessed his punishment at imprisonment for life and a $10,000 fine. In three issues on appeal, Appellant contends that the trial court abused its discretion in admitting an audiotape of his statement into evidence and in admitting testimony of an extraneous offense. We affirm.

Background

On April 7, 1986, a home health care worker entered the residence of Martha Ezell and found Ms. Ezell dead from multiple gunshot wounds. Approximately fifteen years later, Appellant was indicted for capital murder in the death. The indictment alleged that Appellant caused the victim=s death by shooting her with a firearm, and that Appellant caused the death while he was in the course of committing or attempting to commit the offense of burglary, robbery, and/or aggravated sexual assault. The indictment also included an enhancement count, which was subsequently abandoned.

Appellant pleaded Anot guilty@ and the matter proceeded to a jury trial. The jury found Appellant guilty of murder and assessed his punishment at imprisonment for life and a $10,000 fine. This appeal followed.

Right to Remain Silent

In his first issue, Appellant contends that the trial court abused its discretion in admitting State=s Exhibit 81, which is the audiotape of an interview with Appellant conducted by Randy Hatch (AHatch@), District Attorney Investigator for Cherokee County. Appellant argues that the audiotape is inadmissible because the interrogating officer failed to terminate or interrupt the interview upon Appellant=s request to make a phone call to his father. Therefore, Appellant contends, Hatch violated his right to remain silent.

The Supreme Court has held that unless an invocation of the right to counsel is unambiguous, an interrogating officer is not required to terminate a custodial interrogation. See Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994). In other words, if a suspect makes a reference to the right to counsel that is ambiguous or equivocal, the officer is not required to discontinue questioning. Id. The court of criminal appeals has applied this same rule where a defendant contends the right to remain silent was invoked. See Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). Furthermore, an officer is not required to clarify ambiguous remarks before continuing the questioning. Id.

In the case at hand, Hatch warned Appellant of his rights, including his right to remain silent, prior to beginning the interview. Appellant acknowledged that he understood his rights, that he waived them, and that he wished to speak to Hatch. Early in the interview, the following exchange occurred:

HATCH: Is there anybody that you know that would vouch for you and say there is no way Al could have [killed Martha Ezell]?

APPELLANT: Just my daddy right now since my mama=s gone.

HATCH: You said you wanted to place a phone call to your dad?

APPELLANT: Yes, sir, I would like to.

HATCH: We will do that here in just a second.

APPELLANT: See if he is home. My sister, she could probably tell you because she=s living in Arkansas.

HATCH: We will let you make that phone call here in a second. Is that agreeable?

APPELLANT: Yes, sir.

In this exchange, we note that Hatch, not Appellant, broached the subject of the telephone call. After Appellant agreed to delay the call, neither Appellant nor Hatch made any other reference to it. Appellant made no attempt to postpone or discontinue the interview and never stated, expressly or impliedly, that he did not want to answer questions. To the contrary, he answered all of Hatch=s questions without hesitation. Under these circumstances, we cannot conclude that Appellant attempted to invoke his right to remain silent. Cf. Dowthitt, 931 S.W.2d at 257 (right to remain silent not invoked by comment that AI can=t say more than that. I need to rest.@). Appellant=s first issue is overruled.

Hearsay Statements

In his second issue, Appellant asserts that the trial court abused its discretion in admitting the audiotape of Hatch=s interview with Appellant because the tape contains hearsay statements concerning Appellant=s alleged involvement in the murder. The State contends the statements were not offered for the truth of the matter asserted and therefore are not hearsay.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Conversely, a statement not offered for the truth of the matter asserted is not hearsay. See id. A trial court=s ruling on a hearsay objection will be upheld, absent an abuse of discretion. See Coffin v. State, 885 S.W.2d 140, 149 (Tex. Crim. App. 1994).

At trial, Appellant lodged a hearsay objection to Hatch=s statements on the audiotape that Glen Wilbanks, a participant in the murder, had said Appellant was also involved. The trial court overruled Appellant=s objection on the ground that the statements were not hearsay because they were offered, not for the truth of the matter asserted, but to show why the investigation focused on Appellant. Prior to playing the tape for the jury, the trial court gave the following instruction:

I am instructing you right now that you are not to consider those statements that a third person made for any reason other than why the investigation was focusing on [Appellant] at that time. In other words, you=re not to consider those statements to be true or to be proof of anything other than why law enforcement was focusing their investigation on [Appellant] at that time.

A similar instruction was included in the jury charge.

A statement showing why the investigation focused on a particular individual is not hearsay if, as here, it is not offered for the truth of the matter asserted. E.g., Cano v. State, 3 S.W.3d 99, 110 (Tex. App.CCorpus Christi 1999, pet. ref=d); Cormier v. State, 955 S.W.2d 161, 162 (Tex. App.CAustin 1997, no pet.). Therefore, the trial court did not abuse its discretion in overruling Appellant=s hearsay objection. Appellant=s second issue is overruled.

Extraneous Offense

In his third issue, Appellant contends that the trial court abused its discretion when it allowed witness Sandra Wells (AWells@) to testify that Clark had threatened her children. The State contends, in part, that Appellant waived this issue by failing to make a timely objection. We agree.

To preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific objection. Tex. R. App. P. 33.1(a)(1)(A). To be timely, an objection must be raised Aat the earliest opportunity,@ or Aas soon as the ground of objection becomes apparent.@ Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990) (citations omitted). AUsually, in the taking of testimony of a witness[,] an objection is apparent as soon as the question is asked, since the question is likely to indicate that it calls for inadmissible evidence. Then counsel must, if opportunity afford, state his objection before the witness answers.@ Girndt v. State, 623 S.W.2d 930, 935 (Tex. Crim. App. 1981) (citing McCormick on Evidence ' 52 (1972 ed.)).

In the case at hand, the State called Wells to testify about events that occurred in the home of the victim on the day of the murder. During direct examination, the following exchange occurred:

PROSECUTOR: At any time during that period did B were you threatened?

WELLS: Yeah.

PROSECUTOR: Who threatened you?

WELLS: Pretty much everybody. They just told me to keep my mouth shut or they would kill my kids.

PROSECUTOR: Keep your mouth shut or what?

WELLS: Or they would kill my kids.

PROSECUTOR: Who specifically told you that?

WELLS: Al [Appellant]. Floyd . . .

On redirect, the prosecutor asked Wells if Appellant ever made specific threats against her children. Wells answered, AYes, sir,@ and defense counsel objected Ato the extraneous offense.@ However, the State had already elicited the same testimony during direct examination. Therefore, the objection was untimely and did not preserve the issue for our review. See Girndt, 623 S.W.2d at 935. Appellant=s third issue is overruled.

Conclusion

Having overruled Appellant=s first, second, and third issues, the judgment of the trial court is affirmed.

SAM GRIFFITH

Justice

Opinion delivered May 5, 2004.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(DO NOT PUBLISH)