Craig Lyndon Bell v. State ( 2018 )


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  •                                                                                ACCEPTED
    06-17-00190-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    6/1/2018 11:30 PM
    DEBBIE AUTREY
    CLERK
    Cause No. 06-17-00190-CR
    FILED IN
    6th COURT OF APPEALS
    In the Court of Appeals          TEXARKANA, TEXAS
    6/4/2018 9:01:00 AM
    Sixth District of Texas           DEBBIE AUTREY
    Clerk
    Texarkana, Texas
    CRAIG LYNDON BELL, APPELLANT
    V.
    STATE OF TEXAS, APPELLEE
    On Appeal from the County Court at Law
    Panola County, Texas
    Trial Court Cause No. 2016-C-0325
    APPELLEE’S BRIEF
    ______________________________
    GENA BUNN
    ORAL ARGUMENT                        Texas Bar No. 00790323
    NOT REQUESTED
    Gena Bunn, PLLC
    P.O. Box 6150
    Longview, Texas 75608
    gbunn@genabunnlaw.com
    (903)804-4003
    ATTORNEY FOR APPELLEE
    IDENTITY OF PARTIES AND COUNSEL
    Appellant                               Craig Lyndon Bell
    Appellee                                State of Texas
    Appellant’s Trial Counsel               Kyle Dansby
    SBOT No.: 24059180
    P.O. Box 1914
    Marshall, Texas 75761
    (903) 738-6162
    Appellee’s Trial Counsel                Danny Buck Davidson
    SBOT No.: 0543080
    Katie Nielson
    SBOT No.: 24032791
    108 South Sycamore, Room 301
    Carthage, Texas 75633
    Appellant’s Appellate Counsel           Clay Dean Thom
    SBOT No.: 24088520
    15344 West State Highway 21
    Douglass, Texas 75943
    (936) 715-7144
    Appellee’s Appellate Counsel            Gena Bunn
    SBOT No.: 00790323
    P.O. Box 6150
    Longview, Texas 75608
    (903) 804-4003
    ii
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL ............................................................... ii
    INDEX OF AUTHORITIES................................................................................... iv
    STATEMENT OF FACTS...................................................................................... 1
    SUMMARY OF THE ARGUMENT ......................................................................... 5
    ARGUMENT ...................................................................................................... 7
    I.       The trial court did not abuse its discretion by denying Bell’s
    motion to suppress his inculpatory statements to law
    enforcement without first reviewing the videotaped interviews
    from which those statements were derived. ............................... 7
    A. Bell failed to preserve error regarding the trial court’s
    decision not to view the videotaped interviews .................. 12
    B. Assuming the point of error was preserved, the trial court did
    not abuse its discretion by declining to view the videos..... 14
    C. Any error was harmless beyond a reasonable doubt........... 15
    CONCLUSION AND PRAYER ............................................................................ 17
    CERTIFICATE OF SERVICE ............................................................................... 18
    CERTIFICATE OF COMPLIANCE ....................................................................... 18
    iii
    INDEX OF AUTHORITIES
    CASES
    Arizona v. Fulminante, 
    499 U.S. 279
    (1991). ..........................................................16
    Bailey v. State, 
    281 S.W.3d 29
    (Tex. App. – El Paso 2005) ...................................16
    Bekendam v. State, 
    441 S.W.3d 295
    (Tex. Crim. App. 2014) .................................12
    Brady v. Maryland, 
    373 U.S. 83
    (1963) ..................................................................15
    Campbell v. State, 
    325 S.W.3d 223
    (Tex. App. – Fort Worth 2010) ......................16
    Douds v. State, 
    472 S.W.3d 670
    (Tex. Crim. App. 2015) .......................................12
    Everitt v. State, 
    407 S.W.3d 259
    (Tex. Crim. App. 2013).......................................12
    Goodspeed v. State, 
    187 S.W.3d 390
    (Tex. Crim. App. 2005) ...............................15
    Lankston v. State, 
    827 S.W.3d 907
    (Tex. Crim. App. 1992) ...................................12
    London v. State, 
    490 S.W.3d 503
    (Tex. Crim. App. 2016) .....................................12
    Miranda v. Arizona, 
    384 U.S. 436
    (1966) ...........................................................8, 10
    Neal v. State, 
    256 S.W.3d 264
    (Tex. Crim. App. 2008) ............................................7
    Ovalle v. State, 
    13 S.W.3d 774
    (Tex. Crim. App. 2000). ........................................16
    Pena v. State, 
    353 S.W.3d 797
    (Tex. Crim. App. 2011) .........................................12
    Rothstein v. State, 
    267 S.W.3d 366
    (Tex. App. – Houston [14th Dist.] 2008).........13
    Shepherd v. State, 
    273 S.W.3d 681
    (Tex. Crim. App. 2008) ....................................
    7 Wilson v
    . State, 
    71 S.W.3d 346
    (Tex. Crim. App. 2002) ........................................13
    STATUTES
    Tex. Penal Code § 12.42(d) .......................................................................................3
    RULES
    Tex. R. App. P. 44.2(a). ...........................................................................................16
    Tex. R. App. P. 33.1(a) ..................................................................................... 12, 13
    Tex. R. App. P. 9.4(i)(1) ..........................................................................................18
    Tex. R. App. P. 9.4(i)(2)(B) .....................................................................................18
    Tex. R. App. P. 9.5...................................................................................................18
    Tex. R. Evid. 103(a)(1) ............................................................................................12
    iv
    STATEMENT OF FACTS
    Guilt-Innocence Phase
    Early on the morning of November 10, 2016, Khurrum “Chris” Chaudhry had
    just opened and was preparing breakfast at Clayton General Store, the convenience
    store he owned and operated on the outskirts of Panola County. 3 RR 1 33-34. He
    heard the chime on the front door and turned around to see a man whom he did not
    know 2 enter the store wearing a black jacket, black jeans, and a black hat, his face
    covered with a black bandana. 3 RR 34-35, 48; see also 3 RR 24. Chaudhry asked
    the man to remove the bandana, but he did not. 3 RR 35-37. Instead, the man pointed
    a handgun in Chaudhry’s face and demanded: “If you don’t want to die, give me all
    the money you have.” 3 RR 37. Fearing for his life, Chaudhry removed the cash
    drawer from the register and placed it on the counter; the masked man removed the
    cash from the drawer, about $500 to $600. 3 RR 38-40, 41-42, 66. The masked man
    then proceeded to pull out the telephone lines and credit card machine wires behind
    the counter. 3 RR 40.
    Chaudhry saw the masked man leave the store, turn to the right, and walk
    along the side of the store toward the back of the building. 3 RR 43. Ten to fifteen
    1
    “CR” refers to the Clerk’s Record of pleadings and orders filed with the district clerk in the course
    of the proceedings in the trial court, followed by citation to page numbers. “RR” refers to the
    Reporter’s Record of transcribed trial proceedings, preceded by citation to volume number and
    followed by citation to page numbers.
    2
    Chaudhry testified that most of his early-morning customers were regulars with whom he was
    well acquainted. 3 RR 34.
    seconds later, Chaudhry walked out of the store and saw the man fleeing the scene
    on a motorcycle. 3 RR 43; 3 RR 26. Chaudhry then called the police. 3 RR 44.
    Later that day, Bell was involved in a motorcycle accident in Garrison, in
    neighboring Nacogdoches County. 3 RR 107. Noting that the motorcycle Bell was
    riding (which was registered in his name) was similar to the one reported to have
    been driven by the perpetrator of the Clayton General Store robbery, law
    enforcement identified Bell as a suspect. 3 RR 86, 94-95, 107; SX 6, 14, 15. They
    located Bell at a house in Garrison, where he was staying with a friend. 3 RR 86.
    They searched the residence and found clothing – a black jacket, bandana,
    motorcycle gloves, a black and white motorcycle helmet – that matched Chaudhry’s
    description of the clothing worn by his assailant.3 3 RR 92-96; SX 7-10. An
    unknown amount of cash was recovered from Bell’s person. 3 RR 94, 97, 116, 135.
    No weapon was ever recovered. 3 RR 29, 102, 104, 128, 163.
    Although Chaudhry was unable to identify Bell as the perpetrator because of
    the bandana covering his face, he did positively identify the jacket seized from the
    home where Bell was staying as the jacket worn by the perpetrator during the
    robbery. 3 RR 38, 63-65; SX 10. He also identified the helmet and gloves seized
    at the home as those worn by the masked man. 3 RR 64-65; SX 7, 8, 9. And he
    3
    Bell identified the clothing as his. 3 RR 99.
    2
    identified the motorcycle recovered by law enforcement (which was registered to
    Bell) as the one he had seen the masked man drive off on. 3 RR 63-64; SX 6.4
    After his arrest, Bell was questioned by law enforcement. 3 RR 123, 155. He
    initially denied any involved in the armed robbery, but ultimately admitted to
    robbing Chaudhry. 3 RR 125-127, 147-148, 155-158. He did claim, however, that
    he used a BB gun or an air pistol, not a firearm. 3 RR 142-143, 158.
    Sentencing Phase
    Bell’s sentencing range – which would have been five to 99 years or life –
    was enhanced to 25 years to life pursuant to Section 12.42(d) of the Texas Penal
    Code in light of two prior felony convictions. 4 RR 5; CR 11. At the sentencing
    hearing on September 25, 2017,5 the State presented evidence of seven prior felony
    convictions: (1) a 2005 Nacogdoches County conviction for burglary of a habitation,
    a second-degree felony for which Bell was sentenced to four years in the Texas
    Department of Criminal Justice, Correctional Institutions Division; (2) a 2006
    Nacogdoches County conviction for unauthorized use of a motor vehicle, a state jail
    felony for which Bell was sentenced to six months state jail; (3) a 2009 Nacogdoches
    County conviction for theft, a state jail felony for which Bell was sentenced to nine
    4
    Another witness passing by Clayton General Store that morning saw a man wearing black exit
    the store, walk around behind the building, and get on a motorcycle. 3 RR 70. He positively
    identified the helmet recovered by law enforcement as the one worn by the man he saw, and he
    testified that the motorcycle and clothing recovered by law enforcement were similar to what he
    had seen that morning. 3 RR 71-72.
    5
    Bell elected to have the trial court assess sentence. CR 95.
    3
    months state jail; (4) a 2011 Nacogdoches County conviction for theft, a state jail
    felony offense for which Bell was sentenced to 18 months state jail; (5) another 2011
    Nacogdoches County conviction for theft, a state jail felony for which Bell was
    sentenced to 18 months state jail; (6) a 2011 Angelina County conviction for
    unauthorized use of a motor vehicle, a state jail felony for which Bell was sentenced
    to 15 months state jail; and (7) a 2018 Angelina County conviction for robbery, a
    first-degree felony offense for which Bell was sentenced to three years in TDCJ-
    CID. 4 RR 9-10; SX 1-7.
    The State also presented evidence of two unadjudicated offenses that Bell was
    alleged to have committed while out on bond for the instant offense: a theft on
    March 14, 2017, and a robbery on June 29, 2017, both in Angelina County. 4 RR
    72-74; 4 RR 12-20, 36-38, 49; SX 9. Bell was also a suspect in grocery store thefts
    in Alto, Timpson, Tatum, and Nacogdoches. 4 RR 57, 66-67.
    Katherine Bell, Bell’s mother testified that Bell had family members who
    supported him, including an 18-year-old daughter who is a freshman in college. 4
    RR 81-82. According to Ms. Bell, Bell has been in and out of jail and prison for
    most of his adult life, but when he was out, he was a hard worker. 4 RR 83-85. She
    also opined that Bell’s criminal behavior was attributable to his struggle with drugs,
    particularly crack cocaine. 4 RR 85- 87.
    4
    The trial court assessed a sentence of 45 years in the Correctional Institutions
    Division of the Texas Department of Criminal Justice, to run concurrently. 4 RR
    108-109; CR 114, 1121.
    SUMMARY OF THE ARGUMENT
    The trial court did not abuse its discretion by denying Bell’s motion to
    suppress his inculpatory statements to law enforcement without first reviewing the
    videotaped interviews from which those statements were derived.
    As an initial matter, Bell failed to preserve error regarding this issue. Bell
    never argued at trial that he was entitled to have the trial court review the videotaped
    interviews before ruling on the suppression motion. In fact, the record shows that
    Bell acquiesced to the trial court’s decision not to review the videotaped interviews
    unless and until the suppression hearing testimony compelled it. And Bell did not
    offer the videotaped interviews into evidence during the suppression hearing. Bell’s
    argument on appeal does not comport with his objection at trial, thus this point of
    error must be overruled as not properly preserved.
    Moreover, even if Bell had preserved this point of error for review, the trial
    court did not abuse its discretion by denying the motion to suppress Bell’s
    inculpatory statements with reviewing the videotaped interviews. The record refutes
    Bell’s speculative assertions that the videos contained any evidence that the district
    attorney communicated with Bell by telephone during the November 14th interview.
    5
    It was within the trial court’s discretion to credit the investigators’ testimony and
    find Bell’s statements were voluntarily given.
    Finally, in light of the overwhelming evidence proving that Bell was the
    masked man who robbed Chris Chaudhry at gunpoint, the admission of his
    inculpatory statement to law enforcement did not contribute to his conviction. Thus,
    any error in the admission of that statement was harmless beyond a reasonable doubt.
    For all the above reasons, this Court should affirm the judgment of the court
    below.
    6
    ARGUMENT
    I.     The trial court did not abuse its discretion by denying Bell’s
    motion to suppress his inculpatory statements to law
    enforcement without first reviewing the videotaped
    interviews from which those statements were derived.
    The trial court did not abuse its discretion when it denied Bell’s motion to
    suppress his inculpatory statements to law enforcement.
    Bell correctly notes that a trial court’s denial of a motion to suppress is
    reviewed under an abuse-of-discretion standard and that the trial court is the
    exclusive trier of fact and judge of the witnesses’ credibility. See Brief of Appellant
    at 6 (citing Shepherd v. State, 
    273 S.W.3d 681
    , 684 (Tex. Crim. App. 2008); Neal v.
    State, 
    256 S.W.3d 264
    , 281 (Tex. Crim. App. 2008)).
    No doubt recognizing the futility of arguing that the trial court abused its
    discretion by crediting the testimony of two sheriff’s department investigators over
    that of Bell, Bell argues that the trial court abused its discretion by denying the
    suppression motion without first viewing the videotaped interviews from which
    Bell’s inculpatory statements were derived. But Bell failed to preserve this point of
    error for appellate review. In any event, the claim is meritless.
    Hearing on Motion to Suppress
    Two before days before trial, Bell filed a motion to suppress his inculpatory
    statements; significantly, however, the motion did not challenge the voluntariness of
    7
    Bell’s confession, but only questioned whether the requisites of Miranda v. Arizona6
    were met. CR 12, 13 at ¶ 4. At the suppression hearing, conducted after jury
    selection, Bell argued that his inculpatory statements to law enforcement were
    inadmissible because they were involuntary; Bell did not dispute compliance with
    Miranda. 2 RR 97, 99-101. The gist of Bell’s argument was that Bell’s confession
    was rendered involuntary by an alleged intervention of the Panola County District
    Attorney during the course of the interview.
    It appears that at the outset of the hearing, both Bell’s counsel and the trial
    judge believed that the judge would review the videos in advance of the suppression
    hearing, due at least in part to the fact that the videos contained objectionable
    extraneous-offense evidence. 2 RR 96-99. However, the State then indicated that it
    did not intend to offer the videos themselves but only the officers’ testimony relating
    Bell’s inculpatory oral statements. 2 RR 99-101. The trial court noted that it would
    nonetheless have a duty to review the videos if they contained “exculpatory
    evidence.” 2 RR 102.
    The trial court questioned Bell’s counsel specifically regarding whether the
    videos contained evidence relevant to his voluntariness argument. 2 RR 102-103.
    Court:         Do you feel that those tapes create an exculpatory area?
    6
    Miranda v. Arizona, 
    384 U.S. 436
    (1966) (holding that certain warnings must be given by law
    enforcement before questioning an individual in custody in order to protect that individual’s Fifth
    Amendment right not to incriminate himself).
    8
    Counsel:      My client does not believe that the statements that he made
    to law enforcement were freely and voluntarily given, and
    therefore, if they’re not, then they should not come in, and
    then the State would have to –
    Court:        Well, I mean, --
    Counsel:      -- enter evidence –
    Court:        -- that’s a statement. But, I mean, that’s not answering my
    question.
    Counsel:      Okay.
    Court:        Are there things in the tape?
    Counsel:      The, the main thing that I see as “exculpatory” is the fact
    that he, he denies that, and they continue to go through
    with that. In terms of have I seen something that the State
    has said, well, we can show that he was at another place,
    hypothetically, that I have not been, been given. So I may
    not understand the, the Court’s question myself.
    Court:        Well –
    Counsel:      Because, I mean, they want to put on a State, a witness
    who is going to say “Hey, he ultimately said he did it.”
    Court:        Is there anything in those tapes that shows that the
    statement was not voluntarily given?
    Counsel:      Well, my client can testify as to that, Your Honor.
    2 RR 102-103. The trial court then stated, “And if . . . it leads into the tapes, we’ll
    go to the tapes,” and Bell’s counsel agreed. 2 RR 104.
    Chris Welk and Jeff Ivy, investigators with the Panola County Sheriff’s
    Office, testified at the suppression hearing regarding their questioning of Bell. They
    9
    administered the Miranda warnings to Bell, and Bell indicated to them that he
    understood them. 2 RR 110, 124-125. Bell was questioned first on November 10th,
    the day he was arrested; during that initial interview, Bell denied any involvement
    in the armed robbery at Clayton General Store. 2 RR 111-112, 114, 128. Bell was
    questioned again on November 14th, by which time law enforcement had developed
    additional evidence with which to confront him. 2 RR 128-129. During that
    interview as well, Bell first denied any involvement in the crime. 2 RR 111-112,
    126. But after a cigarette break, during which Bell and the officers discussed Bell’s
    use of methamphetamine, Bell returned to the interview room and admitted to
    investigators that he had committed the robbery. 2 RR 112-113, 119, 121, 126-127,
    129-131. Investigator Welk did not recall anyone else talking to Bell over the
    telephone during the November 14th interview. 2 RR 120-121. Investigator Ivy
    recalled a telephone call made to Kevin Jones, one of the investigators with the
    Panola County District Attorney’s Office, at some point during the interview; but
    Ivy did not testify about the substance of the call or whether Jones ever spoke to
    Bell. 2 RR 130.
    Bell testified at the suppression hearing.       He claimed to have little
    understanding of his Miranda rights despite his admittedly lengthy criminal history.
    2 RR 141-143, 149-153. He testified that during his cigarette break in the middle of
    the November 14th interview, the officers queried him about the identities of local
    10
    drug dealers.    2 RR 145.      Bell also testified that, during the interview, the
    investigators telephoned an individual named “Bucky,” who they claimed was the
    district attorney. 2 RR 146-147. Bell testified that the officers then put him on the
    telephone with “Bucky,” who told Bell, “we know you done this. You go ahead and
    comply with my officers. It’s going to be like a little slap on the wrist.” 2 RR 147-
    148. Bell claimed that he would not have confessed to the armed robbery had it not
    been for this communication with “Bucky,” whom he believed to be the district
    attorney. 2 RR 148.
    The State then recalled Investigator Welk to the stand, and Welk denied
    telephoning the district attorney during his questioning of Bell in the interview room.
    2 RR 157.
    Prosecutor: If you called either one of us, it would be on videotape,
    wouldn’t it?
    Welk:         Yes, ma’am.
    2 RR 157. On cross examination, Welk agreed that there may have been a call made
    to an investigator in the district attorney’s office at some point during the interviews.
    2 RR 158. But he denied that he or anyone from the district attorney’s office ever
    told Bell that he would only get “a slap on the wrist” if he confessed to the offense.
    2 RR 158-159. Bell’s counsel rested and closed without offering the videos. 2 RR
    156. The trial court denied Bell’s suppression motion. 2 RR 159.
    11
    A.     Bell failed to preserve error regarding the trial court’s
    decision not to view the videotaped interviews.
    As an initial matter, Bell has failed to preserve error regarding this claim. To
    preserve a complaint for appellate review, a party must have presented to the trial
    court a timely request, objection, or motion that states 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); Douds v. State, 
    472 S.W.3d 670
    , 674 (Tex.
    Crim. App. 2015). Further, the trial court must have ruled on that request, objection,
    or motion, either expressly or implicitly, or the complaining party must have
    objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v.
    State, 
    407 S.W.3d 259
    , 262-63 (Tex. Crim. App. 2013). An objection must be made
    as soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1);
    London v. State, 
    490 S.W.3d 503
    , 507 (Tex. Crim. App. 2016); Pena v. State, 
    353 S.W.3d 797
    , 807 (Tex. Crim. App. 2011).
    To preserve error for appellate review, the complaining party must “let the
    trial judge know what he wants, why he thinks himself entitled to it, and . . . do so
    clearly enough for the judge to understand him at a time when the trial court is in a
    proper position to do something about it.” Lankston v. State, 
    827 S.W.3d 907
    , 909
    (Tex. Crim. App. 1992); see also Bekendam v. State, 
    441 S.W.3d 295
    , 300 (Tex.
    Crim. App. 2014). While courts are not hyper-technical in their examination of error
    preservation, the point of error on appeal must comport with the objection made at
    12
    trial. 
    Bekendam, 441 S.W.3d at 300
    ; Wilson v. State, 
    71 S.W.3d 346
    , 349 (Tex.
    Crim. App. 2002).
    Nothing from Bell’s written suppression motion, the exchanges during the
    suppression hearing, or the trial court’s ruling suggests that it was apparent that Bell
    made (or that the trial court ruled on) an argument that he was entitled to have the
    trial court review the videotaped interviews before ruling on the suppression motion.
    In fact, the record shows that Bell’s counsel acquiesced to the trial court’s decision
    not to review the videotaped interviews unless and until the suppression hearing
    testimony compelled it. 2 RR 104. And Bell’s trial counsel did not offer the
    videotaped interviews into evidence during the suppression hearing. 2 RR 156.
    Bell’s argument on appeal does not comport with any objection he raised in
    his written suppression motion or at the suppression hearing. Thus, Bell forfeited
    this point of error, and the point of error must be overruled. See Tex. R. App. P.
    33.1(a); see also Rothstein v. State, 
    267 S.W.3d 366
    , 373-74 (Tex. App. – Houston
    [14th Dist.] 2008, pet. ref’d) (concluding that because a defendant’s appellate
    argument did not comport with any objection raised in his motion to suppress or
    articulated at the suppression hearing, he failed to preserve error). This Court should
    so find and affirm the judgment of the trial court.
    13
    B.      Assuming the point of error was preserved, the trial court
    did not abuse its discretion by declining to view the videos.
    Further, even if Bell preserved this point of error for review, the trial court did
    not err by denying the motion to suppress without viewing the videotaped
    interviews.
    First, the trial court’s decision not to view the videotaped interviews is
    supported by the record. Specifically, contrary to Bell’s speculative assertions, there
    is nothing in the record to indicate that the videos contained any evidence that the
    district attorney communicated with Bell by telephone during the November 14th
    interview. In fact, the record indicates the opposite. As the prosecutor aptly noted
    in her questioning of Investigator Welk: “If you called either one of us, it would be
    on videotape, wouldn’t it? Yes, ma’am.” 2 RR 157. And Bell’s trial counsel
    declined to offer the videos into evidence at the suppression hearing. 2 RR 156.
    Contrary to Bell’s assertions, it was not “unchallenged that the Panola County
    Criminal District Attorney spoke with” him. See Appellant’s Brief at 15-16. Indeed,
    while Bell testified that he spoke with someone named “Bucky” who the
    investigators told him was the district attorney, the investigators denied that the
    district attorney spoke with Bell during the interview. They further denied that
    anyone told Bell he would only get “a slap on the wrist” if he confessed. It was
    within the trial court’s discretion to credit the investigators’ testimony and find
    Bell’s statements were voluntarily given.
    14
    Also without merit is Bell’s claim that the trial court’s decision somehow
    violated Brady v. Maryland, 
    373 U.S. 83
    (1963) (holding that due process requires
    the State to disclose to the defense evidence favorable to the accused).          See
    Appellant’s Brief at 18. Bell’s trial counsel acknowledged at the suppression
    hearing that the State had furnished him copies of the videotaped interviews prior to
    trial. 2 RR 102. Bell’s trial counsel had ample opportunity to review the videos
    prior to trial, and he ultimately declined to offer them at the suppression hearing, a
    decision this Court must presume was attributable to reasonable strategy. See
    Goodspeed v. State, 
    187 S.W.3d 390
    , 392 (Tex. Crim. App. 2005) (holding that on
    direct appeal, where counsel’s reasons for failing to do something do not appear in
    the record, counsel’s conduct must be presumed reasonable).
    The trial court did not abuse its discretion by denying Bell’s motion to
    suppress his inculpatory statements without viewing the videotaped interviews from
    which those statements were derived. Thus, the Court should affirm the judgment
    of the trial court.
    C.     Any error was harmless beyond a reasonable doubt.
    Finally, even assuming that Bell preserved this claim for appellate review, and
    that the trial court erred by not suppressing the statement, such error was harmless
    beyond a reasonable doubt in light of the record in this case. See Campbell v. State,
    15
    
    325 S.W.3d 223
    , 238-39 (Tex. App. – Fort Worth 2010, no pet.); Bailey v. State, 
    281 S.W.3d 29
    , 37 (Tex. App. – El Paso 2005, no pet.).
    For constitutional error to be harmless, a court must determine “beyond a
    reasonable doubt that the error did not contribute to the conviction or punishment.”
    Tex. R. App. P. 44.2(a). When the constitutional error involves the admission of a
    defendant’s confession, a reviewing court must “exercise extreme caution” before
    determining that the error was harmless. Arizona v. Fulminante, 
    499 U.S. 279
    , 296
    (1991).   Nevertheless, overwhelming evidence can render the admission of a
    defendant’s confession harmless beyond a reasonable doubt        Ovalle v. State, 
    13 S.W.3d 774
    , 785 (Tex. Crim. App. 2000).
    As set forth in the Statement of Facts above, there was a wealth of evidence,
    apart from Bell’s inculpatory statement, proving that Bell was the masked man who
    robbed Chris Chaudhry at gunpoint on November 10, 2016. The black jacket,
    gloves, and motorcycle helmet recovered from the home where Bell was staying,
    items which Bell admitted belonged to him, were positively identified by Chris
    Chaudhry as the clothing worn by his assailant. The motorcycle registered to Bell
    and recovered hours after the robbery in neighboring Nacogdoches County was
    identified by Chris Chaudhry as the motorcycle on which his assailant fled the scene.
    In light of this overwhelming evidence of Bell’s guilt, the admission of his
    inculpatory statement to law enforcement did not contribute to his conviction.
    16
    Thus, any error in the admission of Bell’s inculpatory statement was harmless
    beyond a reasonable doubt, and this point of error should be overruled. This Court
    should, therefore, affirm the judgment of the trial court.
    CONCLUSION AND PRAYER
    Based on the foregoing arguments, the State prays that this Court affirm the
    judgment of the court below.
    Respectfully submitted,
    ___________________________
    GENA BUNN
    Texas Bar No. 00790323
    Gena Bunn, PLLC
    P.O. Box 6150
    Longview, Texas 75608
    gbunn@genabunnlaw.com
    (903) 804-4003
    ATTORNEY FOR APPELLEE,
    The State of Texas
    17
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the foregoing document has
    been delivered by electronic mail to counsel for the Appellant, Clay Dean Thomas,
    on this the 1st day of June, 2018. The document has also been served electronically
    through the electronic file manager pursuant to Rule 9.5 of the Texas Rules of
    Appellate Procedure.
    _____________________________
    GENA BUNN
    CERTIFICATE OF COMPLIANCE
    This brief complies with the type-volume limitations of Tex. R. App. P.
    9.4(i)(2)(B) because it contains 3.916 words, excluding parts of the brief exempted
    by Tex. R. App. P. 9.4(i)(1). This brief complies with the typeface requirements
    because it has been prepared in a proportionally-spaced typeface using Microsoft
    Word in 14-point font.
    ______________________________
    GENA BUNN
    18