Carl Lee Smith v. State ( 2015 )

Affirmed and Memorandum Opinion filed June 16, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00595-CR
CARL LEE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 351st District Court
Harris County, Texas
Trial Court Cause No. 1247979
MEMORANDUM OPINION
Appellant Carl Lee Smith was convicted of the capital murder of the
complainant Curtis Veazie and sentenced to imprisonment for life without the
possibility of parole. Appellant appeals his conviction, raising four issues.
Appellant contends in his first issue that the trial court abused its discretion when it
admitted photographs of the death scene and autopsy over his objection based on
Rule 403 of the Texas Rules of Evidence. We conclude that even if the trial court
abused its discretion when it admitted the challenged photographs, appellant was
not harmed by their admission.
In his second issue, appellant asserts the trial court erred when it denied his
motion for directed verdict because there is legally insufficient evidence placing
him at the scene of the crime. Because appellant’s statements, which were
admitted into evidence, place appellant at the scene of the crime as part of a
conspiracy to rob Veazie, we hold the evidence is legally sufficient to support
appellant’s conviction and therefore the trial court did not err when it denied his
motion for directed verdict. Appellant next argues that the trial court abused its
discretion when it admitted into evidence audio statements appellant made to the
police in January and December 2009 because (1) the January statements were
made while appellant was in custody and without Miranda warnings;1 and (2) the
police denied appellant his right to counsel under both the Fifth and Sixth
Amendments. We overrule this issue because appellant was not in custody at the
time of the January 2009 statements, both the January and December statements
were voluntary, and appellant was not deprived of his right to counsel during any
of his statements.
Finally, appellant contends the evidence is legally insufficient to support the
amount of court costs assessed against him because there is no bill of costs in the
record. We overrule this issue because the bill of costs for the exact amount of the
costs assessed against appellant found in the record provides an adequate basis for
the assessment of court costs against appellant. We therefore affirm the judgment.
BACKGROUND
A. The complainant’s murder
Whitney Shaw, one of the principal witnesses at trial, provided testimony
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
regarding appellant’s conduct before the murder. In January 2009, Whitney lived
in the Hunter Wood apartment complex along with her mother, Cheryl Shaw. The
complex is in eastern Harris County near the Pine Trails neighborhood. Whitney
was dating Darius Bogar. Darius was one of several young men Whitney saw
hanging around the Hunter Wood apartments during that time period. These young
men included Silvanus “Lo” Rene and Cedrick “Turk” Robinson. Whitney also
saw appellant, known as Piper, around the Hunter Wood apartments a few times.
Lo had two different apartments in the Hunter Wood complex and Whitney, along
with many other people, would hang out in them.
On the evening of January 4, 2009, Whitney went to Lo’s apartment to visit
Darius. Darius was not there when Whitney arrived, so she decided to wait for
him. While she was waiting, Whitney saw appellant, Turk, and a male she knew as
Junior, putting on dark clothing and getting guns out of a closet. Whitney testified
that she thought they were getting ready to “go hit a lick” or getting ready “to go
rob somebody.” Whitney testified she saw two guns, one several feet long and the
other about a foot long. According to Whitney, the first gun resembled a
photograph of an AK-47 that she was shown during her trial testimony. The three
men left the apartment around 10:00 p.m. or 11:00 p.m.
In January 2009, complainant Curtis Veazie lived in the Pine Trails
neighborhood in eastern Harris County. Veazie and his wife were having problems
at that time, and as a result Veazie had moved out. Veazie then stayed with his
friend Kenneth Jones in nearby Channelview for a few days.
Veazie worked two jobs and he liked to gamble during his spare time.
Reynaldo Garza testified that Veazie was a regular customer at the eastside game
room where Garza worked. The game room was located in a strip center on
Wallisville Road near the intersection with Uvalde. Garza testified that he saw
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Veazie, alone, at the game room between 10:00 and 11:30 on the evening of
January 4. Garza testified that Veazie always drove an older, white, four-door car.
Garza testified that he left the game room for a while that evening but he
returned to close the game room at about 1:00 a.m. Garza testified that he was
escorting Irma Escobedo, another employee, to her car when he thought he heard
firecrackers. Escobedo said they were not firecrackers but gunshots. Garza
testified that he heard two shots and he thought they came from behind the strip
center. Escobedo got in her car and began to drive toward the exit from the strip
center parking lot. Garza testified that he saw a white car drive out from behind
the strip center, pass in front of Escobedo’s car, and then turn onto Wallisville
Road. The next morning, Garza realized that the white car he had seen driving out
from behind the strip center was Veazie’s. A surveillance camera at an auto repair
business across the street from the strip center captured the two cars leaving the
strip center parking lot at approximately 1:40 a.m. on January 5.
That same morning, Sergeant Michael Holtke, a Harris County Sheriff’s
Department homicide detective, was dispatched to the strip center in response to a
9-1-1 call reporting a dead body. Holtke was the lead detective investigating the
murder. The manager of a washateria in the same strip center as the game room
had called 9-1-1 after an elderly lady searching for cans had discovered a dead
body. Veazie’s body was lying in the alley behind the strip center. There was a
gunshot entrance wound in Veazie’s left forehead, and stippling around the wound
indicated that the bullet had been fired from a relatively short distance. The bullet
created an exit wound in front of Veazie’s right ear. When investigators rolled
Veazie’s body over, they recovered a bullet along with a sock from under Veazie’s
face. Investigators also found a spent 7.62 x 39mm rifle cartridge casing on the
ground. Deputy Bradley Bruns, a firearms expert with the Harris County Sheriff’s
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Department, testified the cartridge had been fired from an AK-47 assault rifle.
The autopsy revealed that Veazie had also suffered multiple blunt-force
trauma to his head. As a result of repeated blows from an unidentified blunt
instrument, Veazie’s left eyeball was partially out of its socket and his right eyeball
was completely out of its socket. There was massive damage to Veazie’s head and
a lot of blood around his body. An investigator who processed the crime scene
testified that the lack of blood on most of Veazie’s clothes indicated he was lying
face down on the concrete paving when he was shot. Shoelaces had been used to
bind Veazie’s ankles and wrists. Investigators also discovered additional shoelaces
around his mouth area. Blood spatter had been sprayed on a nearby wall from an
impact that occurred near ground level. The forensic pathologist who conducted
the autopsy testified that Veazie’s death was consistent with more than one
assailant.
While the homicide investigators were still at the scene of the murder, other
officers discovered Veazie’s car abandoned in a utility right of way near the Pine
Trails neighborhood. The police found Veazie’s wallet on the passenger side of
the vehicle. They also found clothes and a pair of sneakers without shoelaces in
the car’s trunk.
B. The investigation
Cheryl Shaw, Whitney’s mother, ran a small store out of her apartment in
the Hunter Wood apartments. As a result of that activity, and the fact Whitney was
still in high school in 2009, Cheryl was familiar with many of the people who lived
in or hung out at the Hunter Wood apartments. Cheryl testified that she knew
Darius and Turk because they went to high school with Whitney. Cheryl was also
familiar with Lo. Cheryl testified that around the time of the murder, she saw
appellant with Turk and another young man she knew only as Junior. Cheryl went
5
on to testify that she always saw appellant with Turk and Junior. At a point in time
after Veazie’s murder, Turk was standing outside the Shaw apartment when Cheryl
noticed blood on his shoes. After seeing a news report about Veazie’s death and
an invitation to call Crime Stoppers with any information about the murder, Cheryl
called Crime Stoppers.
A large number of Sheriff’s Department officers came to the Hunter Wood
apartments. The officers went door to door looking for people in the apartment
complex and they eventually came upon Cheryl, who was outside with her dog.
Cheryl was reluctant to talk to the officers because all of the people in the complex
were outside as a result of the officers’ activity. Cheryl suggested the officers act
as if they were arresting her so she would have an opportunity to talk to them
without it looking suspicious to her neighbors. In response to Cheryl’s suggestion,
the officers put her in handcuffs and placed her in the back of a police car, where
she talked to the officer. While Cheryl was in the back of the police car, the
officers cleared out one of Lo’s apartments, and she identified one of the people
who came out of the apartment as Turk. Cheryl later traveled to a nearby Sheriff’s
Department substation where she gave a statement to detectives investigating
Veazie’s murder.
Sergeant Holtke and the other detectives investigating Veazie’s death had
learned information about the murder from people in the area that had caused them
to go to the Hunter Wood apartments on January 8, 2009. Prior to that point in
time, Holtke had not yet heard of appellant, Turk, or Junior. Once at the Hunter
Wood apartments, the officers learned about apartment units that were occupied by
several men. The officers also heard the names Turk and Lo. The officers
proceeded to clear out what should have been vacant apartments and Turk was one
of the people they cleared out. He was arrested for capital murder that day. Holtke
6
then interviewed Turk on two different occasions. At that point, Holtke was
looking into a second suspect, known only as Piper. During the interview with
Cheryl at the Sheriff’s Department substation, Cheryl identified Turk in a
photospread and tentatively identified appellant as Piper from one out of a
selection of seventeen photographs of people named Carl Smith.
C. Appellant’s interviews
Having secured an identification of Piper as appellant, Holtke was able to
learn appellant had a court appearance scheduled on another criminal matter on
January 14. Holtke and a second detective went to the courthouse and asked a
bailiff to talk to appellant and bring him back to a jury room where they could
speak with him. The bailiff brought appellant into the jury room where the two
detectives were waiting. Appellant would participate in three recorded interviews
that day.
At the beginning of the first interview, the detectives greeted appellant and
told him “you know you are not in custody or anything.” The detectives then said
they wanted to talk to appellant about an event they were investigating. The
detectives then showed appellant a Crime Stoppers flyer relating to Veazie’s
murder as well as a photo of Veazie’s abandoned car. Appellant initially denied
having seen either Veazie or the car before. The conversation continued until
about six minutes into the interview, when appellant said: “I need, I need a lawyer,
sir. Can I, can I call my lawyer in here?” The following dialogue then occurred:
Detective 1: “Course you can.”
Appellant: “Cause I really. . . know what I’m sayin’?”
Detective 1: “Course you can.”
Appellant: “I really-I-I know what’s up. You know what I’m sayin’?”
7
Detective 1: “You do know what’s up with this?”
Appellant: “Yes, sir, you know what I’m sayin’, but only thing is, you
know what I’m sayin’, they you know. . .”
Detective 1: “If you, Dude, if you were there. . .”
Appellant: “These people. . .”
Detective 2: “Hey, hey, hey. . .”
Appellant: “These people. . .”
Detective 1: “Hey. . .”
Appellant: “These people that I’m dealin’ with. . .”
Detective 2: “Carl, Carl, Carl.”
Detective 1: “Let him finish, he, he, he’s talking.”
Detective 2: “Okay.”
Appellant: “These people man, you know what I’m sayin’, I’m scared of
these people, man, you know what I’m sayin’?”
Detective 1: “Okay.”
Appellant: “They, they, they vicious people man, you know what I’m
sayin? They don’t play no games, man.”
Appellant continued talking with the detectives and explained that the
people he was talking about were gang-related and if he told the police what had
happened, he did not want his name connected with it. With that introduction,
appellant told the detectives that he was visiting his “partner” Lo at the Hunter
Wood apartments when Turk came in the apartment saying he had just killed
somebody.
8
Less than a minute later, which was about nine minutes into the interview,
the following exchange occurred:
Appellant: “Well, know, ‘fore I say anything further man, you know what
I’m sayin’, I really want to get my lawyer up in here.”
Detective 1: “Well, get him.”
Appellant: “So I can understand what’s going on.”
Detective 1: “I mean, you know, that’s. . .”
Detective 2: “Well, here, okay, then that’s fine, but here’s what I’m not
understanding. I’m trying to follow what you’re saying here.
You’re saying you were just told about this?”
Appellant: “Yeah, Turk just came and, you know, we was out and high
when he came and told us.”
Appellant went on to explain that Turk then showed them where he had left
the murdered man’s car. Appellant told the detectives it was the car in the photo
they had shown him at the beginning of the interview. At this point, appellant
admitted that he touched the car when he, and numerous others, went with Turk to
look at the car. Appellant denied that he got inside the car, however. When asked
who else had gone with Turk to see the car, appellant admitted that Junior, his
“little partner,” had gone with him. Appellant denied that Junior had anything to
do with the murder. Appellant also denied knowing Junior’s real name.
Appellant told the detectives that he and the other people who had followed
Turk to the car were upset with Turk for bringing the car to the vicinity of the
Hunter Wood apartments because it would bring the police into the area to
investigate. Sergeant Holtke then told appellant: “you’re not in handcuffs; we’re
not taking you anywhere,” but they needed appellant to tell them everything Turk
9
had told him about the murder. Appellant responded that Turk told him that Turk
had tied Veazie up so he would not run away, and that Turk had killed Veazie
because he would not stop screaming and making noise. Appellant said he did not
know why Turk picked Veazie because “the dude didn’t get nothing. He ain’t got
no rims on his car. He ain’t got nothing. I don’t see nothing he could get out of
him, this man old. I don’t know, man, probably thought the man had a grip on him
or something. Know what I’m saying?”2
The interview continued and appellant told the detectives that in the
organization he is part of, “you don’t snitch on people.” He went on to explain that
he believed in telling the truth. Appellant then changed his story, eventually telling
the detectives that he did not know what Turk was going to do that night. He
explained that he and Junior were not with Turk at first. Turk told them he was
going to “go hit a lick.” Later, appellant and some other people were in a park by
Pine Trails when they heard gunshots and then Turk drove up in a car. Appellant
got into the passenger seat. Turk continued to drive, but the car did not run well,
so they parked it in the spot where the police eventually found it. They then walked
to the Hunter Wood apartments. Once back at the apartments, Turk informed them
that he had shot a man a short time before. At that point, about ten to twelve
people walked back to the car and tried to wipe their fingerprints off the car.
At this point in the interview, someone entered the jury room and said the
attorney is here. Appellant’s attorney on another criminal matter then entered the
jury room and introduced himself. The attorney invoked appellant’s right to
silence and asked if they could take a break so he could speak with appellant. The
attorney went on to say that they could reconvene after the break and appellant
could decide if he wanted to continue talking with the detectives. The first
2
Appellant explained that a “grip” means “a bunch of money.”
10
interview ended at that point, and the detectives left the room.
After appellant had an opportunity to speak with his attorney, the detectives
re-entered the room. Holtke resumed recording and said that appellant’s attorney
had told them that appellant wanted to continue talking with them. During this
second interview, which lasted approximately ten minutes, appellant explained that
he was in a park behind the Pine Trails neighborhood with some females when he
heard gunshots. Appellant saw a car drive up. Turk was driving and he told
appellant and Junior to get in the car. They then drove toward the Hunter Wood
apartments and Turk parked the car where it was later found by the police. The
three of them then walked along a trail in some woods toward the apartments, and
Turk pulled off his pants and attempted to burn them. Turk told them that he had
blood on the pants. When they got to the apartment, Turk told them he had
murdered somebody. Turk then told them he had tied the man up and shot him
with an AK-47 because the man would not be quiet. Lo and others, who were
prominent in a gang, told everyone to be quiet about what they had heard, and then
made threats as to what would happen if they were not. The interview concluded
with the detectives asking appellant if he would be willing to meet with them later
to look at photos to identify the people he had discussed during the interview.
Appellant was not arrested and he left the jury room on his own.
The third interview on January 14 started about one hour after the
conclusion of the second. Sergeant Holtke parked outside the courthouse and
appellant came out and got into Holtke’s vehicle. Appellant identified Turk in a
photo spread and told Holtke the person he identified was the same person who
had shot Veazie. Appellant identified Lo in a second photo spread. The interview
ended when appellant got out of Holtke’s vehicle, less than seven minutes after he
had gotten in.
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Sergeant Holtke and his partner, Sergeant Eric Clegg, interviewed appellant
again on December 3, 2009. Appellant had been convicted on another criminal
charge and was incarcerated at the Baker Street Jail awaiting transportation to a
state jail facility when he was interviewed. Holtke read appellant his Miranda
warnings and asked if he understood them. Appellant responded by asking if he
was being charged with something. Holtke answered no. Appellant asked if he
had a lawyer and Holtke again answered no. Appellant then asked if there was a
warrant, and Holtke again answered no. Holtke then explained that because
appellant was in custody on an unrelated matter, he had to read him his legal
warnings. Appellant then asked why they were talking to him. Holtke responded:
“well, I’ll explain that to you when you want to talk to me.” Appellant responded
“alright” and Holtke proceeded to ask appellant questions.
During the course of the interview, appellant admitted that he, Turk, and
Junior “geared up” that night to “make some bread.” Appellant said that each was
armed but Turk carried an AK-47. The three of them then walked over to the strip
center on Wallisville Road and Turk went behind the center to use the bathroom.
Turk came out and said there was a man asleep behind the building. They walked
behind the building and Turk woke the man up and got him out of his car. They
took Veazie’s wallet and there was nothing in it. Appellant asked “where the bread
at?” Turk then hit Veazie in the face and asked “where the bread at?” Appellant
said he told Turk “look dog[,] look bro[,] that man ain’t got no money, know what
I’m talking about . . . . Man got clothes . . . in his car. . . .” Appellant then told the
detectives that Turk said that Veazie “had seen his face.” Thinking Turk was
going to kill the man, appellant told the detectives he walked out from behind the
strip center and then down Wallisville Road toward the Hunter Wood apartments.
According to appellant, Junior initially stayed with Turk but he came walking up
12
about five minutes later saying Turk was going to murder that man. Soon
thereafter, Turk drove up in the man’s car, picked the two of them up, and then
drove the car to the spot where it was found by the police.
D. Appellant’s trial
Appellant was charged with capital murder. He filed a pre-trial motion to
suppress that sought to exclude all four of his statements. The trial court denied
the motion and filed findings of fact and conclusions of law. The case proceeded
to trial, and the State sought to admit into evidence numerous photographs of the
crime scene and Veazie’s body. Appellant objected to the admission of State’s
Exhibits 8 and 9 as cumulative. Appellant also objected to State’s Exhibits 51, 52,
53, 55, 56, 57, 59, and 60 as cumulative and prejudicial under Rule 403 of the
Texas Rules of Evidence. The trial court overruled the objections and admitted the
photographs into evidence. At the conclusion of the evidence, the jury found
appellant guilty of capital murder and the trial court imposed the mandatory
sentence of life in prison without the possibility of parole. This appeal followed.
ANALYSIS
As mentioned above, appellant raises four issues on appeal. We address
appellant’s second issue first because it challenges the trial court’s denial of his
motion for directed verdict and seeks rendition of a judgment of acquittal.
I. The evidence is sufficient to support appellant’s capital murder
conviction because his own statements place him at the scene of the
murder as a member of a conspiracy to commit robbery.
In his second issue, appellant contends the trial court should have granted
his motion for directed verdict because the evidence is insufficient to support his
capital murder conviction.
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A. Standard of review and applicable law
A challenge to the denial of a motion for directed verdict is a challenge to
the legal sufficiency of the evidence. Gabriel v. State, 290 S.W.3d 426, 435 (Tex.
App.—Houston [14th Dist.] 2009, no pet.). When reviewing the sufficiency of the
evidence, we view all of the evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences therefrom,
whether a rational jury could have found the elements of the offense beyond a
reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)
(citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). In conducting this
review, an appellate court considers all evidence in the record, whether it was
admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013) (citing Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)).
We may not substitute our judgment for that of the jury by reevaluating the
weight and credibility of the evidence. Romero v. State, 406 S.W.3d 695, 697
(Tex. App.—Houston [14th Dist.] 2013, rev’d on other grounds by Romero v.
State, 427 S.W.3d 398, 399 (Tex. Crim. App. 2014)(per curiam)). We defer to the
jury’s responsibility to resolve any conflicts in the evidence fairly, weigh the
evidence, and draw reasonable inferences. Id. The jury alone decides whether to
believe eyewitness testimony, and it resolves any conflicts in the evidence. Id.
The jury may choose to believe some testimony and disbelieve other testimony.
Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). In addition, because it is
the sole judge of the weight and credibility of the evidence, the jury may find guilt
without physical evidence linking the accused to the crime. Romero, 406 S.W.3d
at 697. In conducting a sufficiency review, we do not engage in a second
evaluation of the weight and credibility of the evidence, but only ensure the jury
reached a rational decision. Young v. State, 358 S.W.3d 790, 801 (Tex. App.—
14
Houston [14th Dist.] 2012, pet. ref’d).
A person commits capital murder if he intentionally causes the death of an
individual in the course of committing or attempting to commit robbery. Tex.
Penal Code Ann. §§ 19.02(b)(1), 19.03(a)(2) (West 2011). A person commits
robbery if, in the course of committing theft and with the intent to obtain or
maintain control of the property, he intentionally, knowingly, or recklessly causes
bodily injury to another or intentionally or knowingly threatens or places another
in fear of imminent bodily injury or death. Tex. Penal Code Ann. § 29.02(a)(1)-(2)
(West 2011). Theft is the unlawful appropriation of property with the intent to
deprive the owner of the property. Tex. Penal Code Ann. § 31.03 (West 2011).
Appropriation of property is unlawful if it is without the owner’s effective consent.
Id. § 31.03(b)(1).
A person may be guilty as a party to capital murder if the defendant
committed the offense by his own conduct or by the conduct of another for which
he is criminally responsible. Tex. Penal Code Ann. § 7.01(a) (West 2011); see
Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). “If, in the attempt to
carry out a conspiracy to commit one felony, another felony is committed by one
of the conspirators, all conspirators are guilty of the felony actually committed,
though having no intent to commit it, if the offense was committed in furtherance
of the unlawful purpose and was one that should have been anticipated as a result
of the carrying out of the conspiracy.” Tex. Penal Code Ann. § 7.02(b) (West
2011). A defendant in a capital murder case may be convicted solely on a
conspiracy theory of culpability contained in the jury charge. Love v. State, 199
S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Fuller v.
State, 827 S.W.2d 919, 932-33 (Tex. Crim. App. 1992)). Therefore, the State is
not required to present evidence of a defendant’s intent to kill as long as the
15
evidence establishes that a felony was committed as a result of a conspiracy and
the murder should have been anticipated in carrying out the conspiracy to commit
the underlying felony. Ruiz v. State, 579 S.W.2d 206, 209 (Tex. Crim. App. [Panel
Op.] 1979).
Proof of a culpable mental state invariably depends on circumstantial
evidence. See Heckert v. State, 612 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.]
1981); Martin v. State, 246 S.W.3d 246, 263 (Tex. App.—Houston [14th Dist.]
2007, no pet.). A culpable mental state can be inferred from the acts, words, and
conduct of the accused. Martin, 246 S.W.3d at 263.
We may look to events before, during, and after the commission of the
offense to determine whether there is sufficient evidence that an individual is a
party to an offense. Gross, 380 S.W.3d at 186. We may also consider
circumstantial evidence. Id. “There must be sufficient evidence of an
understanding and common design to commit the offense.” Id. It is unnecessary
that each fact point directly to the guilt of the defendant so long as the cumulative
effect of the facts is sufficient to support the conviction under the law of parties.
Id. “However, mere presence of a person at the scene of a crime, or even flight
from the scene, without more, is insufficient to support a conviction as a party to
the offense.” Id.
B. Sufficient evidence supports appellant’s capital murder
conviction.
A person may be charged with an offense as a principal, a direct party, or a
co-conspirator. See Tex. Penal Code §§ 7.01 (person is “criminally responsible” if
offense is committed by his own conduct or by the “conduct of another for which
he is criminally responsible”); 7.02(a)(2) (describing criminal responsibility for
direct party); 7.02(b) (describing criminal responsibility for party as co-
16
conspirator). Because the evidence offered at trial indicates that Turk shot Veazie,
we consider whether the evidence supports appellant’s conviction as a co-
conspirator. As explained below, we conclude the evidence is sufficient to support
appellant’s conviction as a co-conspirator under section 7.02(b) because the
evidence supports a finding that appellant should have anticipated the possibility of
a murder resulting from the course of committing robbery.
Appellant is guilty of capital murder under section 7.02(b) if (1) he was part
of a conspiracy to rob Veazie; (2) one of the conspirators murdered Veazie; (3) the
murder was in furtherance of the conspiracy; and (4) the murder should have been
anticipated as a result of carrying out the conspiracy. Hooper v. State, 214 S.W.3d
9, 14 n.4 (Tex. Crim. App. 2007). Appellant argues there is no evidence linking
him to Veazie’s murder or establishing that he had an understanding and common
design to commit murder that night. In making this argument, appellant asserts we
must disregard his December 3, 2009 statement because he recanted it during his
trial testimony. Appellant also contends that Whitney Shaw’s testimony about
appellant gearing up with Turk and Junior to go rob people must be discounted
because other witnesses testified that appellant was present at a family party in a
different part of Harris County the night of Veazie’s murder.
We disagree that the evidence, when viewed under the appropriate standard
of review, is insufficient to support appellant’s capital murder conviction. First,
when reviewing sufficiency claims, an appellate court must consider all of the
evidence presented, whether properly or improperly admitted. Ervin v. State, 333
S.W.3d 187, 200 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (citing Fuller,
827 S.W.2d at 931). We therefore consider both appellant’s December 3, 2009
statement as well as Whitney Shaw’s testimony. Appellant’s decision to recant his
statements during his trial testimony and to present several alibi witnesses on his
17
whereabouts on the night of the murder meant that it was up to the jury, as the
exclusive judge of the credibility of the witnesses and the weight to be given their
testimony, to resolve any conflicts and inconsistencies in the evidence and render
its verdict. The jury’s choice to resolve those conflicts and inconsistencies in favor
of the State does not render the evidence insufficient. See Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991) (stating the jury can disbelieve a
witness’s recantation of her prior testimony); Johnson v State, 421 S.W.3d 893,
898 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“Appellant’s own statement
that he did not conspire to rob Vasquez does not render the evidence to the
contrary insufficient.”); see also Cole v. State, 194 S.W.3d 538, 551 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (holding jury is entitled to believe any or all of
testimony of the State’s witnesses and fact it resolved conflicts in the evidence in
favor of the State did not render evidence factually insufficient).
Appellant also is incorrect when he argues there must be evidence that he
had an understanding and common design to commit murder. Instead, all that the
State was required to prove beyond a reasonable doubt was that appellant was part
of a conspiracy to commit another felony—here, robbery. See Ruiz, 579 S.W.2d at
209.
We conclude there is sufficient evidence in the record supporting appellant’s
capital murder conviction. This evidence includes Whitney Shaw’s testimony that
appellant “geared up” along with Turk and Junior to go out and rob people to make
some money the night of Veazie’s murder, indicating a prior plan to commit the
robbery in which appellant participated. Although Shaw saw only two guns that
night, appellant admitted during his statement that all three were armed. Appellant
also admitted during his statement that he knew Turk was crazy, was a “super-
gangster,” was “wired up” on drugs the night of the murder, and was capable of
18
committing violent acts. See Johnson, 421 S.W.3d at 898–99 (explaining that
reason to believe co-conspirator was violent and awareness that co-conspirators
were armed can show that defendant should have anticipated murder occurring in
course of robbery).
Appellant’s statement also ties him directly to the robbery. Appellant told
police during his December statement that he and the other two armed men left the
Hunter Wood apartments and eventually walked behind a nearby strip center where
they found Veazie asleep in his car. Appellant also told the police that they
removed Veazie from his car and that he himself asked, at least one time, where
the “bread” was located. Evidence also showed that Veazie was tied up, an action
the jury could reasonably infer would require more than one person to perform.
Appellant also admitted during his December 3, 2009 statement that he saw Turk
beat Veazie. There was also evidence that Veazie was gagged and ultimately shot
because he would not stop screaming. Although appellant told police during his
statement that he walked away from the scene before Veazie was shot, the jury, as
the trier of fact, was entitled to disbelieve that part of his statement even if it
accepted the remainder. See Chambers, 805 S.W.2d at 461 (stating the jury, as the
trier of fact, is entitled to judge the credibility of witnesses and can believe some,
all, or none of the testimony presented by the parties).
The evidence also showed that Veazie’s assailants took his car and drove it a
short distance away from the scene of the crime. Finally, appellant told the police
during his statements that he, along with a group of about ten to twelve other
people, went back to the car to wipe it down and thereby remove any evidence
indicating that he had touched the vehicle. We conclude that this evidence of
events before, during, and after Veazie’s murder would permit a rational trier of
fact to conclude, beyond a reasonable doubt, that appellant was part of a
19
conspiracy to rob Veazie, that appellant was present at the scene of the murder,
that the murder was committed by one of the conspirators in furtherance of the
conspiracy, and that appellant should reasonably have anticipated the possibility
that a murder might occur during the course of that robbery. Accordingly, we
overrule appellant’s second issue.
II. Appellant was not harmed by the admission of autopsy and crime scene
photographs.
Turning to appellant’s arguments for a new trial, appellant asserts in his first
issue that the trial court abused its discretion when it admitted ten autopsy and
crime scene photographs over his Rule 403 objection.3 According to appellant, the
challenged photographs were needlessly cumulative of other evidence and their
probative value was substantially outweighed by the danger of unfair prejudice.
Assuming without deciding that the trial court abused its discretion when it
overruled his objections and admitted the challenged photographs into evidence,
we conclude that appellant was not harmed as a result.
A conviction will not be reversed “‘merely because the jury was exposed to
numerous admittedly ‘gruesome’ pictures.’” Drew v. State, 76 S.W.3d 436, 453
(Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (quoting Long v. State, 823
S.W.2d 259, 275 (Tex. Crim. App. 1991)). The admission of evidence in violation
of an evidentiary rule is non-constitutional error. Hamilton v. State, 399 S.W.3d
673, 684 (Tex. App.—Amarillo 2013, pet. ref’d) (citing Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998)). The trial court’s erroneous admission
3
Appellant also includes in his first issue an assertion that the trial court’s admission of
these photographs violated his right to a fair trial under the Eighth and Fourteenth Amendments
to the United States Constitution. Appellant does not, however, support this assertion by
providing appropriate citations to the record and legal authority in his discussion of the issue.
We therefore hold he has waived this portion of the issue due to inadequate briefing. See Tex. R.
App. P. 38.1(i).
20
of photographs is harmless if, after reviewing the entire record, we have fair
assurance that the error did not influence the jury or had but a slight effect upon the
jury’s verdict. Rolle v. State, 367 S.W.3d 746, 752 (Tex. App.—Houston [14th
Dist.] 2012, pet. ref’d). In making this determination, an appellate court should
consider the trial testimony and other admitted evidence, the jury instructions, the
State’s theories and any defensive theories, closing arguments, and even voir dire
if applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). The
presence of overwhelming evidence supporting the finding of guilt can also be a
factor in the evaluation of harmless error. Motilla v. State, 78 S.W.3d 352, 357
(Tex. Crim. App. 2002).
As previously discussed, the record contains abundant evidence of
appellant’s guilt. This evidence includes appellant’s December 3, 2009 statement,
in which he confessed to every element of capital murder. In addition, the State
used the challenged photographs to illustrate the specific mechanics of Veazie’s
death, which helped to establish that there was more than one assailant. See
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (holding reviewing
court should consider State’s theory in assessing harm); Samuels v. State, 785
S.W.2d 882, 888 (Tex. App.—San Antonio 1990, pet. ref’d) (considering State’s
purpose for offering autopsy photographs). In addition, the gruesome nature of the
photos stems from the extremely brutal nature of the conspirators’ own criminal
conduct. See Jones v. State, 111 S.W.3d 600, 609 (Tex. App.—Dallas 2003, pet.
ref’d) (considering the brutal nature of the defendant’s criminal conduct in
determination that admission of autopsy photographs was not harmful). Finally,
the State did not once mention the challenged photographs during its closing
argument. See Reese v. State, 33 S.W.3d 238, 244 (Tex. Crim. App. 2000)
(concluding erroneous admission of photographs was harmful in part because State
21
emphasized photographs during closing argument).
We conclude that, in the context of the entire case against appellant, any
error the trial court may have made in admitting the challenged photographs did
not influence the jury or had but a slight effect and therefore did not affect
appellant’s substantial rights. See Drew, 76 S.W.3d at 453. We overrule
appellant’s first issue.
III. The trial court did not abuse its discretion when it denied appellant’s
motion to suppress his January and December statements.
In his third issue, appellant contends that the trial court abused its discretion
when it denied his motion to suppress and admitted into evidence audio recordings
of two of his statements to the detectives investigating Veazie’s murder. Appellant
argues the trial court should have excluded the first statement he made on January
14, 2009 because it resulted from “an un-Mirandized custodial interrogation in
which he invoked his right to counsel and was denied access to counsel.”
Appellant also asserts the trial court should have excluded his December 3, 2009
statement because “it was the result of a Mirandized custodial interrogation in
which [appellant] invoked his right to counsel and was denied access to counsel.”
We address each argument in turn.
A. Standard of review
In reviewing a trial court’s ruling on a motion to suppress, an appellate court
must apply an abuse-of-discretion standard and overturn the trial court’s ruling
only if it is outside the zone of reasonable disagreement. Martinez v. State, 348
S.W.3d 919, 922 (Tex. Crim. App. 2011). We must view the evidence in the light
most favorable to the trial court’s ruling. Weide v. State, 214 S.W.3d 17, 24 (Tex.
Crim. App. 2007). At a suppression hearing, the trial judge is the sole trier of fact
and assesses the witnesses’ credibility and decides the weight to give to that
22
testimony. Id. at 24–25. When, as here, the trial court makes explicit fact findings,
we determine whether the evidence, when viewed in the light most favorable to the
ruling, supports those fact findings. State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006). We then review the trial court’s legal rulings de novo unless its
explicit fact findings that are supported by the record are also dispositive of the
legal ruling. Id. We uphold the ruling if it is supported by the record and correct
under any theory of the law applicable to the case. Hereford v. State, 339 S.W.3d
111, 117–18 (Tex. Crim. App. 2011).
Generally, we limit the scope of our review to the evidence adduced at the
suppression hearing because the ruling was based on it rather than evidence
introduced later. Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007);
Turner v. State, 252 S.W.3d 571, 577 (Tex. App.—Houston [14th Dist.] 2008, pet.
ref’d). But, when, as here, the parties re-litigate the suppression issue at trial, we
consider all evidence from both the pre-trial suppression hearing and the trial in
reviewing the trial court’s determination. See Gutierrez, 221 S.W.3d at 687;
Turner, 252 S.W.3d at 577.4
B. Because appellant was not in custody during his first January
2009 statement, the trial court did not abuse its discretion when it
denied appellant’s motion to suppress the statement.
Appellant argues the trial court should have suppressed the audio recording
of his initial interview on January 14, 2009 because (1) he was in custody, (2) he
invoked his right to counsel during the interview, and (3) the detectives denied him
access to his attorney and continued to question him. In support of his contention
that he was in custody during the initial interview, appellant points out that he was
4
Arguably, this review should include only trial evidence up to the point in the trial when
the court made its final ruling on the suppression issue. We need not resolve this scope question,
however, because the parties do not argue that it affects the outcome of our analysis in this case.
23
taken to a jury room by an armed bailiff, the jury room was in a non-public area of
the courthouse, he was interviewed by two armed detectives, and other people
were denied entry into the room during the interview. Appellant also points to his
testimony that he subjectively believed he was under arrest and was not free to
leave the jury room.
In Miranda, the Supreme Court of the United States held that “the
prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
384 U.S. at 444. Texas codified these safeguards in article 38.22 of the Texas
Code of Criminal Procedure. Section 3(a) of article 38.22 provides that no oral
statement of an accused “made as a result of custodial interrogation” shall be
admissible against him in a criminal proceeding unless an electronic recording of
the statement is made, the accused is given all specified warnings, including the
Miranda warnings, and he knowingly, intelligently, and voluntarily waives the
rights set out in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22 § 3(a) (West
2005).
Miranda warnings and article 38.22 requirements are mandatory only when
there is a custodial interrogation, however. Herrera v. State, 241 S.W.3d 520, 526
(Tex. Crim. App. 2007). The meaning of “custody” is the same for purposes of
both Miranda and article 38.22. Id. The State has no burden to show compliance
with Miranda unless and until the record as a whole “clearly establishes” that the
defendant’s statement was the product of a custodial interrogation. Id.
Generally, a person is considered to be in custody for purposes of Miranda
and article 38.22 when: (1) the person is formally arrested; or (2) the person’s
freedom of movement is restrained to the degree associated with a formal arrest.
24
Nguyen v. State, 292 S.W.3d 671, 677 (Tex. Crim. App. 2009). Because it is
undisputed that appellant was not formally under arrest during any of his January
2009 statements, the issue here turns on whether a reasonable person would have
felt that he was not at liberty to terminate the interview and leave. Nguyen, 292
S.W3d at 678; Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)
(citing Stansbury v. California, 511 U.S. 318, 322 (1994)). Our custody inquiry
includes an examination of all the objective circumstances surrounding the
questioning. Herrera, 241 S.W.3d at 525. The subjective belief of law
enforcement officers about whether a person is a suspect does not factor into the
custody determination unless that officer’s subjective belief has been conveyed to
the person being questioned. Id. at 525–26.
Here, the interview occurred in a jury room in the Harris County criminal
courthouse, where appellant had appeared in connection with another criminal
matter. Appellant was brought to the jury room by a bailiff and there were two
plain-clothes detectives in the room waiting for him. Both detectives were armed,
but they did not display their weapons during the interview. The complete
interview was recorded and is contained in the appellate record. The detectives
explicitly told appellant at the beginning of the interview that he was not in
custody. Similarly, one of the detectives reminded appellant later in the interview
that appellant was not in handcuffs and the detectives were not going to take him
anywhere. In addition, when appellant asked if he could call the lawyer
representing him in the other criminal matter into the room, the detectives told him
that he could. Shortly thereafter, when appellant said he wanted to get his lawyer,
the detectives told him to go get him. Appellant did not, but instead continued
talking with the detectives. Appellant’s subjective belief that he was under arrest
and was not free to terminate the interview and leave the jury room is not relevant
25
to our analysis. See Dowthitt, 931 S.W.2d at 254.
Appellant’s lawyer eventually arrived at the jury room. The lawyer was
allowed into the jury room and he asked for a break to speak with appellant. When
the lawyer asked if there was a warrant out for appellant, the detectives denied
there was. The attorney then told the detectives that if appellant wanted to
continue talking with them, the interview could continue after the break. The first
interview ended at that point in time. The second interview started a few minutes
later. Sergeant Holtke began the second interview by stating that appellant’s
attorney had told them that appellant wanted to continue talking with them.
Appellant did not disagree and participated in the interview. At the end of the
second interview, appellant was allowed to leave the jury room. The third
interview occurred later the same day, when appellant exited the courthouse and
voluntarily got into Holtke’s vehicle to look at photo spreads. At the end of that
brief interview, appellant was allowed to leave Holtke’s vehicle.
The trial court found that appellant voluntarily participated in all of his
interviews with the detectives investigating Veazie’s murder. It further concluded
that appellant was not in custody during the January 2009 statements. Applying
the appropriate standard of review, we conclude that the record, summarized
above, supports the trial court’s conclusion that appellant’s first January 2009
interview was not the product of a custodial interrogation. See Turner, 252 S.W.3d
at 582. Because the first January interview was not a custodial interrogation, we
need not further address whether appellant adequately invoked his right to counsel,
which would have required the detectives to stop the interview until appellant had
the opportunity to talk with an attorney. See Estrada v. State, 313 S.W.3d 274, 296
(Tex. Crim. App. 2010) (“The need to scrupulously honor a defendant’s invocation
of Miranda rights does not arise until created by the pressures of a custodial
26
interrogation.”). We therefore hold the trial court did not abuse its discretion
when it denied appellant’s motion to suppress his first January 2009 statement.
C. The trial court did not abuse its discretion when it denied
appellant’s motion to suppress his December 2009 statement
because he did not unambiguously invoke his right to counsel.
Appellant next asserts that the trial court abused its discretion when it
refused to suppress his December 3, 2009 statement. According to appellant, the
trial court should have suppressed the December statement because (1) the
statement was made during a custodial interrogation; (2) he did not waive his rights
but instead adequately invoked his right to counsel during the January and
December interviews; (3) the detectives then denied him access to an attorney; and
(4) the detectives continued with the interview anyway.5 According to appellant,
the detectives’ conduct violated his Fifth Amendment right to counsel. Appellant
also argues that the trial court should have suppressed his December statement
because he had previously invoked his right to counsel regarding another offense
and he could not be approached regarding any other offense unless his counsel was
present. In appellant’s view, the fact the detectives approached him in December
2009 violated his Sixth Amendment right to counsel. We disagree that the
detectives’ handling of the December interview violated either appellant’s Fifth
Amendment or Sixth Amendment rights to counsel.
1. Fifth Amendment right to counsel
The Fifth Amendment right to have an attorney present during any custodial
5
We already have determined that appellant was not in custody during the January
interviews. Therefore, even if appellant unambiguously asked for an attorney during those
interviews, the detectives were not obligated to provide appellant with an attorney or to terminate
the interview at that time. See Estrada v. State, 313 S.W.3d 274, 296 n.26 (Tex. Crim. App.
2010) (noting that the “defendant’s remedy in a noncustodial setting where the police continue
questioning the defendant after the defendant has unambiguously invoked his right to silence is
to simply get up and leave . . . .”).
27
police interrogation applies to any offense about which the police might want to
question a suspect. State v. Gobert, 275 S.W.3d 888, 892 (Tex. Crim. App. 2009).
Among the rights about which the police must advise a suspect whom they have
arrested is the right to have counsel present during any police-initiated
interrogation. Id. Once the suspect in custody has invoked his Fifth Amendment
right to counsel, police interrogation must cease until counsel has been provided or
the suspect himself reinitiates the dialogue. Edwards v. Arizona, 451 U.S. 477,
484–85 (1981); Gobert, 275 S.W.3d at 892.
The State does not contest that appellant was in custody during the
December interview and instead points out that the trial court found he received the
required warnings at the beginning of the interview. The State goes on to argue
that appellant did not unambiguously invoke his right to counsel during the
December interview. The State then contends that appellant voluntarily waived his
rights when he answered “alright” to Sergeant Holtke’s statement that he would
explain why they were talking to him when appellant wanted to speak with them.
We agree with the State.
We turn first to the question whether the record supports the trial court’s
conclusion that appellant waived his rights at the beginning of the December
interview. Although appellant did not expressly state that he waived his rights at
the beginning of the December interview, we conclude that he did so implicitly by
responding “alright” and answering questions after being read his rights. See
Turner, 252 S.W.3d at 583–84. The next question is whether appellant thereafter
invoked his right to counsel, requiring the detectives to stop the interview.
Because there was no unambiguous invocation of his right to counsel after he had
implicitly waived his rights, we conclude that he did not.
Appellant points out that he asked at the beginning of the December
28
interview, “I got a lawyer?” He argues this question was a sufficiently
unambiguous invocation of his right to counsel that the detectives should have
stopped the interview until he had had an opportunity to speak with an attorney. 6
But not every mention of a lawyer by a suspect will suffice to invoke the Fifth
Amendment right to the presence of counsel during questioning. Gobert, 275
S.W.3d at 892. An ambiguous or equivocal statement with respect to counsel does
not even require officers to seek clarification, much less halt their interrogation.
Id. Whether the mention of a lawyer constitutes a clear invocation of the right to
counsel will depend upon the statement itself and the totality of the circumstances.
Id. The test is an objective one and the suspect must articulate his desire to have
counsel present sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney. Id.
at 892–93.
Based on the totality of the circumstances, we conclude that appellant’s
question was not a clear and unequivocal invocation of his right to counsel. See
Davis v. United States, 512 U.S. 452, 462 (1994) (holding that statement “Maybe I
should talk to a lawyer” was not request for counsel).7 Because appellant’s
question did not clearly and unambiguously request counsel, the detectives were
6
This is the only reference to an attorney that appellant points out in his brief. We have
listened to the entire recording of the December interview and conclude that this was the only
time during the interview that appellant mentioned the word “lawyer” or “attorney”.
7
See also Mbugua v. State, 312 S.W.3d 657, 665 (Tex. App.—Houston [1st Dist.] 2009,
pet. ref’d) (holding that question “Can I wait until my lawyer gets here?” was not clear and
unambiguous assertion of right to counsel); Gutierrez v. State, 150 S.W.3d 827, 832 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (holding that question “Can I have [my attorney]
present now?” was ambiguous and did not clearly and unequivocally invoke right to counsel);
Halbrook v. State, 31 S.W.3d 301, 304 (Tex. App.—Fort Worth 2000, pet. ref’d) (holding that
question “Do I get an opportunity to have my attorney present?” did not constitute clear and
unambiguous invocation of right to counsel); Flores v. State, 30 S.W.3d 29, 34 (Tex. App.—San
Antonio 2000, pet. ref’d) (holding that question “Will you allow me to speak to my attorney
before?” was not clear and unambiguous invocation of right to counsel).
29
under no obligation to halt the interview or even to seek clarification from
appellant. Gobert, 275 S.W.3d at 892. We conclude that the trial court did not err
when it denied appellant’s motion to suppress his December statement to the extent
it was based on the Fifth Amendment right to counsel.
2. Sixth Amendment right to counsel
With regard to his Sixth Amendment right, appellant contends that once he
had invoked his right to counsel on other charges, the police were not allowed to
speak with him regarding the Veazie murder unless his attorney was present. We
disagree.
The Sixth Amendment right to counsel is offense specific. Rubalcado v.
State, 424 S.W.3d 560, 570 (Tex. Crim. App. 2014). Thus, the right does not
prevent the police from asking about an offense different from the offense
regarding which the suspect has previously invoked his right to counsel. Cobb v.
State, 85 S.W.3d 258, 263–64 (Tex. Crim. App. 2002). “In other words, the
invocation of the right viz one charge or prosecution does not encompass all future,
yet distinct, offenses and prosecutions therefor.” Romo v. State, 132 S.W.3d 2, 4
(Tex. App.—Amarillo 2003, no pet.). The critical inquiry for purposes of the Sixth
Amendment right to counsel is whether the offenses are the same. See
Blockburger v. United States, 284 U.S. 299, 304 (1932) (announcing test to
determine whether offenses are the same); Cobb, 85 S.W.3d at 264; Romo, 132
S.W.3d at 4.
Here, appellant does not argue that the capital murder charge is the same as
the other offenses regarding which he had previously invoked his right to counsel.8
8
Appellant testified during his trial that his previous criminal charges included: (1)
unauthorized use of a motor vehicle; (2) evading arrest in a motor vehicle; and (3) attempted
injury to a child.
30
Therefore, appellant has not shown that the detectives violated his Sixth
Amendment right to counsel when they interviewed him on December 9, 2009.
We conclude that the trial court did not err when it denied appellant’s motion to
suppress to the extent the motion was based on the Sixth Amendment right to
counsel. Having addressed and rejected each argument raised in appellant’s third
issue, we overrule that issue.
IV. The record on appeal contains a signed and certified Criminal Bill of
Costs that supports the trial court’s assessment of $614 in court costs
against appellant.
In his fourth issue, appellant contends there is no bill of costs in the appellate
record, and therefore the evidence supporting the trial court’s assessment of court
costs against him is insufficient. We review the assessment of court costs on
appeal to determine whether there is a basis for the costs, not whether there was
sufficient evidence offered at trial to prove each cost. Johnson v. State, 423
S.W.3d 385, 390 (Tex. Crim. App. 2014). Traditional sufficiency-of-the-evidence
standards do not apply. Id.
Generally, a bill of costs must (1) contain the items of cost, (2) be signed by
the officer who charged the cost or the officer who is entitled to receive payment
for the cost, and (3) be certified. Id. at 392–93; see Tex. Code Crim. Proc. Ann.
arts. 103.001, 103.006 (West 2005). The record in this case contains a Criminal
Bill of Costs signed and certified by the district clerk and a deputy clerk. The
Criminal Bill of Costs lists the costs assessed, and the amount totals $614, the
amount of court costs assessed against appellant. Under Johnson, a criminal bill of
costs such as the one contained in the appellate record of this case provides a
sufficient basis for the trial court’s assessment of costs. Id. at 392–96. In addition,
there is no requirement that the bill of costs be brought to the trial court’s attention.
Id. at 394. We therefore hold the Criminal Bill of Costs supports the assessment of
31
$614 in court costs against appellant. We overrule appellant’s fourth issue.
CONCLUSION
Having addressed and rejected each of the issues raised by appellant, we
affirm the trial court’s judgment.
/s/ J. Brett Busby
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — TEX. R. APP. P. 47.2(b).
32