Carlos M. Mata, Sr. v. State of Texas ( 2001 )

NO. 07-01-0066-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 22, 2001

______________________________



CARLOS MATA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 64^TH DISTRICT COURT OF HALE COUNTY;

NO. A13917-0012; HONORABLE JACK R. MILLER, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON MOTION TO APPOINT SECOND ATTORNEY

Appellant Carlos Mata was convicted of the offense of unlawful possession of a firearm by a felon and was sentenced to eight years confinement in the Institutional Division of the Department of Criminal Justice and a $10,000 fine. A notice of appeal was filed by his appellate counsel. Currently before this Court is appellant's pro se "Motion for Appointment of Second Attorney." In that motion, he seeks appointment of other counsel on appeal for the reasons that his appointed counsel has failed to raise in his brief some issues that appellant wanted raised and because of some errors in the docketing statement submitted by his counsel. In a letter attached to his motion, appellant asserts that he "is content with the court appointed attorney Kregg Hukill, but I feel that I have shown this court that he truly has to [sic] many cases to handle to represent me to the fullest of his ability."

Appellant has previously filed a pro se "Motion for Leave of Court to Permit the Filing of Motion to Dismiss Appeal Attorney and in Alternative that New Appeal Attorney be Appointed." ⁽¹⁾ By order dated August 24, 2001, we overruled that motion because the trial court has the responsibility for appointing counsel to represent indigent defendants, as well as the authority to relieve or replace counsel. See Enriquez v. State, 999 S.W.2d 906, 907 (Tex.App.--Waco 1999, no pet.); see also Springer v. State, 940 S.W.2d 322, 323 (Tex.App.--Dallas 1997, no pet.). Further, the trial court retains authority to appoint or substitute counsel even after the appellate record has been filed. Enriquez, 999 S.W.2d at 908.

On September 24, 2001, appellant filed a "Second Motion for Leave of Court to Permit the Filing of Motion for Appointment of Second Attorney." That motion was denied by letter dated September 26, 2001. On October 1, 2001, appellant filed the motion currently before this court. Thus, we have twice previously denied appellant the right to file a motion requesting the appointment of other appellate counsel and have explained our reasons on one occasion for so doing. Therefore, to the extent that appellant's current motion can be considered a motion for rehearing of our previous orders, that motion is overruled.

Per Curiam

Do not publish.

1. Appellant has also previously filed a "Motion to Dismiss Appeal Attorney and in Alternative that New Appeal Attorney be Appointed" to the 64^th District Court of Hale County.

the admission of the evidence was within the zone of reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1990, op. on reh'g)).

The camera in Trooper Calloway's patrol car recorded portions of his roadside encounter with appellant. In a preliminary hearing, the court observed the videotape before ruling certain questions by the trooper and responses of appellant, made after appellant was placed under arrest, were inadmissible because they were not preceded by the constitutional and statutory warnings. It excluded the portion of the videotape depicting these events. Appellant's complaint arises from the State's presentation to the jury of excerpts of other recorded events occurring after his arrest. In the contested video segment, appellant appears handcuffed and apparently alone in the patrol car. Following momentary inactivity, he uses his foot to increase the volume of the patrol car's radio. Appellant is silent for a time, apparently listening to music from the radio, before suddenly yelling, "That's right. Slam it, bitch." ⁽³⁾

As we interpret appellant's admissibility argument, he contends once custody attaches, triggering entitlement to constitutional and statutory admonitions before interrogation, all utterances and non-verbal expressions of a suspect that follow, until the warnings are given, are properly excluded from evidence. We disagree.

The United States Constitution provides that evidence obtained as a result of a custodial interrogation is inadmissible unless the State proves the officer gave proper warnings and shows an affirmative waiver of rights by the accused. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966); Ancira v. State, 516 S.W.2d 924, 926 (Tex.Crim.App. 1974). The Texas codification of the Miranda warnings is art. 38.22. Lemmons v. State, 75 S.W.3d 513, 519 (Tex.App.-San Antonio 2002, pet. ref'd).

Custodial interrogation is questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived his or her freedom of action in any significant manner. Miranda, 384 U.S. at 444; Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App. 1979). Custodial interrogation includes express questioning of a suspect as well as words or actions by police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response. Jones v. State, 795 S.W.2d 171, 174 (Tex.Crim.App. 1990), quoting Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980). For the sake of this discussion, it is important to note Miranda did not hold that all statements obtained by police should be considered the product of interrogation. Rather, as the Court explained:

In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

Miranda, 384 U.S. at 478 (footnote omitted) (emphasis supplied).

In like manner, art. 38.22 applies only to statements made as the result of custodial interrogation. See art. 38.22, § 5 ("Nothing in this article precludes the admission of a statement made by the accused . . . that does not stem from custodial interrogation. . . .").

Thus, the questioned evidence is not subject to exclusion simply because appellant was in custody at the time. The evidence must also have been the product of interrogation. When appellant used his foot to adjust the patrol car radio and yelled, he was alone in the vehicle. Under the facts presented here, the trooper did not take an action reasonably likely to elicit an incriminating response by leaving appellant alone in the patrol car for a few minutes. Appellant was not subjected to custodial interrogation at the time of the events in question. The trial court did not abuse its discretion by admitting the portion of the videotape in question.

Appellant's first and second issues are overruled.

Appellant's Third and Fourth Issues

In his third and fourth issues, appellant complains that the evidence was legally or factually insufficient to establish that Trooper Calloway possessed reasonable suspicion to stop appellant.

A criminal defendant is entitled to a legal and factual sufficiency review of the evidence supporting the elements of the offense. Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991); Hanks v. State, 104 S.W.3d 695, 703 (Tex. App.-El Paso 2003), aff'd, 137 S.W.3d 668 (Tex.Crim.App. 2004). But here the trooper's reasonable suspicion to effect the stop of appellant was not part of the State's burden of proof. ⁽⁴⁾ Nor can we see that an issue relating to the propriety of the trooper's stop of appellant was otherwise preserved for review. See Tex. R. App. P. 33.1. Therefore, appellant's issues three and four present nothing for our consideration, and are overruled.

Conclusion

Having overruled appellant's four issues, we affirm the judgment of the trial court.

James T. Campbell

Justice  

Do not publish.

1. Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).

2. In one sentence under his first issue, appellant argues the portion of the videotape in question was not relevant. Appellant's brief does not frame the contention as an issue nor does it present supporting record citations and authorities. Therefore, the question is not properly before us. Tex. R. App. P. 38.1(h). But even were the issue raised in this Court, the videotape evidence of appellant's demeanor and speech would be relevant. In a trial for driving while intoxicated, evidence may include relevant photographs or videotapes. See Tex. R. Evid. 401 and 1001; Griffith v. State, 55 S.W.3d 598, 601 (Tex.Crim.App. 2001) (audio portions of videotape circumstantially relevant because any signs of impairment in speech are relevant to definition of intoxication).

3. Having reviewed the videotape, we find a portion of appellant's utterance inaudible. However, in its brief the State agrees these were appellant's words, and we accept the parties' version of this fact.

4. It was for the State to prove beyond a reasonable doubt and persuade the jury that appellant was intoxicated while operating a motor vehicle in a public place and, for enhancement, that he had two prior driving while intoxicated convictions. Tex. Pen. Code Ann. § 49.04(a); 49.09(b). Appellant stipulated to the two prior convictions of driving while intoxicated.