Andrus, Terence Tramaine ( 2015 )

WITHDRAWN 03-23-16
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,936
TERENCE TREMAINE ANDRUS, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM CAUSE NO. 09-DCR-051034 IN THE 240TH DISTRICT COURT
FORT BEND COUNTY
K EASLER, J., delivered the unanimous opinion of the Court.
OPINION
In November 2012, a jury convicted Terence Andrus of capital murder for the October
15, 2008 murders of Avelino Diaz and Kim-Phuong Vu Bui during the same criminal
transaction.1 Pursuant to the jury’s answers to the special issues set forth in Texas Code of
Criminal Procedure Article 37.071, sections 2(b) and 2(e), the judge sentenced Andrus to
1
See T EX. P ENAL C ODE § 19.03(a)(7)(A).
ANDRUS—2
death.2 Direct appeal to this Court is automatic.3 Andrus raises twelve points of error. After
reviewing Andrus’s points of error, we find them to be without merit. Consequently, we
affirm the trial court’s judgment and sentence of death.
In his sixth and seventh points of error, Andrus challenges the legal sufficiency of the
evidence to support his conviction and the jury’s affirmative answer to the future-
dangerousness special issue, respectively. We address these arguments first. The remaining
points of error will be addressed in the order presented.
STATEMENT OF FACTS
Between 11:00 p.m. and midnight on October 15, 2008, Avelino Diaz and his wife,
Patty, stopped to buy milk at the Kroger grocery store at Highway 6 and Bissonnet in Fort
Bend County. Avelino dropped Patty off at the store’s front entrance and then went to park
the car. While Patty was in the store, Ivery Maxey, a Kroger employee, approached her and
asked if she was there with anyone. Due to Maxey’s facial expression, Patty knew something
was wrong and ran to the parking lot. She found her husband lying in a pool of blood on the
ground next to their car. He had been shot in the head. The keys were in the ignition, and
the engine was on. Avelino’s licensed, concealed handgun that he kept in the car was still
in its holster and was lying on the ground next to him.
Maxey told police that he was working at the front of the store near the windows when
2
T EX. C ODE C RIM. P ROC. art. 37.071, § 2(g).
3
Id. art. 37.071, § 3(h).
ANDRUS—3
the shooting occurred. He said that he heard a gunshot, looked up, and saw an African-
American male in a trench coat standing next to the left rear side of Diaz’s vehicle. He
observed the man making a motion as if he were putting something back in his jacket.
Maxey ran to tell the store manager what he saw; therefore, he did not see where the suspect
went. Maxey, who was familiar with the Diaz family, sought Patty out in the store. The
medical examiner testified that Avelino died from a gunshot to the back of the head with the
bullet damaging both sides of his brain.
Meanwhile, Kim-Phuong Vu Bui and her husband, Steve, drove into the Kroger
parking lot entrance by the side of the building. As they drove through the side parking lot
towards the front of the store, Steve heard Kim yell, “He have [sic] a gun.” Steve
immediately stopped the car. When he looked out his open driver’s-side window, he saw an
African-American man with a gun. The man was yelling at him and was holding the gun just
inches away from Steve’s chest. Steve instinctively hit the gas pedal to get away.
As Steve’s car began to move, the man immediately began shooting at the car and its
occupants. The first shot went through Steve’s open window and hit Kim in the head. As
Steve sped away, a second shot entered through the back driver’s-side passenger window.
A third shot, which also went through the back driver’s side door, entered at an angle
indicating that the shot originated from a farther distance. One of the bullets struck Steve’s
back, superficially wounding him.
Steve looked over at Kim and saw blood coming out of her mouth. Concerned that
ANDRUS—4
the shooter was still nearby, Steve did not want to wait for help in the parking lot. So Steve
drove Kim to the nearest hospital and carried her inside. Kim died shortly thereafter. The
medical examiner testified that Kim was shot through the head with a bullet that struck her
carotid and vertebral arteries and fractured her jaw, teeth, and first cervical vertebra.
The police obtained surveillance footage from video monitors in the area. The video
taken from a residence at the corner of Bissonnet and Gianna Court—just around the corner
from the Kroger—showed a person matching the shooter’s description. The video showed
a man walking west toward the Kroger at 11:44 p.m., shortly before the time of the shootings,
and then showed the same man walking east 20 seconds after midnight. The video showed
the man walking into the front yard of a home across Gianna Court and disappearing behind
a wall for 90 seconds, then walking back onto Bissonnet and continuing east, away from the
Kroger. At 7:15 a.m., the man appeared again on the video but wearing different clothing.
Later the same day, he was recorded returning to the yard, accompanied by a woman. The
police searched the yard, but were unable to find anything.
The police also recovered footage from a camera at the Valero store located about
1/10th of a mile east of the Bissonnet-Gianna Court intersection. That video recorded a man
who appeared to be the suspect entering the store around 11:01 p.m. on the night of the
murders. He was wearing a dark coat and paced back and forth impatiently before leaving.
He then appeared to walk east on Bissonnet toward some apartments. The video showed the
suspect and the woman from the residential video stopping at the Valero the next day.
ANDRUS—5
The police released still images from the Valero footage to the media and
Crimestoppers. These images aired on television on October 22nd. Several tips came in that
day, and Andrus became a suspect. The police determined that Andrus lived in an apartment
at the intersection of Bissonnet and Synott, just east of the Kroger, Valero, and Gianna Court
intersection, but they were unable to locate him.
On November 7th, the police learned that Andrus had been arrested in New Orleans
on unrelated charges. Fort Bend Sheriff’s Detective Jeffrey Martin and Texas Ranger Kip
Westmoreland drove to the Orleans Parish Jail to speak with him. After Andrus waived
extradition, Detective Martin and Ranger Westmoreland transported him back to Fort Bend
County. Andrus confessed to the crime during the car trip back to Texas, although his
account of the offense conflicted with the physical evidence.
Andrus stated that he left his apartment on the night of October 15th to find a car and
go joy-riding. He said that he was “amped up” on embalming fluid mixed with marijuana,
cocaine, and beer. He eventually made his way to the Kroger parking lot.
Andrus stated that he saw a man drop a woman off at the front of the store. Andrus
walked over to the car as the man parked the car. Andrus had his gun in his right hand when
he opened the passenger door, but then he saw that the car had a stick shift, which he did not
know how to drive. Andrus told the man not to get out, but the man did anyway. Andrus
asserted that the man had a gun in a holster and reached for it. Andrus said that he shot the
man once over the top of the car while the man was facing him. Andrus then ran.
ANDRUS—6
When Andrus was rounding the corner of the Kroger, he saw a car driven by an old
man. Andrus claimed that as he approached the car, the driver sped up and tried to hit him.
Andrus said that he then fired three shots through the front windshield, but he stated that he
did not know if he hit anyone.
Andrus stated that he ran down Bissonnet and ducked into a yard to bury his gun,
gloves, and jacket. He then returned to his apartment and told his girlfriend that he had done
“something wrong.” The next morning, Andrus went back to the yard to look for his gun,
but he could not find where he had buried it. He returned later with his girlfriend to look
again, but he still could not find it. In his frustration, he threw the shovel he was using into
some bushes across the street. Three days later, after seeing his picture on the news, he fled
to New Orleans.
After returning to Fort Bend County, Andrus helped the police locate his gun, a .380
automatic, that was buried in the yard, as well as the shovel that he had thrown across the
street. Three live rounds were still in the gun’s eight-round magazine with one round in the
chamber. Investigators recovered four spent bullets from the crime scene that matched the
rounds recovered from the gun.
At the punishment phase of the trial, the State presented evidence of Andrus’s prior
convictions: (1) a May 2004 juvenile adjudication for possession of a controlled substance;
(2) a January 2005 juvenile adjudication for criminal solicitation to commit felony
aggravated robbery; and (3) a June 2007 conviction in which Andrus pled guilty to
ANDRUS—7
misdemeanor theft. Andrus also admitted that he had been a member of the “59 Bounty
Hunter Bloods” street gang. The jury was shown numerous photographs of his gang-related
tattoos.
Regarding Andrus’s 2005 juvenile adjudication, the State presented the following
evidence. On the morning of May 15, 2004, Alison Koenig was driving to her parents’ home
to pick up some items. She noticed that a car appeared to be following her, so she went the
long way to her parents’ house. Believing she had lost the car, she stopped her car in front
of her parents’ home. However, the same car pulled up abruptly and two men got out, one
with a gun. The driver told Koenig that she was “going to have to give up [her] fucking
purse.” The gunman was only two feet away from her. After Koenig gave the driver her
purse, he demanded her gym bag as well. He then pushed Koenig up against her car and told
her not to turn around. As the driver and gunman left, Koenig got their license plate number.
She also noticed a third man in the back seat of the fleeing car. Koenig was able to describe
the gunman’s clothing—he was wearing a red shirt, black shorts, and a skull cap.
The police located the suspects’ vehicle shortly thereafter along with a suspect
matching Koenig’s description of the gunman. Police brought Koenig to the arrest scene
where she identified Andrus, stating that he was wearing the same clothes as the gunman.
Some of her belongings were also recovered.
The State also presented evidence of an August 21, 2008 aggravated robbery. Tuan
Tran was opening his dry cleaning business at 7:00 a.m. He was setting up the cash register
ANDRUS—8
and had an envelope full of cash when Andrus came in and demanded the money. Tran ran
towards the back of the store and Andrus cornered him. Andrus beat and kicked Tran, but
it was not until Andrus pulled a knife that Tran was willing to give up the money. Tran
threw the money on the floor. Andrus grabbed the money and then emptied all the change
from the cash register on his way out. Andrus committed the instant capital murder less than
two months later. He was arrested for the aggravated robbery and the capital murder at the
same time.
While awaiting trial in this case, Andrus committed numerous infractions in the jails
in Harris and Fort Bend Counties. On April 18, 2009, Andrus assaulted another inmate.
When a detention officer intervened, Andrus told him, “I don’t give a fuck,” and “I’m going
to get the needle anyway.”
On May 9, 2009, Andrus, who was housed on the “super-max” floor of the jail,
claimed to be having chest pains. According to jail protocol, detention officers took Andrus
to the medical clinic to be checked out. Andrus asked the nurse at the clinic for
decongestants, but she told him that she could not provide those due to his other medications.
Andrus told her, “Fuck you,” and then screamed and yelled obscenities as detention officers
tried to calm him down. The officers then escorted Andrus, who was handcuffed and
shackled, back to his cell. Andrus refused to walk on his own, so the officers had to
physically push him into the elevator to the super-max floor. When they arrived at Andrus’s
cell, the officers unshackled him. As soon as one officer unlocked the handcuffs, Andrus
ANDRUS—9
turned and punched the officer twice in the face before the officers regained control. That
day, officers also discovered in Andrus’s cell a broken razor blade and a sharpened, bent key
ring. Andrus had apparently cut himself and used his blood to draw a picture of the world
on his cell wall and to write “Fuck the world. I want to die.”
On May 11, 2009, Andrus jammed open the “panhole” in his cell door, the opening
where food, papers, and medicines can be passed to an inmate without the cell door being
opened. When an officer went to investigate and looked into the panhole, Andrus threw
urine in the officer’s face. Andrus then danced around his cell in celebration saying, “I got
him, bitch ass, mother fucker. I got his ass.” Andrus then taunted the officer, “Come on in
and get me. There is nothing you can do to me.”
On July 5, 2009, Andrus attempted to pass contraband pills to another inmate. When
a detention officer intercepted the pills, Andrus angrily demanded the pills back. Andrus
then threatened to throw a cup of urine on the officer. Afterwards, Andrus broke a sprinkler
head and flooded his cell. Officers handcuffed Andrus. Andrus threatened one of the
officers on duty, saying, “[I’m] going to get him, you just wait and see,” and, “Once you take
these handcuffs [off of] me, you are going to see how hard I hit.” Andrus also told the rest
of the staff that he was “going to get all of you.” The mental-health unit was called to calm
Andrus down.
Two hours later, Andrus began complaining of chest pains. Andrus was taken to the
medical clinic where he attempted to convince the attending officer to remove his handcuffs.
ANDRUS—10
When the officer refused due to Andrus’s earlier threats, Andrus told him, “I haven’t
threatened you though.” When the officer again refused, Andrus asked him, “Are you
scared?” Two officers put Andrus back in his cell. They had Andrus lie down on his bed
while they removed his cuffs. Once the cuffs were removed, Andrus jumped up and began
kicking and punching the officers, injuring them. Andrus yelled, “I’m going to kill y’all. I
told you I’m going to kill y’all.” The Special Response Team (SRT) was called. It took five
officers to subdue Andrus.
On January 4, 2010, Andrus threw an unknown liquid on an officer as he walked past
Andrus’s cell. When asked to back up to the cell bars to be handcuffed, Andrus wrapped
himself in a blanket so that his arms were inaccessible and the officers had to enter his cell
to handcuff him. The SRT was called to handcuff Andrus and move him to a more secure
cell. Andrus once again displayed obscenity-laced defiance.
On July 20, 2010, Andrus covered the window of his cell so that officers could not see
inside. He refused to remove the cover or to place his hands in the panhole so that he could
be handcuffed. The SRT was called. Upon entering Andrus’s cell, the officers discovered
that Andrus had stopped up the toilet and the shower drain, and used the shower to flood the
cell. The cell walls were covered in feces, and 2½ inches of water and feces covered the
floor. Andrus was naked, standing by the toilet. Andrus threw liquid on the officers and then
resisted their attempts to handcuff him by striking at them.
On July 27, 2011, Andrus stuck his arms through the panhole of his cell door and
ANDRUS—11
refused to remove them. He claimed that he was upset that he was denied recreation even
though he had refused his recreation opportunity when it was offered to him. Andrus yelled
at the detention officer, “You don’t know me, bitch. I’m not some peon inmate. You won’t
find out. You’d better ask around.” He continued to refuse the officer’s order to put his
arms back inside his cell. The SRT was called and Andrus kicked and struck at the team
members who tried to subdue him. He yelled that they did not know him and that he was
“going to fuck somebody up.” The team moved him to a padded cell where Andrus covered
his new cell window with feces.
On July 28, 2011, Andrus told a guard at meal time, “Don’t bring that tray over here,
bitch. I’m going to throw it and hit somebody with it.” As a result of his statements, Andrus
was again moved to a padded cell. While being moved, Andrus told the officers, “I have
three caps. I have nothing to lose. This will be everyday.” Once in the cell, he commented
that he “will kill an officer” if given the chance.
Andrus presented evidence that he was raised by a single mother. His father was
incarcerated for most of Andrus’s life, although Andrus did live with his father during his
freshman year of high school until his father was again arrested. Andrus’s mother testified
that Andrus did well in school and helped take care of his younger siblings. However, he
dropped out of school in 10th grade and began getting in trouble with the law.
During Andrus’s mitigating presentation, defense expert Dr. John Roache, a
pharmacologist specializing in alcohol and drug addiction, testified regarding Andrus’s drug
ANDRUS—12
abuse and addiction. He noted that by age 11 Andrus had begun using marijuana.
Throughout his teen years, Andrus increasingly used marijuana on a daily basis and
periodically used Xanax and alcohol. By age 19, Andrus regularly used PCP and ecstasy and
sporadically used cocaine. Dr. Roache testified that drugs impair the development of the
adolescent brain in the areas of judgment and impulse control, and that these effects are long
lasting. He opined that Andrus’s drug use caused him to commit the capital murder. Dr.
Roache conceded that Andrus displayed aggressive and hostile antisocial behavior without
the drugs, but he maintained that the drugs “unleashed” Andrus’s underlying tendencies.
James Martin, a licensed professional counselor with the Fort Bend County Jail,
testified that he assisted Andrus with his behavioral issues at the jail. He noted that Andrus
had hallucinations and had a poor history of complying with his medication schedule. He
testified that although Andrus has antisocial personality disorder, Andrus had been making
progress and was beginning to show remorse for the murders. Martin conceded that this
progress coincided with the beginning of the instant trial.
Andrus testified in his defense. He told the jury that he had been exposed to drugs as
early as 6 years of age because his mother sold them. He noted that he rarely had adult
supervision at home, and he started using drugs regularly when he was 15. He stated that he
does not like confined spaces and does not like being told what to do. However, he testified
that as of August 25, 2012, he had humbled himself and given his life to God. He
acknowledged that he previously acted out when he was agitated, but he asserted that he did
ANDRUS—13
not do that anymore. Andrus testified that he believed that he could help other inmates to
avoid making the same mistakes he did.
SUFFICIENCY OF THE EVIDENCE
In point of error six, Andrus claims that the evidence is legally insufficient to support
his conviction. When reviewing the sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on that
evidence and the reasonable inferences therefrom, a jury was rationally justified in finding
guilt beyond a reasonable doubt.4 This standard “gives full play to the responsibility of the
trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” 5
Andrus specifically contends that, without his confessions, the State’s evidence is
insufficient to show that he committed the shootings. Because he believes that his
confessions were inadmissible, he argues that we should not consider them in our sufficiency
review. Andrus does not contend that the evidence is legally insufficient if his confessions
are considered.
As a reviewing court, we consider “all evidence in the record of the trial, whether it
4
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010).
5
Jackson, 443 U.S. at 319.
ANDRUS—14
was admissible or inadmissible.”6 Here, the charge authorized the jury to convict Andrus of
capital murder if it found that he murdered more than one person during the same criminal
transaction.7 Specifically, the jury could convict Andrus if it found that he intentionally and
knowingly caused the death of Avelino Diaz by shooting him with a firearm and then
intentionally caused the death of Kim-Phuong Vu Bui by shooting her with a firearm. Here,
aside from the confessions, the evidence included eyewitness testimony, video surveillance,
and Andrus’s flight after committing the crime. Because we consider all of the evidence,
including the confessions, Andrus’s argument fails. Point of error six is overruled.
In point of error seven, Andrus asserts that the evidence is legally insufficient to
support the jury’s affirmative answer to the future-dangerousness special issue. He contends
that the jury should not have considered Alison Koenig’s testimony regarding the 2004
aggravated robbery because she did not identify Andrus as the gunman, but only identified
his clothes. He also argues that the murders lacked planning and forethought because his
drug use affected his reasoning and decision making. He further points out that James
Martin, a Fort Bend County Jail counselor, testified that he could conform his behavior while
incarcerated in a drug-free environment.
When reviewing the legal sufficiency of the evidence to support the jury’s answer to
the future-dangerousness special issue, we view the evidence in the light most favorable to
6
Soliz v. State, 432 S.W.3d 895, 900 (Tex. Crim. App. 2014); Dewberry v. State,
4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
7
See T EX. P ENAL C ODE § 19.03(a)(7)(A).
ANDRUS—15
the verdict and determine whether any rational trier of fact could have believed beyond a
reasonable doubt there is a probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.8 In its determination of this
special issue, the jury is entitled to consider all of the evidence admitted at both the guilt and
punishment phases of trial.9 The jury may consider a variety of factors when determining
whether a defendant will pose a continuing threat to society.10 The circumstances of the
offense and the events surrounding it may be sufficient to sustain an affirmative answer to
this special issue.11
The evidence shows that Andrus exhibited an escalating pattern of violence and
disrespect for the law prior to killing Diaz and Bui.12 The jury also could consider Andrus’s
uncooperative and violent behavior in jail while awaiting trial. Though Andrus testified that
he had “found God” recently and would not act out anymore, the jury was free to disbelieve
his self-serving testimony. Because Andrus stipulated that he was convicted of criminal
solicitation of aggravated robbery, the jury was free to consider Koenig’s testimony
8
Williams v. State, 273 S.W.3d 200, 213 (Tex. Crim. App. 2008). See also
Jackson, 443 U.S. at 319.
9
Young v. State, 283 S.W.3d 854, 863 (Tex. Crim. App. 2009).
10
Keeton v. State, 724 S.W.2d 58, 61 (Tex. Crim. App. 1987).
11
Devoe v. State, 354 S.W.3d 457, 462 (Tex. Crim. App. 2011).
12
See Jackson v. State, 33 S.W.3d 828, 838 (Tex. Crim. App. 2000) (stating that
an escalating pattern of disrespect for the law supports a finding of future dangerousness).
ANDRUS—16
concerning that incident. Finally, the jury also could have rationally found that Andrus
premeditated these murders as a means of attempting to obtain a car and then acted with
calculated intent to escape detection by burying the murder weapon and leaving the state.13
Considering the evidence presented at guilt-innocence and punishment, we conclude
there was sufficient evidence to support the jury’s affirmative finding that there was a
probability Andrus would be a continuing threat to society. Point of error seven is overruled.
MOTION TO SUPPRESS
In point of error one, Andrus contends that the judge erred in denying his motion to
suppress his confessions in violation of his rights under the Fifth and Sixth Amendments to
the United States Constitution. Andrus claims that detectives ignored his request for counsel
following his Miranda warnings. He also asserts that his termination of questioning in
Louisiana should have prevented all further questioning. Therefore, officers should not have
spoken to him while he was being transported back to Texas. Finally, Andrus contends that
the six-plus-hour drive back to Texas in a small space—here, the automobile—with the same
officers with whom he had just terminated all questioning a few hours before was an
impermissible pressure tactic to get him to talk.
We first note that Andrus’s appellate brief cites solely Texas cases concerned only
with state law. However, Andrus based his motion to suppress the confessions solely on
13
See Barley v. State, 906 S.W.2d 27, 38 (Tex. Crim. App. 1995) (holding
evidence of defendant’s calculation and forethought indicative of future dangerousness).
ANDRUS—17
federal law. As Andrus failed to make an objection at trial based upon Texas constitutional
law, we limit our review to federal law.14
The record shows that law enforcement learned on November 7, 2008, that Andrus
had been arrested in New Orleans on unrelated charges and was being held on an outstanding
warrant from Harris County relating to the aggravated robbery case. No warrant had been
issued yet in the capital murder case. Detective Martin and Ranger Westmoreland drove to
the Orleans Parish Jail to interview Andrus. When the officers arrived in the early morning
hours of November 8th, they read Andrus his Miranda rights, and he waived those rights and
spoke to the officers during an audio-recorded interview. Specifically, Andrus stated, “Yeah,
I’ll talk to you, man, I ain’t got nothing to hide.” Andrus denied committing any criminal
offense, but stated that something might have happened with “someone else he was with.”
Andrus then stated that he was done talking, and the detectives terminated the interview,
saying “Don’t worry about it, man. I’m done, dude, now take me back.” Andrus did not
request an attorney during this interview.
On November 10th, Detective Martin and Ranger Westmoreland learned that Andrus
had waived extradition, and they volunteered to transport Andrus back to Harris County on
the aggravated-robbery warrant. No warrant had yet issued in the instant case. In
preparation for the trip, the officers installed a recording device in their vehicle so they would
be able to record anything that happened while they were on the road.
14
T EX. R. A PP. P. 33.1(a).
ANDRUS—18
During the drive, Andrus initiated the following conversation:
[Andrus]: Say, have I been indicted?
RANGER: For what?
[Andrus]: Huh?
RANGER: For what?
[Andrus]: For anything. That’s why I’m asking.
RANGER: Yeah, that’s why you’re wanted. You’ve been indicted for
aggravated robbery.
[Andrus]: I ain’t robbed nobody.
RANGER: I didn’t say you did. All I said was you’ve been indicted for it.
That’s what you asked.
* * *
[Andrus]: I don’t got a court date yet?
RANGER: No. They got to get you in the system first.
[Andrus]: An attorney?
RANGER: Yeah, they’ll do that, too.
[Andrus]: What’s an assistant?
RANGER: In the system.
Andrus then asked if the officers wanted to listen to the radio. Detective Martin repeated the
Miranda warnings, and Andrus again acknowledged that he understood them.
Later, without prompting, Andrus began the following conversation:
ANDRUS—19
[Andrus]: I got a question. You said I was indicted on armed robbery, but ya’ll
said [during the initial jail interview] two people got killed.
RANGER: It’s two separate deals.
[Andrus]: So, I’m—I’m indicted on armed robbery and two counts of people
getting killed?
RANGER: I don’t know if you actually got indicted on armed robbery. I think
they got a warrant for you. That’s what you were wanted for.
[Andrus]: Well, I’m indicted—
RANGER: So, they went and got a warrant for armed robbery. I say they,
Houston Police Department.
[Andrus]: Yeah.
RANGER: The warrant’s out of Harris County, which is where we are going.
[Andrus]: We aren’t going to Fort Bend?
RANGER: No. We’re going to Harris County. The—when we said that two
people got killed, that was in Fort Bend County. But there
ain’t—you ain’t been indicted out of Fort Bend County.
Andrus continued to engage the officers in conversation, discussing his thoughts on the
aggravated-robbery charge, his preference for the Fort Bend County Jail over the Harris
County or Orleans Parish Jails, his juvenile offenses, clubs he liked in the French Quarter,
etc. When Andrus bragged that he would be out of jail within three months, Ranger
Westmoreland told him that the “Fort Bend deal ain’t going to go away.” Andrus continued
to deny any involvement in the killings.
Later, Andrus again asked the officers about the instant case:
ANDRUS—20
[Andrus]: So, my case in Fort Bend is pending?
DETECTIVE: It’s being investigated now.
[Andrus]: Wrong place at the wrong time.
DETECTIVE: What you mean?
[Andrus]: I was at the wrong place at the wrong time, all over some
marijuana.
About four to five hours into the trip, Andrus again brought up the murders and
continued to ask probing questions about what evidence the police had obtained. Detective
Martin spoke with Andrus about how making a confession and accepting responsibility might
help him in a sentencing phase. He explained that if Andrus told his side of the story, the
crime might not appear to be “cold-blooded murder.” Andrus told him that he was going to
get the death penalty anyway and that he would actually ask for it if his other option was 40
years to life. Andrus then stated that he had decided to confess because “I feel like I’ve got
nothing to lose,” although he maintained that he killed the victims in self-defense.
Because the officers believed the interview room they needed in Harris County would
be closed by the time they reached it, they drove to Fort Bend County. When they arrived
at the Fort Bend County Sheriff’s Office, Andrus made a videotaped and written statement.
Detective Martin and Ranger Westmoreland did not re-read Andrus his Miranda rights until
approximately three-quarters of the way through the interview because they had forgotten to
do so when they changed recording devices from the car to the interview room. When
Andrus was read his Miranda warnings, he confirmed that he understood each of the rights,
ANDRUS—21
and he agreed to waive them. Andrus also initialed and signed the written warnings on a
form. After his written statement was completed, Andrus initialed the written warnings at
the beginning of the statement. He also reviewed and corrected the written statement before
he signed it. Andrus did not request an attorney or ask to terminate the interview at any time.
At the suppression hearing, Andrus testified that he requested counsel when Detective
Martin and Ranger Westmoreland were checking him out of the Orleans Parish Jail. Andrus
stated that after they checked out his property, but before they left the building, Ranger
Westmoreland pulled him aside and read him his Miranda warnings. Andrus testified that
he then told Ranger Westmoreland, “I’m going to need that attorney.” Ranger
Westmoreland, however, testified that he did not read the Miranda warnings at that time and
that Andrus did not request an attorney. Detective Martin testified that Andrus never
requested counsel at that time but only complained about his commissary money. The judge
denied Andrus’s motion to suppress and filed written findings of fact and conclusions of law.
In reviewing claims alleging Miranda violations, we conduct the bifurcated review
set out in Guzman v. State.15 We afford almost total deference to the trial judge’s rulings on
questions of historical fact and on application of law to fact questions that turn upon
credibility and demeanor, while we review de novo the judge’s rulings on application of law
15
955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Pecina v. State, 361 S.W.3d 68,
78–79 (Tex. Crim. App. 2012).
ANDRUS—22
to fact questions that do not turn upon credibility and demeanor.16 In deciding whether an
accused “actually invoked his right to counsel,” appellate courts use an objective standard
“to avoid difficulties in proof and to provide guidance to officers conducting
interrogations.”17 The accused “must unambiguously request counsel” during a custodial
interrogation; that is, “he 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.” 18
Request for Counsel
The record supports the judge’s finding that the only time Andrus used the word
“counsel” or “attorney” on the drive from the Orleans Parish Jail. But this was not a clear
invocation of counsel that required the cessation of questioning; defense counsel conceded
as much at the suppression hearing that this “request” was ambiguous.19 Andrus testified at
the hearing that he unambiguously requested counsel as they were leaving the Orleans Parish
Jail. Both officers, however, testified that Andrus never made such a request. At a
suppression hearing, the judge is the sole finder of fact and is free to believe or disbelieve
16
Pecina, 361 S.W.3d at 79.
17
Id. (citing Davis v. United States, 512 U.S. 452, 458–59 (1994)).
18
Id.19
See Davis, 512 U.S. at 459.
ANDRUS—23
any or all of the testimony presented.20 In his findings of facts and conclusion of law, the
judge found the officer’s testimony credible and Andrus’s testimony not credible. Because
Andrus did not invoke counsel, we hold that the judge properly denied this claim in Andrus’s
motion to suppress.
Termination of Questioning
Although it is insufficiently developed in his brief, Andrus seems to claim that by
saying, “I’m done, dude, now take me back,” he invoked his right to remain silent. We
further understand Andrus to claim that this invocation precluded the officers from
questioning Andrus on the drive back to Texas. The judge found that Andrus terminated the
officers’ questioning by unambiguously invoking his right to remain silent. However, the
judge found that Andrus reinitiated conversation with the officers after the invocation.
“If [an] individual indicates in any manner, at any time prior to or during questioning,
that he wishes to remain silent, the interrogation must cease.” 21 The admissibility of
statements obtained after the person in custody has decided to remain silent depends under
Miranda on whether his invocation to remain silent was “scrupulously honored.” 22 However,
the police may speak with an accused who has previously invoked his right to silence if the
20
Ross, 32 S.W.3d at 855.
21
Miranda, 384 U.S. at 473–74.
22
Michigan v. Mosley, 423 U.S. 96, 104 (1975).
ANDRUS—24
accused reinitiates “further communication, exchanges, or conversations with the police.” 23
The record supports a finding that the officers concluded questioning Andrus after he
invoked his Miranda right to remain silent at the Orleans Parish Jail. The officers did not
pose any questions to Andrus on the drive back to Texas. Nevertheless, Andrus gave the
officers his confession despite the fact that the officers scrupulously honored his Miranda
rights. Andrus is the one who re-initiated discussion of his case with the officers on the drive
back to Texas. The officers again read Andrus his rights and Andrus expressly stated that
he understood them. Even then, the officers did not question Andrus about the details of the
offense, but instead, after Andrus repeatedly brought it up, they encouraged him to tell his
side of the story because it was the right thing to do. Only then did Andrus confess to the
crime. He later gave his written and oral statements at the Fort Bend County Sheriff’s
Office. We hold that the judge properly denied Andrus’s motion to suppress under this
alleged Miranda violation.
Impermissible Pressure Tactic
We will not reach Andrus’s third reason to suppress his confessions: that riding back
to Texas with the same officers with whom he had invoked his right to silence was an
“impermissible pressure tactic” to get him to confess. Andrus did not make this claim in the
trial court and has therefore failed to preserve it for appellate review.24
23
See Edwards v. Arizona, 451 U.S. 477, 484–85 (1981).
24
T EX. R. A PP. P. 33.1(a).
ANDRUS—25
The judge properly denied Andrus’s motion to suppress his statements. Point of error
one is overruled.
CHALLENGES FOR CAUSE
In point of error two, Andrus asserts that the judge erred by denying his challenge for
cause to prospective juror Gordon Freund and by granting the State’s challenge to
prospective juror Rosa Rodriguez. He argues that the judge denied and granted the
respective challenges for cause in violation of the United States Supreme Court’s rulings in
Wainwright v. Witt25 and Adams v. Texas.26 Although this point of error is multifarious, we
will review his arguments in the interest of justice.27
Prospective Juror Freund
To establish harm for an erroneous denial of a challenge for cause, an appellant must
show on the record that (1) he asserted a clear and specific challenge for cause; (2) he used
a peremptory challenge on the complained-of venire member; (3) his peremptory challenges
were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable
juror sat on the jury.28
25
469 U.S. 412 (1985).
26
448 U.S. 38 (1980).
27
T EX. R. A PP. P. 38.1.
28
Comeaux v. State, 445 S.W.3d 745, 749 (Tex. Crim. App. 2014).
ANDRUS—26
Andrus was entitled to fifteen peremptory challenges.29 After he exhausted his fifteen
peremptory strikes, he requested and received one additional strike. Further, Andrus did not
identify any juror who was seated whom he otherwise would have struck but for a lack of
peremptory strikes. Therefore, Andrus has not demonstrated any harm from the alleged
improper denial of the challenge for cause because any error was ameliorated by the granting
of the extra peremptory strike.
Prospective Juror Rodriguez
In a capital case in which it seeks the death penalty, the State may challenge a
potential juror for cause on the ground that he has conscientious scruples against the death
penalty.30 A venireperson is also challengeable for cause by either party if the member has
a bias or prejudice against the defendant or the law upon which the State or the defendant is
entitled to rely.31 However, a prospective juror who can set aside his beliefs against capital
punishment and honestly answer the special issues based on the law and the evidence is not
challengeable for cause.32 A judge may grant a challenge for cause against a prospective
juror if bias or prejudice would substantially impair the juror’s ability to carry out his oath
29
T EX. C ODE C RIM. P ROC. art. 35.15(a).
30
See id. art. 35.16(b)(1).
31
Id. art. 35.16(a)(9), (c)(2). See Gardner v. State, 306 S.W.3d 274, 295 (Tex.
Crim. App. 2009).
32
Hernandez v. State, 390 S.W.3d 310, 317 (Tex. Crim. App. 2012). See
Witherspoon v. Illinois, 391 U.S. 510, 522–23 (1980).
ANDRUS—27
and instructions in accordance with the law.33
When reviewing a judge’s decision to grant or deny a challenge for cause, we look to
the entire record to determine whether there is sufficient evidence to support the judge’s
ruling and reverse only for a clear abuse of discretion.34 Because the judge is in the best
position to evaluate a prospective juror’s demeanor and responses, we review a judge’s ruling
on a challenge for cause with considerable deference.35 We accord particular deference to
a judge’s decision when a prospective juror’s answers concerning his ability to follow the
law are vacillating, equivocating, ambiguous, unclear, or contradictory.36
Here, Andrus contends that Rodriguez was qualified to serve because, although her
views against the death penalty would affect her, they would not substantially impair her
ability to answer the special issues. The record shows that Rodriguez repeatedly stated that
her mind was made up that life imprisonment was a harsher sentence than the death penalty
and that she would answer the special issues so that the defendant received a life sentence.
She also stated that she was against the death penalty for religious reasons and it was “not
33
Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). See Witt, 469
U.S. at 424.
34
Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010); Feldman, 71
S.W.3d at 744.
35
Gardner, 306 S.W.3d at 295; Burks v. State, 876 S.W.2d 877, 893 (Tex. Crim.
App. 1994).
36
Gardner, 306 S.W.3d at 295; Smith v. State, 297 S.W.3d 260, 268 (Tex. Crim.
App. 2009).
ANDRUS—28
our place to sentence someone to death.” She further explained, “it’s not that I wouldn’t look
at the evidence, it’s just honestly it would – my feelings would over – overcome, I guess, the
evidence.”
When questioned by the defense, Rodriguez said, “I think I could” answer the
questions based upon the evidence. When questioned by the judge, Rodriguez stated that in
a proper case with the right evidence, she could consider the evidence, but she “wouldn’t like
it. It would be really hard.” On further voir dire by the State, Rodriguez admitted that her
beliefs would substantially impair her ability to answer the special issues. Upon final
questioning by the judge, Rodriguez agreed that her “feelings against the death penalty are
so deep seeded [sic] that [she] would have to go against all of that in order to make a decision
based on the evidence[.]”
To the extent that Rodriguez’s answers were vacillating, equivocating, unclear, or
contradictory, we afford particular deference to the decision of the judge.37 We also defer
to the judge’s assessment of Rodriguez’s demeanor.38 The judge did not abuse his discretion
in granting the State’s challenge for cause. Point of error two is overruled.
BATSON AND ARTICLE 35.261
In points of error three, four, and five, Andrus alleges that the judge erred in allowing
the State to strike prospective jurors Chukwunenye Nweke, Karl Miller, and Kimberly Gentry
37
Smith, 297 S.W.3d at 268.
38
Davis, 329 S.W.3d at 807.
ANDRUS—29
in violation of Batson v. Kentucky39 and Texas Code of Criminal Procedure Article 35.261.
Andrus concedes that no Batson or Article 35.261 challenges were made at trial. However,
he asserts that he can show a prima facie case that these three jurors were struck due to their
race.40 Therefore, he suggests that this Court should abate his appeal and remand his case
to the trial court to conduct a proper Batson hearing addressing the remaining steps of the
Batson inquiry.41 However, without an objection or request for proper relief in the trial court,
Andrus failed to preserve this issue for appellate review.42 We decline Andrus’s invitation
to abate this appeal and remand the case to the trial court to resolve forfeited issue.
Within his appellate argument, Andrus also argues that his counsel was ineffective for
failing to raise any Batson or Article 35.261 objections. First, we note that this argument
creates a multifarious claim.43 Further, Andrus presents no evidence regarding his counsel’s
strategic decisions and only speculates that “[t]here is a reasonable probability that the State
39
476 U.S. 79 (1986).
40
See id. at 97 (holding that once a defendant establishes a prima facie case that
the State exercised its peremptory challenges in a discriminatory manner, the burden
shifts to the State to come forward with a neutral explanation for challenging black
jurors).
41
See id.42
T EX. R. A PP. 33.1.; Batiste v. State, 888 S.W.2d 9, 17 n.5 (Tex. Crim. App.
1994) (noting that Batson error is not immune from procedural default); Rosales v. State,
841 S.W.2d 368, 380 (Tex. Crim. App. 1992) (same); Mathews v. State, 768 S.W.2d 731,
733 (Tex. Crim. App. 1989) (holding Batson is not immune from procedural default).
43
T EX. R. A PP. P. 38.1.
ANDRUS—30
would not be able to provide race-neutral reasons” for removing the complained-of jurors.
We have repeatedly stated that an appellant must bring forward a record that supports his
claim of ineffective assistance of counsel.44 Allegations of ineffective assistance must be
firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness.45 Rarely will a reviewing court be provided the opportunity to make its
determination on direct appeal with a record capable of providing a fair evaluation of the
merits of the claim involving such a serious allegation. Thus, such claims are typically better
left to be raised in an application for writ of habeas corpus.46 We believe these principles
apply here. Points of error three, four, and five are overruled.
EXTRANEOUS ACT EVIDENCE
In his eighth point of error, Andrus contends that the judge abused his discretion by
improperly admitting extraneous act evidence in violation of Texas Rule of Evidence 403
during the punishment phase. Specifically, he complains that the judge admitted photos of
his gang tattoos that were irrelevant and that improperly inflamed the jury’s passions because
there was no specific information that he was a gang member. Andrus also complains that
the judge erroneously admitted evidence of his participation in the robbery of Alison Koenig.
Andrus did not object to the admission of the tattoo photos. Instead, he stipulated that
44
Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999); Jackson v.
State, 877 S.W.2d 768, 771–72 (Tex. Crim. App. 1994).
45
Thompson, 9 S.W.3d at 813.
46
Id. at 814.
ANDRUS—31
they were true and correct representations of his tattoos and agreed to their admission. He
further did not object to Detective Richard White’s testimony regarding those photos. We
also note that Andrus later testified that he was a member of the “59 Bounty Hunter Bloods”
gang. Regarding the robbery of Koenig, Andrus stipulated that he committed the offense and
was sentenced to the Texas Youth Commission for three years. Andrus made no objections
under Rule 403.
Because Andrus did not object to the complained-of evidence at trial, he has preserved
nothing for our review.47 Point of error eight is overruled.
CONSTITUTIONALITY OF ARTICLE 37.071
In points of error nine, ten, and eleven, Andrus raises several challenges pertaining
to the Texas death penalty scheme. In point of error nine, Andrus asserts that his sentence
is unconstitutional because “it was assigned based on Texas’ arbitrary system of
administering the death penalty.” In point of error ten, he argues that his death sentence
should be vacated because the instruction required by Texas Code of Criminal Procedure
Article 37.071, § 2(f)(4), defining mitigating evidence as “evidence that a juror might regard
as reducing the defendant’s moral blameworthiness,” restricts the evidence that the jury can
determine is mitigating. In point of error eleven, Andrus argues that the “10-12 jury
instruction” in the Texas capital- murder sentencing scheme violates the Eighth Amendment.
47
T EX. R. A PP. P. 33.1(a).
ANDRUS—32
We have previously rejected these issues, and we are not persuaded to reconsider them.48
Points of error nine, ten and eleven are overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his twelfth point of error, Andrus contends that his trial counsel were ineffective
for failing to adequately investigate and present mitigation evidence. Andrus asserts that no
mitigation investigation could have occurred because the mitigation expert withdrew ten
months prior to trial and was not replaced. He complains that counsel presented very little
mitigating evidence compared to the amount of aggravating evidence presented by the State.
He claims that counsel “did not investigate multiple possible mitigating factors and called
only two family members, despite knowing that favorable witnesses were available to
testify.” Andrus does not identify any of these possible witnesses. Andrus generally assails
counsel’s failure to “construct a persuasive narrative” or “humanize” him.
When confronted with an ineffective assistance of counsel claim from either stage of
a capital trial, we apply the two-pronged analysis set forth by the United States Supreme
Court in Strickland v. Washington.49 Under Strickland, an appellant must first demonstrate
that his trial counsel’s performance was deficient. Second, he must show that his counsel’s
48
See Threadgill v. State, 146 S.W.3d 654, 671–72 (Tex. Crim. App. 2004)
(finding that Texas death penalty scheme not “arbitrary”); Coble v. State, 330 S.W.3d
253, 296 (Tex. Crim. App. 2010) (addressing the mitigating-evidence instruction and the
“10-12 rule”); Russeau v. State, 171 S.W.3d 871, 886 (Tex. Crim. App. 2005) (addressing
the “10-12 rule”).
49
466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App.
1986) (adopting Strickland as applicable standard under Texas Constitution).
ANDRUS—33
deficient performance was so serious that it prejudiced his defense, rendering the trial unfair
and the verdict suspect.50 Appellate review of defense counsel’s representation is highly
deferential and presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance.51 The analysis is undertaken in light of the “totality of the
representation” rather than by examining isolated acts or omissions of trial counsel.52 The
fact that another attorney may have pursued a different tactic at trial is insufficient to prove
a claim of ineffective assistance.53
In most circumstances, the record on direct appeal will not be sufficient to show that
counsel’s representation was so deficient and so lacking in tactical or strategic
decision-making as to overcome the strong presumption that counsel’s conduct was
reasonable and professional.54 As this Court has previously explained, rarely will the trial
record contain sufficient information to permit a reviewing court to fairly evaluate the merits
of such a serious allegation: “In the majority of cases, the record on direct appeal is simply
undeveloped and cannot adequately reflect the failings of trial counsel.”55 A reviewing court
50
466 U.S. at 687.
51
Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
52
Id.53
Id.54
Id.55
Id.ANDRUS—34
could speculate on both sides of an issue, but ineffective assistance claims are not built on
retrospective speculation; they must “be firmly founded in the record.” 56
From the information available in the record before us, we can only speculate as to
why counsel acted or failed to act as they did.57 Without more, we must presume that counsel
acted pursuant to a reasonable trial strategy. Point of error twelve is overruled.
We affirm the trial court’s judgment.
DELIVERED: December 9, 2015
DO NOT PUBLISH
56
Id.57
Id.