Timothy Rashon Warner v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-464-CR
TIMOTHY RASHON WARNER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Timothy Rashon Warner appeals from his conviction and ninety-
nine-year sentence for causing serious bodily injury to a child. In three points,
he argues that the trial court erred by admitting into evidence statements
obtained from Appellant in violation of Miranda,2 by admitting statements
obtained from Appellant in violation of his right to counsel, and by denying his
1
… See Tex. R. App. P. 47.4.
2
… Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); see Tex.
Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005).
request for a continuance when a witness was unavailable to testify at the
trial’s punishment phase. We affirm.
Background 3
On August 11, 2005, Appellant took the lifeless body of three-year-old
Sierra Odom to a hospital emergency room.4 He told hospital personnel that he
had just been in a car wreck and that Odom had been thrown from her car seat
and injured. Efforts to revive Odom failed. Because the child appeared to have
been dead longer than suggested by Appellant’s story and because of the
relatively minor damage to his vehicle, hospital personnel believed Appellant had
concocted the car-wreck story to hide a crime, and they notified the police.
Arlington Police Detective Richard Nutt went to the hospital and
interviewed hospital personnel. He introduced himself to Appellant and asked
Appellant to accompany him to the police station and give a statement, and
Appellant agreed. At the station, Detective Nutt gave Appellant the Miranda
warnings and interviewed Appellant. At first, Appellant maintained that Odom
had been injured in the car wreck. Later in the same interview, however, he
admitted that Odom was injured in Appellant’s home while Appellant was
3
… Because Appellant does not contest the sufficiency of the evidence
to support his conviction, we will set out only so much of the evidence as
required to put Appellant’s points into context.
4
… Sierra was one of Appellant’s foster children.
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attempting to discipline her. At the end of the interview, Detective Nutt drove
Appellant back to Appellant’s house, where a search—to which Appellant’s
wife had consented—was underway.
Detective Nutt then took Appellant’s wife to the station, where another
detective interviewed her. After Detective Nutt and Appellant’s wife had left
the house, Appellant conversed with the officers searching his home. He
eventually told them that he had shoved Odom toward a bookcase, causing her
head to hit the bookcase, and that he had staged the car accident.
In the meantime, Detective Nutt obtained a warrant for Appellant’s arrest.
He drove Appellant’s wife back to Appellant’s home and arrested Appellant.
Detective Nutt then took Appellant to the police station and read him his
Miranda rights again. A few minutes into the interview, the following colloquy
occurred:
Detective Nutt: Why don’t you tell us about last night.
Appellant: Alright. I just don’t want to make a mistake. If
I’m gonna make a mistake, I—I can’t afford an
attorney. Did I understand, the court appoint
you one?
Detective Nutt: If you want an attorney, that is your right.
Appellant: The court appoint you one? Is that real, or not?
Detective Nutt: Yeah, that’s real.
Detective Lopez: Yeah, that’s one of the rights that he, that
Detective Nutt (inaudible). That’s one of the
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right’s that’s afforded to you. And that was one
of the rights that, that Detective Nutt read to
you, if you can’t afford an attorney, one may be
appointed for you. I don’t—without reading it
directly off the card, I can’t tell you exactly
word-for-word how it reads, but that—that’s the
case. Again, that’s not something that we
handle.
Detective Nutt: That’s your decision to make, if you want
(inaudible).
Appellant: I just want to tell the truth.
Appellant then told the detectives that he had grabbed Odom by the face and
shoved her into a bookcase and that he had faked the car crash to cover up the
injuries.
A grand jury indicted Appellant for intentionally or knowingly causing
serious bodily injury to a minor with an unknown deadly weapon. A jury
convicted Appellant as charged and made an affirmative finding to the deadly-
weapon allegation. But the jury deadlocked on punishment, and the trial court
granted Appellant’s motion for a mistrial on punishment. At a second trial on
punishment, another jury assessed punishment at ninety-nine years’
incarceration, and the trial court rendered judgment accordingly.
Discussion
1. Miranda violation
In his first point, Appellant argues that the trial court erred by admitting
testimony about the statements he made to the police officers who searched
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his home after his first interview with Detective Nutt and before Detective Nutt
arrested him because those statements were the result of a custodial
interrogation and those officers did not warn him of his Miranda rights. The
State argues that Appellant waived his complaint by failing to object each time
witnesses testified about the statements in question.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). A party must continue to object each time the objectionable
evidence is offered. Ethington v. State, 819 S.W.2d 854, 858–59 (Tex. Crim.
App. 1991). A trial court’s erroneous admission of evidence will not require
reversal when other such evidence was received without objection, either
before or after the complained-of ruling. Leday v. State, 983 S.W.2d 713, 718
(Tex. Crim. App. 1998); Johnson v. State, 803 S.W.2d 272, 291 (Tex. Crim.
App. 1990), cert. denied, 501 U.S. 1259 (1991), overruled on other grounds
by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). This rule
applies whether the other evidence was introduced by the defendant or the
State. Leday, 983 S.W.2d at 718.
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When one of the officers who searched Appellant’s home—John
Gonzales—testified, Appellant made three objections to Officer Gonzales’s
testimony about Appellant’s statements. First, when the prosecutor asked
Officer Gonzales about a statement Appellant made to his wife before Detective
Nutt took her to the police station, Appellant objected, and the court ruled, as
follows:
[APPELLANT’S COUNSEL]: Your honor, I want a running
objection to all of this testimony from the sergeant as to what
[Appellant] said, because it’s a violation of Miranda and any other
provision of the law. And this line of testimony is completely out
of bounds for a fair trial.
THE COURT: Your objection is overruled, and you may have
a running objection to the testimony regarding a conversation that
the Defendant had with his wife.
Next, when the prosecutor asked Officer Gonzales what Appellant said when
Officer Gonzales asked him what had happened, Appellant made the following
objection:
[APPELLANT’S COUNSEL]: Your honor, I’m going to have to
object to hearsay. He asked for hearsay.
THE COURT: Okay. You have a running objection to the
statements made by the Defendant at the home, and it’s overruled.
Finally, when the prosecutor asked Officer Gonzales what Appellant said when
the officer told him he did not believe Appellant’s story, Appellant objected,
[APPELLANT’S COUNSEL]: Your honor, I’m going to object
to what he said at this time. He has not been warned by this
officer of his Miranda rights.
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THE COURT: Okay. And you have a running objection to all
of the statements made by the Defendant in the home, and it’s
overruled.
But when another detective—Daniel Rhodes—testified extensively about
Appellant’s in-home statements, Appellant made no objection.
A running objection requested by defense counsel, if granted by the trial
court, may be sufficient to preserve error when another witness testifies to the
same matter if the objection was timely, stated the specific grounds, and
requested the ruling later denied. Ethington, 819 S.W.2d at 858–59; Scaggs
v. State, 18 S.W.3d 277, 292 (Tex. App.—Austin 2000, pet. ref’d); see
Sattiewhite v. State, 786 S.W.2d 271, 283 n.4 (Tex. Crim. App. 1989)
(observing that there are situations in which a running objection may be more
appropriate than a redundant and disruptive series of objections) cert. denied,
498 U.S. 881 (1990). In Ford v. State, the court of criminal appeals held that
a running objection extended to other witnesses when the defendant asked for
a running objection to “extend to all witnesses,” if they testified to the same
type of matter. 919 S.W.2d 107, 113 (Tex. Crim. App. 1996); see also
Campos v. State, 256 S.W.3d 757, 760 (Tex. App.—Houston [1st Dist.] 2008,
pet. ref’d).
In the case before us, unlike Ford, Appellant did not ask for his running
objection to Officer Gonzales’s testimony to apply to all witnesses. See
Scaggs, 18 S.W.3d at 292–93. And Appellant failed to object when Daniel
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Rhodes testified about Appellant’s statements in the home. Thus, he failed to
preserve his complaint as to that testimony. Leday, 983 S.W.2d at 718. We
overrule Appellant’s first point.
2. Denial of Motion for Continuance
In his second point, Appellant argues that the trial court erred by denying
his motion for continuance at the second punishment trial when a
witness—Appellant’s wife—was unavailable to testify, thereby violating
Appellant’s Confrontation Clause rights.
During the first trial’s guilt/innocence phase, Appellant’s wife testified
that she was asleep on the night of Odom’s death when Appellant called her
to a bedroom. When she went to the bedroom, she could see that something
was wrong with Odom, who soon fell unconscious and died. Appellant’s wife
dressed the corpse and helped Appellant strap it into a car seat in their vehicle.
At the time of the second punishment trial, Appellant’s wife was
apparently recuperating from a gunshot wound in a Louisiana hospital. The
State read her testimony from the prior trial to the jury. The next day,
Appellant orally moved for a continuance to secure her attendance at trial.
Appellant’s counsel represented to the trial court that Appellant’s wife would
testify that another child in Appellant’s home injured Odom. The trial court
requested additional information about Appellant’s wife’s condition. Appellant’s
counsel called the Louisiana hospital and learned that Appellant’s wife was in
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intensive care and on a ventilator. The trial court denied Appellant’s request for
continuance.
A motion for continuance must be written or sworn; otherwise, it
preserves nothing for review. Tex. Code Crim. Proc. Ann. arts. 29.03, 29.08
(Vernon 2006); Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1131 (2000). Because Appellant’s motion was
not in writing, he preserved nothing for our review, and we overrule his second
point.
3. Violation of Right to Counsel
In his third point, Appellant argues that the trial court erred by admitting
into evidence Appellant’s second videotaped statement to Detective Nutt after
the point in the interview when Appellant purportedly requested counsel.
Appellant does not identify where in the record he objected to Detective Nutt’s
testimony or the admission of the interview recordings on this basis, and our
own review of the record reveals no such objection. Further, when the State
offered the interview video recordings, Appellant stated that he had no
objection to them.
A defendant waives error if he affirmatively asserts that he has no
objection when evidence is offered, even if he made an otherwise error-
preserving objection before trial or outside the presence of the jury. See Jones
v. State, 962 S.W.2d 158, 167 (Tex. App.— Fort W orth 1998, no pet.);
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Tuffiash v. State, 948 S.W.2d 873, 876 (Tex. App.—San Antonio 1997, pet.
ref’d). Because Appellant did not object to the admission of his statements
made after his purported demand for counsel and affirmatively stated that he
had no objection to their admission, we hold that he waived his complaint, and
we overrule his third point.
Conclusion
Having overruled all of Appellant’s points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 30, 2009
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