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Cecil Henderson v. State ( 2006 )


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  • Opinion issued June 29, 2006





























    In The

    Court of Appeals

    For The

    First District of Texas  



    NO. 01-05-00499-CR

    __________



    CECIL RAY HENDERSON, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 208th District Court

    Harris County, Texas

    Trial Court Cause No. 932,475



    MEMORANDUM OPINION  

    A jury found appellant, Cecil Ray Henderson, guilty of the offense of capital murder. (1) Because the State did not seek the death penalty, the trial court automatically assessed his punishment at confinement for life. (2)

    In five points of error, appellant contends that the trial court erred in admitting into evidence gruesome photographs, the trial court erred in denying his motion to suppress his videotaped statement, and his trial counsel was ineffective when he failed to object to inadmissible victim character testimony and to the admission of hearsay documents.

    We affirm.

    Facts

    Houston Police Officer M. Garcia testified that on December 2, 2002, he was dispatched to a robbery and met with two witnesses, Natalie Reyes and Carmen Flores. Reyes and Flores told Garcia that the complainant, known by the women as "Mr. Barry," was robbed while working in his ice cream truck in front of Reyes's house. Reyes told Garcia that firearms had been used in the robbery, that the complainant's truck had been taken by three suspects, and that the complainant might still be inside the truck. Reyes also told Garcia that the complainant's ice cream truck had a picture of Jesus on the side of it, and Garcia relayed this information to a police dispatcher. Garcia also recovered a shell casing in front of Reyes's house. Approximately one hour later, Houston Police Officer R. Plotner located the complainant's ice cream truck burning in an industrial area. Garcia drove to the scene, and he saw the complainant's body lying face down inside his burned truck. Natalie Reyes testified that on that night, she and her sister, Carmen Flores, went outside Reyes's house with her children to buy ice cream from the complainant. While she was outside, she saw four males standing near the complainant's truck and a blue Oldsmobile parked nearby. When Reyes went back inside her house, she heard what she thought was a firecracker. She looked out her window, heard noises like kicking and someone climbing into the truck's window, and saw two men inside the truck fighting with the complainant. She heard gunshots and called for emergency assistance. She then saw the complainant's truck drive away at a fast speed, followed by the blue Oldsmobile.

    Tomas Garcia, a security officer, testified that on that night, he was working in the industrial area where the complainant's truck was eventually located. He saw a blue car drive by very slowly, and then he saw what he thought was a taco truck. He subsequently saw some men pushing the blue car, heard an explosion, and went outside and saw the complainant's truck on fire.

    Houston Fire Department Arson Division Crime Lab Supervisor T. Wood testified that in the early morning hours of December 3, 2002, he was dispatched to the location where the complainant's truck was burning. He took photographs, obtained physical evidence, and found evidence indicating that the fire was intentionally set.

    John Robinson, who knew appellant from the neighborhood, testified that in the early morning hours of December 3, 2002, Jermaine Apollo Thomas, Isaiah Gooden, Tristan Terry, and appellant came to his house. Appellant told Robinson that a blue Oldsmobile that they had been driving would not start, and appellant asked Robinson's son, John Bradford, to help them with their car.   Bradford helped appellant and the others with their car. At some point, Robinson also saw appellant attempt to put a plastic bag under his deck. He suspected that the bag contained drugs, but appellant told him it was money. When Robinson objected to appellant's placing the bag under his deck, appellant got the bag and then the four men drove away in their car. The next morning, Robinson learned of the criminal events of the previous evening and called Crimestoppers.

    John Bradford testified that, on the morning of December 3, 2002, after appellant and Thomas, Gooden, and Terry came to his father's house, he went to get gas for their car. When he returned from getting gas, appellant and the others were hiding. Gooden had a gun and told Bradford that he had killed someone. Bradford also noticed that inside the car there were boxes containing potato chips and candy stacked up to the car's roof. Once the men got their car started, appellant got out of the car and retrieved something from under Robinson's porch, and the men left in their car.

    Houston Police Officer B. Harris testified that he received a tip from Crimestoppers and spoke with Robinson and Bradford. Harris then obtained an arrest warrant for Gooden. When police officers arrested Gooden, they found the complainant's credit cards and driver's license in Gooden's jacket. Police officers also recovered the blue Oldsmobile and found items like those sold by the complainant inside the car. When officers subsequently arrested Thomas and Terry, they found a gun that was determined to be the murder weapon at the house of Thomas's girlfriend. Appellant subsequently surrendered himself to Harris County Deputy Constables. Officer Harris then interviewed and interrogated appellant, and appellant provided a videotaped statement, which was introduced into evidence during his trial. During his statement, appellant gave somewhat conflicting stories, but admitted to his participation in the robbery of the complainant. Appellant identified Gooden as the man that shot the complainant. Appellant stated that after Gooden had first shot the complainant, appellant told Gooden that the complainant was not dead and that Gooden needed to "go back" and "finish him." Gooden then shot the complainant two more times.

    Photographic Evidence

       In his first point of error, appellant argues that he was denied a fair trial because the trial court admitted gruesome photographs into evidence. He asserts that the photographs were not relevant and prevented the jury from rendering an unbiased judgment based on properly admitted evidence. He complains of the admission of "numerous gruesome photographs of the [complainant's] body at the scene" and of "numerous grisly photographs of the [complainant's] autopsy." Appellant contends that the photographs were particularly prejudicial because of their repetitiveness.

    At trial, appellant objected to seven crime scene photographs, labeled State's exhibits 22, 24, 27-30, and 56, which depicted the complainant's burned body and truck, on the grounds that these photographs were not related to the capital murder indictment and that they were "just generally gruesome." The State argued that although arson was not part of the capital murder charge, the photographs were relevant and not unfairly prejudicial because they showed "part of the conduct of all of the defendants throughout the entire episode," including the taking of property from the complainant's truck and the destruction of evidence. The State further noted that the photographs showed the extent of the burning of the interior of the truck and were relevant to appellant's mental state in trying to destroy evidence related to his guilt. The State also asserted that some of the photographs provided different angles and views of the crime scene. The trial court excluded part of one of the photographs, but overruled appellant's objections to the remaining photographs. The trial court noted that the burning of the truck and the complainant's body were all part of one event, that four of the crime scene photographs showed bullet entry or exit wounds on the complainant's body, and that the photographs were, thus, more probative than prejudicial. Arson investigator Wood used these photographs during his testimony explaining the origin of the fire in the truck and the resulting damage to the truck and its contents.

    At trial, appellant also objected to seven autopsy photographs, labeled State's Exhibits 88-94. Appellant argues that the admission of these photographs was improper because he never contested the fact that the complainant died as a result of gun shot wounds. The trial court sustained appellant's objection to State's Exhibit 88, a close up of photograph of the complainant's head, but admitted the other photographs, which showed different views of the wounds on the complainant's body. R. Milton, an assistant medical examiner, used these photographs during his testimony about the complainant's wounds and cause of death.

    We review a trial judge's decision to admit evidence for an abuse of discretion. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). We note that crime scene photographs are almost always relevant because they "depict[] the reality of [the] offense," and may show the manner in which it occurred. Chamberlain v. State, 998 S.W.2d 230, 237 (Tex. Crim. App. 1999). We further note that autopsy photographs are generally admissible, unless they depict mutilation of the victim caused by the autopsy itself. Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002); Rojas v. State, 986 S.W.2d 241, 249 (Tex. Crim. App. 1998).

    Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403. However, rule 403 favors admissibility and contains a presumption that relevant evidence is more probative than prejudicial. Hayes, 85 S.W.3d at 815. A rule 403 analysis should include, but is not limited to, the following factors: (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1991). In determining the prejudicial effect of photographs, a court should consider (1) the number of photographs, (2) the size of the photographs, (3) whether they are in color or black and white, (4) the detail shown in the photographs, (5) whether the photographs are gruesome, (6) whether a body shown in the photographs is naked or clothed, and (7) whether the photographed body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant's detriment. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000). Photographs provide powerful visual evidence of the offense, and a trial court does not abuse its discretion in admitting photographs of a victim into evidence merely because they may be gruesome. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995).

    State's exhibits 27, 28, 29, and 30 are close-up photographs showing the complainant's gun shot wounds. State's exhibits 22 and 24, as well as State's exhibit 56, as modified by the trial court, are taken from different angles and show views of the burned interior of the truck, the contents of the truck, and the complainant's body inside the truck. Finally, State's Exhibits 89-94 are autopsy photographs depicting fairly close-up views of the complainant's wounds. In regard to State's exhibits 22, 24, 27-30, and 56, we conclude that these photographs were probative of the crime scene and the injuries received by the complainant. The crime scene photographs illustrate that appellant and the others involved in the crime attempted to destroy any incriminating evidence left in the complainant's truck. Additionally, appellant does not contend that these photographs are any more gruesome than the crime scene as it was found by police officers. In regard to the autopsy photographs, we note that they do not depict any mutilation of the complainant's body caused by the autopsy itself. Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991). Like the crime scene photographs, these photographs show only the injuries that the victim received and are no more gruesome than would be expected. See id. Furthermore, the photographs, which were taken from different angles, were not cumulative or repetitive. Accordingly, we hold that the photographs were relevant, that they were not overly gruesome, and that the trial court did not abuse its discretion in admitting these photographs into evidence on the grounds that the danger of unfair prejudice did not substantially outweigh the probative value of the photographs.

    We overrule appellant's first point of error.

    Motion to Suppress Statement

    In his second point of error, appellant argues that the trial court erred in denying his motion to suppress his videotaped statement because he asked for a lawyer before giving the statement. In his third point of error, appellant contends that the trial court erred in denying his motion to suppress his videotaped statement because the videotaped statement does not contain an express waiver of appellant's rights, and that, under the Texas Code of Criminal Procedure, "the tape must be rolling" when appellant waives his rights. See Tex. Code Crim. Proc. Ann. art. 38.22(3)(a)(2) (Vernon Supp. 2005).

    We review a trial court's denial of a motion to suppress a custodial statement for an abuse of discretion. Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App. 2000). The trial court is the sole judge of the credibility of witnesses and the weight of their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)). We afford almost total deference to the trial court's determination of the facts, especially when that determination is based on issues of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply the same deference in reviewing the trial court's rulings on mixed questions of law that turn upon a credibility evaluation. Id. If a mixed question of law and fact does not turn on a witness's credibility and demeanor, however, we review the trial court's determination de novo. Id.

    In reviewing a trial court's ruling, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, this general rule is inapplicable where the suppression issue has been consensually re-litigated by the parties during the trial on the merits. Id. Where the State raises the issue at trial without objection or with subsequent participation on the inquiry by the defense, the defendant has made an election to re-open evidence, and consideration of the relevant trial testimony is appropriate in our review. Id. In the instant case, because appellant did not object when the State reintroduced the suppression issues at trial and, indeed, fully participated in the re-litigation of the issues, we may properly consider the witnesses' trial testimony in our review of the trial court's suppression ruling.

    Right to a lawyer

    In regard to appellant's second point of error, an accused has the right to have a lawyer present prior to and during any questioning. See Tex. Code Crim. Proc. Ann. art. 38.22(2)(a)(3) (Vernon Supp. 2005). When an accused requests an attorney, all questioning must cease. Edwards v. Arizona, 451 U.S. 477, 485, 101 S. Ct. 1880, 1885 (1981); Cobb v. State, 85 S.W.3d 258, 263 (Tex. Crim. App. 2002).

    Appellant notes that at the motion to suppress hearing, Lafeshe Coleman, appellant's girlfriend, testified that she was with appellant on the night that he surrendered himself to the constables. She stated that she instructed appellant not to speak unless he had a lawyer and that the deputy constables heard her instructions. Marsha Henderson, appellant's mother, testified that she arranged for appellant to surrender himself to Deputy Constable Barnett because she trusted Barnett. She told Barnett that appellant was not to talk until he had a lawyer, and she made appellant repeat her instructions to Barnett.

    However, all the officers who spoke with appellant after he surrendered himself testified that appellant did not ask for a lawyer. Houston Police Officer B. Harris testified that after appellant surrendered himself to two Harris County Deputy constables, he conducted a preliminary interview with appellant and advised him of his rights. Appellant confirmed to Harris that he understood his rights and agreed to waive his rights. Harris further stated that appellant did not request an attorney at any time. In fact, appellant told Harris that he wanted to make a videotaped statement, and the officers then recorded the statement.

    Houston Police Officer B. McDaniel testified that he was present when Deputy Constables Barnett and C. Lofland brought appellant into the police station, that he placed appellant in an interview room and read him his legal rights, and that appellant said that he understood his rights. McDaniel videotaped appellant's statement. McDaniel stated that when Harris began speaking with appellant during the preliminary interview, Harris informed appellant of his legal rights, that appellant acknowledged that he understood those rights, and that when appellant gave his videotaped statement Harris again gave appellant his legal warnings. McDaniel never heard appellant ask for an attorney.

    Deputy Constable Barnett did not testify at the motion to suppress hearing because he had suffered a stroke and experienced memory loss. However, at trial, Barnett testified that he was regaining his long term memory, that he had a "full memory" of the events of December 9, 2002, the night that appellant surrendered himself, and that appellant never asked for a lawyer. Barnett also denied that appellant's mother or girlfriend had ever asked for a lawyer. He further stated that if appellant had asked for a lawyer, he would have included that information in his report. Deputy Constable Lofland also testified at trial, and stated that appellant never asked for a lawyer and that if appellant had asked Barnett for a lawyer, he would have expected Barnett to tell him.

    The trial court denied appellant's motion to suppress the videotaped statement and subsequently entered the following pertinent findings and conclusions:

    [Appellant] was read the statutory warnings pursuant to Tex. Code Crim. Proc. art. 38.2 prior to making his statement. The rights were read in the patrol car before travel to the police [station] and at the police station three more times prior to custodial interrogation of the [appellant].



    The statutory warnings concerned the following: (1) his right to remain silent and not make any statement at all and that any statement he made may be used against him and probably will be used against him at his trial; (2) any statement he made may be used as evidence against him in court; (3) he had the right to have a lawyer present to advise him prior to and during any questioning; (4) if he was unable to employ a lawyer, he had the right to have a lawyer appointed to advise him prior to and during any questioning; and (5) he had the right to terminate the interview at any time.



    [Appellant] understood the rights set out in [the paragraph] above, including that the statement may be used against him.



    The rights contained in [the paragraph] above are contained on the videotaped statement of the [Appellant] and the [Appellant] intelligently, knowingly, and voluntarily waive[d] those rights as set out in [the paragraph above] on his videotaped statement.



    The court further found that McDaniel, Harris, and Lofland were credible witnesses, that McDaniel and Lofland's testimony that appellant never asked for a lawyer was true, that Coleman and Henderson were not credible witnesses, and that Henderson's testimony that appellant asked for a lawyer in Barnett's and Lofland's presence was not true.

    Here, at the suppression hearing, the officers who were with appellant on the night appellant surrendered himself testified that appellant never requested an attorney, that appellant received his legal warnings numerous times, that appellant acknowledged that he understood his rights, and that he voluntarily provided a videotaped statement. The only evidence that appellant requested an attorney was appellant's mother's testimony that she made appellant repeat her request to Deputy Constable Barnett that appellant wanted to speak with a lawyer and appellant's girlfriend's testimony that she instructed appellant not to speak until he met with a lawyer. However, the trial court found these two witnesses not credible, and specifically found appellant's mother's testimony concerning appellant's request for a lawyer to be untrue. Furthermore, Deputy Barnett testified at trial that, despite some memory loss, he had a full memory of the events in question, and that appellant never requested a lawyer.

    Accordingly, we hold that the trial court did not abuse its discretion in denying appellant's motion to suppress his videotaped statement on the ground that he asked for a lawyer prior to giving his statement.

    We overrule appellant's second point of error.

    Express waiver of legal rights

    In regard to appellant's third point of error, appellant asserts that his videotaped statement does not show that he expressly waived his legal rights. Article 38.22(3)(a)(2) provides: No oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:



    (2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.

    Tex. Code Crim. Proc. Ann. art. 38.22(3)(a)(2) (Vernon Supp. 2005).

    The State notes that the trial court expressly found that appellant "intelligently, knowingly, and voluntarily waive[d] those rights as set out in Paragraph 3 [of the trial court's findings of fact] on his videotaped statement." The State further asserts that article 38.22 does not provide that a waiver of rights must be expressly stated on the recording and that, even assuming that the videotaped statement contained no express waiver, appellant impliedly waived his rights by continuing with the interview after he had been given the statutory warnings.

    Our review of the videotaped statement supports the trial court's finding that appellant "intelligently, knowingly, and voluntarily waive[d] those rights as set out in Paragraph 3 [of the trial court's findings of fact] on his videotaped statement." Furthermore, as appellant concedes, the Court of Criminal Appeals has held that "the law does not require that the recording reflect an express waiver of [legal] rights." Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000) (citing Etheridge v. State, 903 S.W.2d 1, 16 (Tex. Crim. App. 1994)). Appellant does not contend that his videotaped statement was otherwise involuntary. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress his videotaped statement on the ground that his statement did not contain an express waiver of his legal rights.

    We overrule appellant's third point of error.

    Ineffective Assistance

    In his fourth and fifth points of error, appellant argues that his trial counsel was ineffective because he failed to object to inadmissible victim-character testimony and to the admission of hearsay documents.

    Appellant complains that during the guilt phase of trial, the complainant's wife testified that the complainant had five children, ages four to eleven, that the complainant had studied civil and electrical engineering, that he was Catholic and went to Mass every day, that he would take his children to Mass, that he would drop his children off at school, and that he would stay home with his children when they were sick. Appellant also complains about the admission of a document from the Bureau of Alcohol, Tobacco, and Firearms (ATF) showing that the gun used to kill the complainant was owned by the mother of one of appellant's co-defendants and the testimony of Houston Police Officer R. Moreno establishing the same facts concerning the ownership of the gun used in the murder.

    The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland requires a two-step analysis whereby appellant must show both that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Vasquez v. State, 830 S.W.2d 948, 949 (Tex. Crim. App. 1992). Strickland defines reasonable probability as a "probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at 2068. It is appellant's burden to prove ineffective assistance, and he must overcome the strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Additionally, an ineffective assistance claim must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

    Here, no motion for new trial was filed, and there is nothing in the record that evidences appellant's trial counsel's reasons for not objecting to the "character testimony" or the hearsay. In regard to the testimony from the complainant's wife, the State asserts that such testimony was not impermissible victim impact evidence because it does not show the physical or psychological effect of the crime on the victim or his family. In Matchett v. State, 941 S.W.2d 922, 931 (Tex. Crim. App. 1996), the Court of Criminal Appeals held that testimony from a victim's wife that she and the victim had been married for twenty-five years, that they had five children, and that the victim was home alone on the night of his murder, together with photographs depicting her, her husband, and some of their friends was not impermissible victim impact evidence. Here, appellant's trial counsel may have considered the complained of testimony admissible or that an objection to such testimony would be futile. In regard to the hearsay, the State notes that appellant does not contend that the ownership of the murder weapon was not provable by other means. Appellant's trial counsel may have determined that the State could have proved the ownership of the weapon with additional evidence that would have subjected appellant to evidence of a more prejudicial nature. Generally, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). Accordingly, we hold that appellant has not established that his trial counsel's performance fell below an objective standard of reasonableness.

    We overrule appellant's fourth and fifth points of error.

    Conclusion

    We affirm the judgment of the trial court.





       Terry Jennings

    Justice



    Panel consists of Justices Jennings, Hanks, and Higley.



    Do not publish. Tex. R. App. P. 47.2(b).

    1.

    See Tex. Pen. Code Ann. § 19.03(a)(7)(A) (Vernon Supp. 2005).

    2.

    Id. § 12.31(a) (Vernon Supp. 2005); Tex. Code Crim. Proc. Ann. art. 37.071, § 1 (Vernon Supp. 2005).