Anthony Oxford v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-199-CR
ANTHONY OXFORD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellant Anthony Oxford was sentenced to twenty years’ imprisonment
for aggravated robbery. In a single point, Oxford claims that the trial court
erred by admitting into evidence an audio recording of police questioning him.
Specifically, Oxford claims that the police questioning violated article 38.22 of
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… See Tex. R. App. P. 47.4.
the Texas Code of Criminal Procedure and that, consequently, the audio
recording of the questioning was inadmissible. See Tex. Code Crim. Proc. Ann.
art. 38.22 (Vernon 2005). We will affirm.
II. B ACKGROUND
Alejandra Olivos was in her car in a shopping mall parking lot when
Oxford and another man approached her. The two men pointed a gun at
Olivos, stole her purse, and then ran away. Two bystanders proceeded to
chase down Oxford and the other man involved. One of the bystanders
eventually caught Oxford behind a nearby restaurant and detained him until the
police arrived.
When the police arrived, they placed Oxford in the backseat of a police
car, but they did not handcuff him. The police car was equipped with a video
camera that recorded sounds inside the car.2 W hile in the car, Oxford told
Officer Gerald Little that he witnessed the robbery, although he was not a
participant. Officer Little asked Oxford questions about the robbery, which the
video camera audibly recorded. The officer did not give Oxford the statutory
warnings under article 38.22 before questioning him. Olivios arrived at the
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… The video portion of the recording remained focused on the front
exterior of the car throughout the questioning.
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scene and identified Oxford as one of the men who robbed her, and Oxford was
arrested.
The State charged Oxford with the offense of aggravated robbery, to
which he pleaded not guilty. During trial, the State offered into evidence the
DVD from the video camera, which the trial court admitted over Oxford’s
objection. The jury found Oxford guilty, and the trial court sentenced him to
twenty years’ imprisonment.
III. S TANDARD OF R EVIEW
A trial court’s evidentiary rulings are reviewed on appeal under an abuse
of discretion standard. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op. on reh’g). A trial court abuses its discretion when its
decision lies outside the zone of reasonable disagreement. Casey v. State, 215
S.W.3d 870, 879 (Tex. Crim. App. 2007). As long as the trial court’s ruling
falls within the zone of reasonable disagreement, we will affirm its decision.
Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
0IV. C USTODIAL INTERROGATION
In his only point on appeal, Oxford argues that the police took him into
custody when they placed him in the back of the police car and that, therefore,
Officer Little’s questioning constituted a custodial interrogation. Consequently,
he argues that the police should have given him the specific warnings set forth
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in article 38.22 of the code of criminal procedure before questioning him. See
Tex. Code Crim. Proc. Ann. art. 38.22. Because he was not given those
warnings, Oxford claims that the recording should have been excluded from
evidence. The State argues that Oxford was not in custody or subject to
interrogation during the recording.
The prosecution may not use statements, whether exculpatory or
inculpatory, stemming from the custodial interrogation of the defendant unless
it demonstrates the use of procedural safeguards effective to secure the Fifth
Amendment privilege against self-incrimination. Miranda v. Arizona, 384 U.S.
436, 444, 86 S. Ct. 1602, 1612 (1996); Miller v. State, 196 S.W.3d 256, 267
(Tex. App.—Fort Worth 2006, pet. ref’d). Article 38.22 requires that certain
warnings must be given to a defendant before the defendant’s oral statements
can be used at trial; however, this requirement only applies when the
defendant’s statements are made during a custodial interrogation. See Tex.
Code Crim. Proc. Ann. art. 38.22.
Custodial interrogation is defined as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way.” Miranda, 384 U.S.
at 444, 86 S. Ct. at 1612 (1966). Four factors relevant to determining
whether a person is in custody are the (1) probable cause for arrest, (2)
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subjective intent of the police, (3) focus of the investigation, and (4) subjective
belief of the defendant. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim.
App. 1996). Factors two and four have become irrelevant except to the extent
that they may be manifested in the words or actions of police officers;
therefore, the custody determination is based entirely upon objective
circumstances. Stansbury v. California, 511 U.S. 318, 322–23, 114 S. Ct.
1526, 1528–29 (1994); Dowthitt, 931 S.W.2d at 254.
Turning to the custody determination, Texas courts have identified four
general situations which may constitute custody: (1) when the suspect is
physically deprived of his freedom of action in any significant way, (2) when
law enforcement officers tell a suspect that he cannot leave, (3) when law
enforcement officers create a situation that would lead a reasonable person to
believe that his freedom of movement has been significantly restricted, and (4)
when there is probable cause to arrest and law enforcement officers do not tell
the suspect that he is free to leave. See, e.g., Arthur v. State, 216 S.W.3d 50,
57 (Tex. App.—Fort Worth 2007, no pet.) (citing Dowthitt, 931 S.W.2d at
255). In the first three situations, the restrictions upon freedom of movement
must amount to the degree associated with an arrest as opposed to an
investigative detention. Dowthitt, 931 S.W.2d at 255 (citing Stansbury, 511
U.S. at 322–23, 114 S. Ct. at 1528–29). In the fourth situation, the officers’
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knowledge of probable cause must be manifested to the suspect. Id. The law
permits an officer a reasonable time to delay potential witnesses or suspects to
determine the facts of a given situation. See Parker v. State, 710 S.W.2d 146,
147 (Tex. App.—Houston [14th Dist.] 1986, no pet.).
Here, when Officer Little placed Oxford in his police car, the police had
just recently arrived at the scene and were unsure as to the details of the
robbery. Before Officer Little asked Oxford any questions, Oxford said that he
had simply walked up to another robbery in progress and that he was not a
participant in the robbery. Officer Little’s questions then focused on what
Oxford witnessed and the identity of the robber. See Dowthitt, 931 S.W.2d
at 254. The officer was attempting to obtain information about the robbery in
general and determine who was involved. See id. Oxford was not handcuffed
during this questioning, and Officer Little testified that Oxford was not under
arrest and that he did not believe he had probable cause to arrest Oxford at that
time. See Parker, 710 S.W.2d at 147 (determining that defendant was not in
custody when he was not arrested, even though he was detained by officer for
questioning and not free to leave); Skinner v. State, No. 01-95-00576-CR,
1996 WL 227404, at *2 (Tex. App.—Houston [1st Dist.] May 2, 1996, no
pet.) (not designated for publication) (noting that detention in a locked squad
car does not in and of itself constitute an arrest). In fact, Oxford himself
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testified that he believed he would be free to leave after the questioning was
complete. Oxford was not handcuffed and placed under arrest until after Olivos
identified him as one of the robbers, then the police had probable cause to
arrest him. See Gamble v. State, No. 02-05-00457-CR, 2006 WL 3334229,
at *3–4 (Tex. App.—Fort Worth Nov. 16, 2006, pet. ref’d) (not designated for
publication) (holding that officer did not have probable cause to arrest
defendant until after a reasonable time of questioning, so defendant was not in
custody until arrested). After his arrest, the police did not ask him any more
questions on the recording.
Oxford was not in custody at the time of the audio recording and,
consequently, Officer Little’s questioning was not a custodial interrogation. See
Montgomery, 810 S.W.2d at 391. Because specific warnings are only required
to be given before a custodial interrogation, we hold that the trial court did not
abuse its discretion by allowing the audio recording to be admitted into
evidence. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5; Montgomery, 810
S.W.2d at 391.
V. H ARM A NALYSIS
Even if the trial court erred by admitting the audio recording, any error
was harmless. Article 38.22, section 3 of the code of criminal procedure is a
procedural evidentiary rule rather than a substantive exclusionary rule.
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Davidson v. State, 25 S.W.3d 183, 186 (Tex. Crim. App. 2000). Therefore,
we apply rule 44.2(b) and disregard the error if it did not affect Oxford’s
substantial rights. Tex. R. App. P. 44.2(b); see Mosley v. State, 983 S.W.2d
249, 259 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070
(1999); Coggeshall v. State, 961 S.W.2d 639, 642–43 (Tex. App.—Fort Worth
1998, pet. ref’d).
A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States,
328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); Coggeshall, 961 S.W.2d
at 643. Conversely, an error does not affect a substantial right if we have “fair
assurance that the error did not influence the jury, or had but a slight effect.”
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
In making this determination, we review the record as a whole, including
any testimony or physical evidence admitted for the jury’s consideration, the
nature of the evidence supporting the verdict, and the character of the alleged
error and how it might be considered in connection with other evidence in the
case. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may
also consider the jury instructions, the State’s theory and any defensive
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theories, whether the State emphasized the error, closing arguments, and even
voir dire, if applicable. Id. at 355–56.
Here, the jury heard ample testimony to determine that Oxford was guilty
of aggravated robbery. Olivos identified Oxford as one of her robbers shortly
after the robbery. She testified that he stole her purse from her car. The jury
heard testimony that the police found Olivos’s cell phone in the backseat of the
same police car where Oxford had been detained and found receipts from
purchases made by Olivos in Oxford’s shoes. Oxford himself testified that he
intended to rob someone that night and that he knew a gun would be involved.
Oxford further admitted that he originally lied to Officer Little on the audio
recording about not being involved in the robbery but that he was now telling
the truth about stealing Olivos’s purse at gunpoint.3 Thus, after carefully
reviewing the record and performing the required harm analysis under rule
44.2(b), we conclude that, in the context of the entire case against Oxford, any
error in the trial court’s admission of the audio recording did not have a
substantial or injurious effect on the jury’s verdict and did not affect Oxford’s
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… Oxford argues that the introduction of the audio recording compelled
him to testify, allowing the State to introduce his prior convictions. But we
cannot see how the admission of the audio recording—in which Oxford never
admitted to the robbery—compelled him to testify that he did, in fact, rob
Olivos.
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substantial rights. See King, 953 S.W.2d at 271. Thus, even assuming error,
we disregard it. See Tex. R. App. P. 44.2(b).
VI. C ONCLUSION
Having overruled Oxford’s single point, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 19, 2009
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