Joe Defreeze v. State ( 1997 )

cr5-337.dd.defreeze TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00337-CR



Joe Defreeze, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0944522, HONORABLE JON N. WISSER, JUDGE PRESIDING

A jury convicted Joe Defreeze of aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 1994). The court assessed his punishment, enhanced by a prior felony, at twenty-eight years in prison. By eight points of error, Defreeze complains that his confession should have been suppressed and that his counsel was ineffective. We will affirm the judgment.

Defreeze was convicted of robbing a pizza deliveryman at knife point. The evidence included Defreeze's confession, which he recanted on the stand. In his confession, Defreeze stated that he and Percy Green performed the robbery under the direction of a third man, who turned out to be Todd Carruth. Defreeze stated that they were high on "dope" and bought more dope after the robbery; Carruth testified that crack cocaine was the drug used.

By his first three points of error, Defreeze contends the trial court erred by denying his motion to suppress his extra-judicial confession. He argues that the confession was obtained in violation of the fifth and fourteenth amendments to the federal constitution (point one), Texas Code of Criminal Procedure article 38.22 (point two), and state constitution article I, sections 10 and 19 (point three). We must first decide whether the record supports the trial court's findings of fact, then whether the court properly applied the law to those findings. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). The entire record is subject to review. Peacock v. State, 819 S.W.2d 233, 235 (Tex. App.--Austin 1991, no pet.). The trial judge is the sole trier of fact and judge of the credibility of witnesses. Romero, 800 S.W.2d at 543. We will reverse only for an abuse of discretion. Sosa v. State, 769 S.W.2d 909, 915 (Tex. Crim. App. 1989); Peacock, 819 S.W.2d at 235.

The trial court made findings of fact regarding Defreeze's confession, including the following: Sgt. Bruce Lutringer orally advised Defreeze of his constitutional rights regarding the interrogation. Lutringer also let Defreeze read the card listing his rights and initial the relevant paragraphs to acknowledge his understanding. Defreeze initialed paragraphs on his statement to acknowledge that Lutringer informed him of his right to remain silent and that any statement could be used against him in court, that he had the right to have counsel appointed and present before and during questioning, and that he could stop the interview at any time. Defreeze waived these rights in the statement. No promise of a benefit was made to the defendant in exchange for the statement. Defreeze's testimony that Lutringer told him numerous cases would be filed against him if he refused to confess was not credible. Defreeze's confession was oral and reduced to writing. He did not make any corrections after reviewing the statement.

In his federal constitutional claim, Defreeze attacks as clearly erroneous the findings that the police did not promise him a benefit from confessing and that he knowingly, intelligently, and voluntarily waived his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). He contends promises were made to him that rendered his waiver of rights involuntary. Confessions are inadmissible unless they are freely and voluntarily given. Zuliani v. State, 903 S.W.2d 812, 820 (Tex. App.--Austin 1995, pet. ref'd). We look at the totality of the circumstances to determine voluntariness. Id. at 821. The testimony conflicted.

Defreeze testified that, when he was being questioned, he initially denied knowledge of the robberies. He began to reconsider his denial when one of the officers threatened that, if Defreeze continued to deny knowledge, the police would show his picture to victims of other crimes and imprison him for a long time. He said that Lutringer told him that, if he confessed to two crimes, the police would charge him with only those two and let the district attorney know that he had cooperated. Defreeze admitted that the police never guaranteed that he would receive a particular sentence or that the district attorney would file only two charges against him. He later testified that he gave his statement out of fear because the police told him his friends had already implicated him in several robberies. Defreeze requests consideration of the additional circumstances that he has only a fair understanding of English, that he was a crack user, and that he confessed prior to being taken before a magistrate.

Lutringer testified that he read Defreeze his Miranda rights at the outset of the questioning. He said he told Defreeze that the victim had picked Defreeze out of a photo lineup and that this was Defreeze's chance to get his side of the story down. Lutringer flatly denied promising that Defreeze's confession would limit the prosecution to two cases. Lutringer admitted that he told Defreeze that the district attorney would be told of any cooperation and would decide whether to prosecute him for other crimes. Lutringer acknowledged that, at some point, the officers probably told Defreeze that, if he did not talk about his involvement in the robberies, they would contact the victims of all the robberies and show his picture in a photo lineup. Lutringer testified, however, that they did not discuss other robberies until after Defreeze signed the confession. Lutringer also testified that Defreeze did not appear to be under the influence of any mind- or mood-altering substances when he confessed.

We see no error in the challenged findings. Defreeze admitted he was not promised a particular sentence or limitation of charges filed against him. Telling Defreeze that the questioning offered him the chance to get his story told promised no benefit. First, there was no promise; second, the police did not know whether Defreeze's story was beneficial--clearly, the confession was at least in part harmful to him because he admitted committing the instant offenses. The police also told him that the decision whether to prosecute the other offenses was beyond their control. We find no support for Defreeze's intimation that the voluntariness of his confession was in any way tainted by a limited comprehension of English, addiction to crack, or lack of admonishment by a magistrate during his overnight stay in jail before his confession. Because evidence supports the court's findings, we do not find a clear abuse of discretion. We overrule point one.

Defreeze complains in point of error two that the police did not comply with article 38.22. As we just concluded, the court acted within its discretion in determining that the police did not wrongfully induce his confession by making promises or render the confession involuntary. See Dinkins v. State, 894 S.W.2d 330, 349 (Tex. Crim. App. 1995). Defreeze further complains that his written statement lacks a recital that, before and during the making of the statement, he knowingly, intelligently, and voluntarily waived certain rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (West 1979). The warnings must be given in "strict compliance" with the statute. Dunn v. State, 721 S.W.2d 325, 341 (Tex. Crim. App. 1986). Strict compliance does not require transcription of the statute; the language can be slightly different if it conveys the exact meaning of the statute. See Sosa v. State, 769 S.W.2d at 915-16. The warning card Defreeze initialed stated that his statement could be used as evidence against him at trial; the omission of the words "as evidence" from the recitation in his confession does not change the meaning of the warning enough to alter the message. Further, the statute does not require that the statement contain a clause stating that the accused waived his rights prior to and during the making of the statement, only that the statement show that the waiver was made properly prior to and during the making of the statement. At the beginning of the statement, Defreeze averred that he was warned of the relevant rights "before making the following statement" and that he understood and waived his rights "without any threats or promises of any kind having been made to me." At the conclusion of the statement he reasserted that he gave the statement freely and voluntarily with no threats or promises made. We conclude that these averments and their placement show on the face of the statement a knowing, intelligent, and voluntary waiver of rights before and during the making of the statement. We overrule point two.

Defreeze contends by point of error three that the officer's promises rendered the confession involuntary under the state constitution. The test for whether a promise of benefit renders a confession involuntary has four parts. "The promise must be: 1) of some benefit to the defendant, 2) positive, 3) made or sanctioned by a person in authority, and 4) of such character as would be likely to influence the defendant to speak untruthfully." Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991). We reach the same result under this analysis as in points one and two and overrule point three.

The five remaining points of error relate to the appointment, failure to withdraw, and performance of counsel. By points of error four through seven, Defreeze contends his trial counsel was ineffective. By his last point of error, he contends the court erred by not giving his second attorney time to prepare before trial.

In analyzing a claim of ineffective assistance of counsel, we must first examine whether counsel's conduct failed to meet an objective standard for reasonable performance and whether that failure deprived defendant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, (1984); Ex parte Walker, 777 S.W.2d 427, 430 (Tex. Crim. App. 1989). We look at the totality of the representation. Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985); Vasquez v. State, 819 S.W.2d 932, 938 (Tex. App.--Corpus Christi 1991, pet. ref'd). Counsel is allowed wide latitude within reasonable professional standards to make tactical decisions. Strickland, 466 U.S. at 689. The representation need not be error-free. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Vasquez, 819 S.W.2d at 938. Finally, the appellant must show a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id.

Defreeze contends he received ineffective assistance of counsel because Walter Prentice, his original appointed counsel, failed to move to withdraw long enough before the trial to permit a substitute attorney sufficient preparation time. Prentice was appointed to represent Defreeze on September 26, 1994. On February 10, 1995, Defreeze refused to testify against his friend Green, even after being granted immunity and being held in contempt for his refusal. Two weeks later, after a heated discussion of trial strategy with Prentice on Friday, February 24, Defreeze told Prentice he was fired. On the following Monday, when trial was set to begin, Prentice filed a motion to withdraw as counsel. He stated that, if Defreeze chose to testify, Prentice would likely face an ethical dilemma that would render him unable to conduct the examination. Defreeze stated at the pretrial hearing that he wanted Prentice to withdraw because Prentice had not talked with him about the case without becoming heated or cursing. The trial court declined to allow withdrawal so near to trial, noting that Prentice was a criminal law expert and familiar with the case. The court instead appointed an additional criminal lawyer, Mark Westenhover, who did not arrive until after voir dire began.

After Green testified at Defreeze's trial and denied committing the robbery, Defreeze wanted to testify. Prentice stated on the record outside the presence of the jury that he had advised Defreeze of his right to choose whether to testify and that he advised Defreeze not to testify, in large part because his testimony would allow the State to inquire into his criminal record and other charges pending against him. After an off-the-record discussion, Prentice announced that Defreeze would testify and be questioned by Westenhover.

Defreeze asserts that Prentice should have known on February 10 when Defreeze refused to testify against Green, that Defreeze would want to testify at his own trial. He contends that this knowledge should have spurred Prentice's motion to withdraw. We do not find a basis for this contention in the record. Even if Prentice disagreed with Defreeze's decision to reject the plea bargain and refuse to testify, the record does not show that Prentice would be unable to represent him. It does not show that Prentice should have known that Defreeze intended to testify at his own trial. Indeed, Defreeze's refusal to testify in Green's trial, though inconsistent with the plea bargain offer, seems consistent with Prentice's recommendation that Defreeze not testify in his own trial. The stated and apparent triggering event for the motion to withdraw was Defreeze's discharge of Prentice; Prentice filed the motion to withdraw on the next business day. The record does not show that Prentice withdrew too late.

Defreeze next argues that his counsel's unfamiliarity with the facts and governing law caused him not to elicit testimony from Defreeze regarding his assertion that the police made illegal promises of favorable treatment to obtain his confession. Though he blames Prentice for Westenhover's ignorance due to his late entrance into the case, this claim can lie against Westenhover alone because Prentice did not participate in Defreeze's examination. Defreeze also contends that counsel was ineffective for failing to request a proper jury instruction on the use of the confession.

The record does not show why Westenhover did not inquire about the alleged illegal promises. Defreeze suggests that Westenhover was daunted by the State's hearsay objections and lacked the expertise to circumvent those objections. Westenhover instead may have chosen to avoid eliciting testimony that would show Defreeze to be someone who lied, not just when scared, but when promised benefits. Such a choice would be a reasonable trial strategy to minimize the damage to Defreeze's credibility from admitting that he lied in a sworn statement to police. The record does not support Defreeze's claim. ⁽¹⁾  

The complaint regarding the lack of an instruction fails as well. The court instructed the jury as follows:

You are instructed that under our law a statement of a defendant made while under arrest or in custody, may not be used in evidence against the defendant unless it appears that the statement was freely and voluntarily made without compulsion or persuasion.

Now, therefore, if you find from the evidence, or if you have a reasonable doubt thereof, that at the time of the making of the statement, if any, to the police investigators, the defendant was coerced or forced to make the statement by threats from the police which were sufficient to render his statement, if any, not voluntary, you will completely disregard such statement as evidence for any purpose nor will you consider any evidence obtained as a result thereof.

Defreeze does not suggest what alternate instruction counsel should have requested. He has not shown the deficiency in counsel's performance on this issue.

Defreeze also complains that counsel was ineffective for failing to object to or otherwise seek exclusion of evidence of extraneous bad acts. Defreeze said in his confession that he and Green took the money from the pizza delivery man and "went and bought some dope." Carruth was more explicit. He testified that he planned the robbery as part of a string of robberies committed in order to obtain money to smoke crack. Defreeze contends that counsel should have objected to evidence regarding drug use because of the negative impact on the jury. He argues further that Carruth's corroboration of his statements about drug use lent credibility to other aspects of his confession. He argues that the drug evidence was inadmissible because it was not necessary to the jury's evaluation of the robbery offense. See Rogers v. State, 853 S.W.2d 29, 34 (Tex. Crim. App. 1993) (possession of marijuana not admissible to prove possession of methamphetamine or burglary).

The bad acts in this case were admissible to show motive. See Tex. R. Crim. Evid. 404(b). The testimony in this case shows a direct motivational link between the robbery and the drug use; this case is therefore distinct from Rogers and the cases cited therein. See Knox v. State, 934 S.W.2d 678, 682-83 (Tex. Crim. App. 1996). The failure to seek exclusion might also have been a strategic attempt to elicit sympathy by showing that the drugs rendered Defreeze not responsible for his actions. The State did not emphasize the drug consumption in its use of the statement. Defreeze's counsel was not ineffective for failing to object to evidence that likely was admissible.

Defreeze's representation was otherwise not ineffective. Prentice filed several pretrial discovery motions and the motion to suppress the confession. Prentice participated at the hearing on the motion to suppress and at voir dire, making challenges for cause and peremptory strikes, without objection by Defreeze. Prentice called and cross-examined witnesses at trial. Even as he was stepping aside from examining Defreeze, he participated by asserting that a prior conviction was on appeal and not admissible. He attempted to discredit Carruth by showing that his testimony was in exchange for an agreement by the district attorney's office not to challenge his parole application. In closing argument, Prentice carefully challenged the pizza delivery man's testimony as honest but shaky. He also challenged the confession's free and voluntary nature and encouraged the jury to disregard it. He emphasized Carruth's agreement with the State. He finally urged the jury that, if they convicted Defreeze, they convict him only of robbery rather than aggravated robbery. We conclude that Defreeze has not shown that his counsel's representation fell below an objectively reasonable standard. We overrule points four, five, six, and seven.

Defreeze urges by his eighth point of error that the trial court committed fundamental error by not giving Westenhover ten days after his appointment to prepare for the trial. See Tex. Code Crim. Proc. Ann. art. 1.051(e) (West Supp. 1997). A trial court need not allow an additional appointed counsel ten days to prepare if the chief and continuing appointed counsel has had ten days to prepare. Marin v. State, 891 S.W.2d 267, 271 (Tex. Crim. App. 1994). Defreeze argues that, because Prentice said he could not examine Defreeze when he testified, we should regard Westenhover as sole counsel for the purposes of questioning him. He argues that the lack of preparation time would then be fatal to the conviction. See id. at 272.

When making the appointment, the trial court knew that Westenhover likely would only examine Defreeze if he chose to testify. The trial met that expectation. No one sought a continuance. Westenhover examined Defreeze with a day's preparation. As noted, Prentice did not completely disengage from the trial when Defreeze took the stand. We conclude that, under the circumstances, the trial court did not commit fundamental error by not, on its own motion, giving Westenhover ten days to prepare. We overrule point of error eight.

Having overruled all points of error, we affirm the judgment of conviction.

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: February 27, 1997

Do Not Publish

1. Defreeze also complains that Westenhover showed his ignorance of the case by stating that he did not know of any other statements. Defreeze urges that Westenhover meant that he did not know of the police promises. In context, the statement appears to refer to other statements by Defreeze to police. At any rate, the ambiguity prevents Defreeze from meeting the Strickland standard.

he drug evidence was inadmissible because it was not necessary to the jury's evaluation of the robbery offense. See Rogers v. State, 853 S.W.2d 29, 34 (Tex. Crim. App. 1993) (possession of marijuana not admissible to prove possession of methamphetamine or burglary).

The bad acts in this case were admissible to show motive. See Tex. R. Crim. Evid. 404(b). The testimony in this case shows a direct motivational link between the robbery and the drug use; this case is therefore distinct fr