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 1998-11

Tremain Tunstall v. State ( 1998 )


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  • TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





    NO. 03-97-00319-CR

    Tremain Tunstall, Appellant


    v.


    The State of Texas, Appellee





    FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT

    NO. 19,233, HONORABLE CHARLES E. LANCE, JUDGE PRESIDING

    Appellant Tremain Tunstall appeals his conviction for capital murder (multiple homicides). See Tex. Pen. Code Ann. § 19.03(a)(7)(A) (West 1994). The State did not seek the death penalty, therefore punishment was life imprisonment. See Tex. Pen. Code Ann. § 12.31 (West 1994). Appellant brings two issues for review. In the first, he contends that the warnings he was given before he made his written and videotaped confessions were not adequate, and in the second, he claims his trial counsel rendered ineffective assistance by failing to raise the issue of these inadequate warnings. We will affirm the judgment.

    ADMISSIBILITY OF CONFESSIONS



    In his first issue, appellant contends that the warnings given to him before he gave his written and videotaped confessions did not comply with the requirements of article 38.22 of the Code of Criminal Procedure because they did not include the information that any statement he makes may be used against him. See Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a)(1), (2) (West 1979) & § 3(2) (West Supp. 1998). In order to complain on appeal about the admissibility of a confession, an objection must have been made to its admission on that same ground in the trial court. See Tex. R. App. P. 33.1(a)(1)(A); Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988); Fancher v. State, 659 S.W.2d 836, 839 (Tex. Crim. App. 1983). In the instant case, appellant's trial counsel objected on other grounds to the admission of his written confession, and a pre-trial hearing was held on appellant's motion to suppress it, but the claim now made on appeal--concerning the omitted item--was not raised at trial. We hold that the complaint was waived. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

    Under the same point, appellant attempts to raise the separate question of whether improper inducements were made which, when combined with the effect of the claimed improper warnings, caused appellant to confess to the killings. This is also an objection different from the one presented in appellant's motion to suppress which was heard and ruled upon by the trial court. The ground urged in appellant's motion was a claim that the deputy sheriff's statement to appellant was an improper inducement to confess. The statement appellant contended was improper was, "[H]ey, your [sic] looking at Capital Murder charges and if this is self defense, you better tell me." The trial court found there was no direct or implied promise of benefit or gain given to induce the statement. Appellant renewed this objection to admission of the written confession at trial and the trial court again overruled it. Appellant made no claim at the hearing nor at trial that a defect in the warning influenced his decision to confess. We note that evidence at the hearing showed that appellant had been taken before magistrates for warnings in two different counties, the one in which he was captured and the one in which he was prosecuted, before he was questioned.

    Now, on appeal, appellant makes a different argument than he made at trial, and he attempts to combine the new defective-warning issue with his original objection. Appellant's arguments on appeal must correspond to his objection at trial. Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994). We hold the claim of error was waived.

    Another reason why appellant's issue fails is that he did not object to the introduction of his videotaped statement. After appellant gave a written confession, he went with law enforcement officers to show them where to hunt for the weapon he used in the killings and to point out the scenes of the crimes. He described and demonstrated the events at different locations to provide more detail about what happened. His statements and reenactments were videotaped. Even if the written statement had been improperly admitted, the admission of substantially the same testimony without objection, through admission of the videotaped confession, made the error, if any, harmless. See Hicks v. State, 860 S.W.2d 419, 430-31 (Tex. Crim. App. 1993), cert. denied, 512 U.S. 1227 (1994) (improper admission of defendant's grand jury testimony harmless because substantively the same evidence properly admitted in form of taped interview with deputy sheriff). Appellant's first issue for review is overruled.



    INEFFECTIVE ASSISTANCE OF COUNSEL In his second issue, appellant contends that his trial attorney rendered ineffective assistance by failing to object to the admission of appellant's written statement and his video statement on the basis that the warning given to appellant was incomplete. To show ineffective assistance of counsel, appellant must show that: (1) trial counsel's performance was deficient in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); O'Hara v. State, 837 S.W.2d 139 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance is to be judged by the totality of representation provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Counsel is strongly presumed to have provided adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. See Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997) (reviewing court applies strong presumption that counsel's actions were within wide range of reasonable professional assistance).

    Appellant has the burden of proving ineffective assistance of counsel. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). In the present case, no motion for new trial was filed. Thus, appellant has not brought to this Court any evidentiary record showing the reasons for his attorney's actions, and we decline to speculate on trial counsel's strategy. Due to the absence of evidence concerning counsel's reasons--or lack thereof--for his actions, we are unable to conclude that his performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The record does show that appellant's counsel was not inactive. He filed numerous motions, including one for change of venue, and obtained a hearing and ruling on it; he pursued a motion to suppress the written confession and obtained a ruling; he made motions to obtain investigators and expert witnesses, filed motions for discovery, and apparently obtained full disclosure; he obtained depositions of out-of-state witnesses, presented six defense witnesses, conducted thorough cross-examination of the State's witnesses, and made numerous objections throughout the trial. This substantial activity in defense of appellant gives factual support to the strong presumption of reasonable representation.

    In any event, appellant's decision to testify against his counsel's advice almost certainly renders the question of the effectiveness of counsel moot. After the State rested, and outside the presence of the jury, appellant took the stand and acknowledged that his attorney had advised him not to testify but, despite that advice, appellant said "I'd like to tell my side." Appellant then testified and in the process of telling his side, acknowledged that the events detailed in his written and videotaped statements were true. He added new information, but did not contradict the facts previously given about how he shot both of his victims. When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made. Duncan v. State, 717 S.W.2d 345, 348 (Tex. Crim. App. 1986); Medina v. State, 962 S.W.2d 83, 87 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). See also Randall v. State, 464 S.W.2d 836 (Tex. Crim. App. 1971) (defendant who insisted on testifying against advice of counsel and testified to substantially the same facts as in confession would not be heard to complain about admission of disputed confession). We overrule appellant's second issue for review.





    CONCLUSION

    Having overruled appellant's issues for review, we affirm the judgment of conviction.





    John Powers, Justice

    Before Justices Powers, Kidd and B. A. Smith

    Affirmed

    Filed: November 5, 1998

    Do Not Publish

    per admission of defendant's grand jury testimony harmless because substantively the same evidence properly admitted in form of taped interview with deputy sheriff). Appellant's first issue for review is overruled.



    INEFFECTIVE ASSISTANCE OF COUNSEL In his second issue, appellant contends that his trial attorney rendered ineffective assistance by failing to object to the admission of appellant's written statement and his video statement on the basis that the warning given to appellant was incomplete. To show ineffective assistance of counsel, appellant must show that: (1) trial counsel's performance was deficient in that counsel made such serious errors that he was not functioning effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that appellant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); O'Hara v. State, 837 S.W.2d 139 (Tex. App.--Austin 1992, pet. ref'd). Counsel's performance is to be judged by the totality of representation provided. Strickland, 466 U.S. at 690; Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Counsel is strongly presumed to have provided adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690. See Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997) (reviewing court applies strong presumption that counsel's actions were within wide range of reasonable professional assistance).

    Appellant has the burden of proving ineffective assistance of counsel. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). In the present case, no motion for new trial was filed. Thus, appellant has not brought to this Court any evidentiary record showing the reasons for his attorney's actions, and we decline to speculate on trial counsel's strategy. Due to the absence of evidence concerning counsel's reasons--or lack thereof--for his actions, we are unable to conclude that his performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The record does show that appellant's counsel was not inactive. He filed numerous motions, including one for change of venue, and obtained a hearing and ruling on it; he pursued a motion to suppress the written confession and obtained a ruling; he made motions to obtain investigators and expert witnesses, filed motions for discovery, and apparently obtained full disclosure; he obtained depositions of out-of-state witnesses, presented six defense witnesses, conducted thorough cross-examination of the State's witnesses, and made numerous objections throughout the trial. This substantial activity in defense of appellant gives factual support to the strong presumption of reasonable representation.

    In any event, appellant's decision to testify against his counsel's advice almost certainly renders the question of the effectiveness of counsel moot. After the State rested, and outside the presence of the jury, appellant took the stand and acknowledged that his attorney had advised him not to testify but, despite that advice, appellant said "I'd like to tell my side." Appellant then testified and in the process of telling his side, acknowledged that the events detailed in his written and videotaped statements were true. He added new information, but did not contradict the facts previously given about how he shot both of his victims. When a defendant preempts his attorney's strategy by insisting that a different defense be followed, no claim of ineffectiveness can be made. Duncan v. State, 717 S.W.2d 345, 348 (Tex. Crim. App. 1986); Medina v. State, 962 S.W.2d 83, 87 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd). See also Randall v. State, 464 S.W.2d 836 (Tex. Crim. App. 1971) (defendant who insisted on testifying against advice of counsel and testified to substa