David John Larue v. State ( 2004 )

  NUMBER 13-02-392-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

DAVID JOHN LARUE,                                                        Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

___________________________________________________________________

On appeal from the 221st District Court

of Montgomery County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

         Appellant, David John LaRue, was tried before a jury and convicted of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003). The trial court assessed punishment at forty-five years imprisonment in the Institutional Division of the Texas Department of Criminal Justice. Appellant challenges his conviction by four issues. The trial court has certified that this case “is not a plea-bargain case, and the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). We affirm.

I. FACTS

         As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.  

II. EXTRANEOUS OFFENSE EVIDENCE

         By his first issue, appellant contends that it was an abuse of discretion for the trial judge to admit extraneous offense evidence during the punishment phase of trial because the extraneous offense was not proven beyond a reasonable doubt. We review the trial court’s decision to admit extraneous offense evidence under an abuse of discretion standard. See Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1998); Hernandez v. State, 52 S.W.3d 268, 281 (Tex. App.–Corpus Christi 2001, no pet.).

         During the punishment phase, evidence may be offered by the State as to any matter the court deems relevant to sentencing, including evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) (Vernon Supp. 2004). The trial court is responsible for determining the threshold admissibility of extraneous offense evidence at the punishment phase; that is, the court must make an initial determination at the proffer of the evidence that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense. Moore v. State, 82 S.W.3d 399, 409 (Tex. App.–Austin 2002, pet. ref’d); see Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996); see also Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App. 1994).

         Before appellant’s first trial, an evidentiary hearing was held by the trial court to determine whether evidence of an extraneous offense would be admissible in the event there was a punishment phase. Both sides presented evidence, and the trial court ruled that because a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense, the evidence would be admitted. Appellant’s first trial for aggravated sexual assault of a child ended in a mistrial when the jury was unable to reach a unanimous verdict. Appellant was tried again for the same offense and convicted. In accordance with the trial court’s ruling at the evidentiary hearing from the first trial, the State was allowed to present extraneous offense evidence during the punishment phase. Because appellant elected to have the trial court determine punishment, the evidence was presented to the court.

         After reviewing the record of the evidentiary hearing, we find that the trial court did not abuse its discretion in determining that the jury could find beyond a reasonable doubt that appellant committed the extraneous offense. Therefore, appellant’s first issue is overruled.

III. MOTION FOR CONTINUANCE AND EXPERT FUNDS

         By his second issue, appellant argues that the trial court abused its discretion in denying appellant’s motion for continuance and request for funds to hire a DNA expert. We review the trial court’s ruling on both the motion for continuance and the request for funds for an abuse of discretion. Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998); Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995).

          Between the first and second trials, the State sent evidence, diapers recovered from appellant’s home, to the Texas Department of Public Safety Laboratory for DNA testing. The results of the tests were received by defense counsel three days before the second trial began. The lab results confirmed that the substance found in the diapers was blood, and was consistent with the victim’s DNA. Defense counsel filed a motion for continuance and motion for funds to hire a DNA expert based on the fact that the State had retested the evidence after the mistrial and defense counsel received the results only days before the second trial. The trial court denied the motions.

         A review of the trial record reveals that no evidence was introduced or admitted regarding the DNA testing performed between the first and second trials. The only evidence offered by the State concerning the blood found in the diapers was from testing done before the first trial began. Because the results of the subsequent tests were not presented to the jury and there was no testimony regarding the later DNA testing, appellant has not demonstrated that a DNA expert was needed to provide assistance which was likely to be a “significant factor” at trial. See Taylor v. State, 939 S.W.2d 148, 152 (Tex. Crim. App. 1996). Furthermore, appellant has not shown that he was prejudiced by the trial court’s denial of his motion for continuance. See Wright v. State, 28 S.W.3d 526, 532 (Tex. Crim. App. 2000). Therefore, we find the trial court did not abuse its discretion in denying appellant’s motions. Appellant’s second issue is overruled.

IV. APPELLANT’S WRITTEN AND ORAL STATEMENTS

         By his third issue, appellant argues that the trial court abused its discretion in admitting appellant’s written statement into evidence, and in admitting the testimony of Investigator Garza and Detective Pickering regarding appellant’s oral statements made to them. Specifically, appellant contends that his statements were given during a custodial interrogation and therefore the investigators were required to inform him of his Miranda rights and to comply with article 38.22 of the code of criminal procedure in order for his statements to be admissible at trial. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2004); Miranda v. Arizona, 384 U.S. 436 (1966). We disagree.

         A person is considered in custody if, under the circumstances, a reasonable person would believe that his or her freedom of movement was restrained to the degree associated with formal arrest. Stansbury v. California, 511 U.S. 318, 320-26 (1994). The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views of the officer or the person being questioned. Id. at 323. In this case, there was testimony that: (1) appellant arrived at the Montgomery County Sheriff’s Office voluntarily; (2) he was not under formal arrest; (3) appellant voluntarily gave a written statement and spoke to investigators afterwards; and (4) appellant chose to leave the interview and did so freely.

         In light of these circumstances, we conclude that appellant’s written and oral statements were not the product of a custodial interrogation. Therefore, the statements were admissible at trial. Appellant’s third issue is overruled.

V. FALSE AND/OR MISLEADING TESTIMONY

         Appellant lastly argues that the State’s knowing use of false or misleading testimony violated his right to due process of law under the United States Constitution and due course of law under the Texas Constitution. See U.S. Const. amend XIV; Tex. Const. art. I, §§ 13, 19. Appellant contends that a comparison of the witness testimony offered in the two trials gives the appearance that false or misleading evidence was used on four different occasions to secure appellant’s conviction in his second trial. However, appellant’s contention is not supported by the record. After reviewing the testimony relied on by appellant in support of his argument, we find that appellant has failed to establish that the testimony offered at the second trial was false or misleading. Appellant has also failed to establish that the State knowingly used false or misleading testimony, if any. Therefore, appellant’s fourth issue is overruled.

VI. CONCLUSION

         Accordingly, the judgment of the trial court is affirmed.

                                                                        NELDA V. RODRIGUEZ

                                                                        Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 4th day of November, 2004.