John Washington Pauley v. State ( 2014 )

AFFIRMED; Opinion Filed March 6, 2014.
S
Court of Appeals
In The
Fifth District of Texas at Dallas
No. 05-12-01202-CR
JOHN WASHINGTON PAULEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F10-40833-K
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Evans
Opinion by Justice Evans
John Washington Pauley appeals his conviction for the offense of aggravated robbery
with a deadly weapon. In his first issue, appellant argues the evidence is legally insufficient to
support his conviction. In his second and third issues, appellant complains the trial court
erroneously admitted certain evidence obtained in violation of his Miranda 1 rights and his federal
due process rights. For the reasons that follow, we affirm the trial court’s judgment.
BACKGROUND
Appellant and complainant, Angel Pinales, were co-workers at Fritz Industries. On
February 6, 2010, shortly after 1 a.m., Pinales was working his shift in Building D at Fritz when
a man, later identified as Quency Smith, hit him on the head with a gun while trying to steal
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
money from him. It is undisputed that appellant was not the attacker. However, shortly before
appellant clocked-out from his shift at Fritz at 10:30 p.m. on February 5, appellant saw Pinales,
who was about to start his shift, in the break room with a large amount of cash. Less than three
hours later at 1:11 a.m. on February 6, 2010, appellant’s access card was used to enter the gate to
Building D. A surveillance video taken around the same time shows a person going in the door
of Building D and then returning and entering the passenger side of a vehicle that was just inside
the gate. The vehicle immediately leaves.
Ten days after the incident, police detective Arthur Keele and his partner went to Fritz
where they viewed the surveillance video and learned that appellant’s access card was used to
open the gate shortly before the attack. Keele asked to speak to appellant, who was working at
the time. When appellant arrived at the office, Keele told appellant they were investigating the
robbery and that “he had some explaining to do” because his access card was used to open the
gate at the time of the incident. Keele testified that after appellant was advised of and waived his
Miranda rights, he recounted to Keele the following events on the night of the attack.
Appellant told Keele that he had seen Pinales with a lot of money in the break room just
before the shift change. After he got off work, appellant met up with “Scatter” and told him “he
knew where a guy had some money.” Appellant then got in Scatter’s vehicle and they drove to
Fritz where appellant used his access card to open the gate and drive into the lot. Scatter then got
out of the car, ran inside, came running back, and they left. Appellant told Keele he did not
know Scatter was going to take a gun to the robbery. Appellant also gave Keele a phone number
for Scatter and the general location where he had met Scatter on the night of the incident.
Based on appellant’s statements, Keele arrested appellant for aggravated robbery and
transported him to the Mesquite Police Department. There, two other officers took appellant on
a “down-and-out” so appellant could direct them to the location where he had met Scatter the
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evening of the robbery. Appellant identified a block range on Michigan Avenue in Dallas but
did not identify a specific residence. Keele’s investigation of the telephone number appellant
provided for Scatter revealed that it belonged to Quency Smith, who lived one block over from
the area appellant identified on the down-and-out. Pinales identified Smith as his attacker from a
photographic lineup eleven days after the incident.
Upon returning to the police station, appellant was placed in an interview room where
Keele reminded him of the Miranda rights he received at Fritz earlier that day and placed the
Miranda card appellant had previously signed at Fritz on the interview table. During the
videotaped interview, appellant was uncooperative and repeatedly asked to phone his sister.
According to Keele, at one point, appellant picked up the Miranda card from the table and ate a
portion of it. The video recording depicts appellant grabbing a small document off the table in
the interview room and eating a portion of it. The Miranda card that was introduced into
evidence is missing the part containing a date and signature.
ANALYSIS
A. Legal Sufficiency
In his first point of error, appellant argues that the evidence is legally insufficient to
support his conviction. In reviewing a legal sufficiency challenge, we must determine whether
any reasonable fact finder could have found the essential elements of the offense beyond a
reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (citing Jackson v.
Virginia, 443 U.S. 307, 318 (1979)). We review all the evidence in the light most favorable to
the verdict, giving deference to the fact finder’s responsibility to weigh the evidence, resolve
conflicting testimony, and draw reasonable inferences from basic facts to ultimate facts. See id.
We also determine “whether the necessary inferences are reasonable based upon the combined
and cumulative force of all of the evidence when viewed in the light most favorable to the
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verdict.” Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and
circumstantial evidence are treated equally. Id.
A person commits aggravated robbery if he, in the course of committing theft and with
the intent to obtain or maintain control of property, intentionally, knowingly, or recklessly causes
bodily injury to another and uses or exhibits a deadly weapon during the commission of the
robbery. TEX. PENAL CODE ANN. §§ 29.02(a)(1), 29.03(a)(2) (West 2011). The indictment in
this case tracked the language of the statute alleging appellant:
. . . intentionally and knowingly, while in the course of committing theft of
property and with intent to obtain or maintain in control of said property, caused
bodily injury to another, ANGEL PINALES, by STRIKING COMPLAINANT
WITH A FIREARM, and the defendant used and exhibited a deadly weapon, to
wit: A FIREARM.
In addition, the jury was instructed as to the law of parties which imposes criminal responsibility
on a person for offenses committed by a person’s own conduct, by the conduct of another for
which he is criminally responsible, or by both. TEX. PENAL CODE ANN. § 7.01(a) (West 2011).
A person is criminally responsible for an offense committed by the conduct of another if, acting
with intent to promote or assist the commission of an offense, he solicits, encourages, directs,
aids or attempts to aid the other person to commit the offense. TEX. PENAL CODE ANN.
§ 7.02(a)(2) (West 2011).
It is undisputed that Smith committed aggravated robbery against Pinales with a deadly
weapon. The jury was thus authorized to convict appellant of aggravated robbery with a deadly
weapon if it found beyond a reasonable doubt that appellant acted with intent to promote or assist
Smith in the commission of the offense by encouraging, aiding, or attempting to aid him in the
aggravated assault of Pinales with a deadly weapon. Evidence that a defendant was physically
present at the commission of the offense and encouraged the commission of the offense either by
words or agreement is legally sufficient to support his conviction as a party to the offense.
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Cordova v. State, 698 S.W.2d 107, 111(Tex. Crim. App. 1985). While there must be sufficient
evidence that appellant was criminally responsible for the aggravating element, evidence that
appellant had direct knowledge of the aggravating element is not necessary. See Hurd v. State,
322 S.W.3d 787, 790 (Tex. App.—Fort Worth 2010, no pet.). The fact finder may examine
events occurring before, during, and after the offense and may rely on the defendant’s actions
that show an understanding and common design to commit the offense. See King v. State, 29
S.W.3d 556, 564 (Tex. Crim. App. 2000).
Appellant argues that he cannot be liable as party for the offense because he did not know
Smith was going to use a gun in the robbery. We disagree. The evidence shows that appellant
met up with Smith after his shift ended, told him about the cash Pinales displayed in the break
room, returned to Fritz with Smith, allowed his access card to be used to gain entry to the
premises shortly before the attack occurred, and, after Smith came out of the building, the two
fled. The video surveillance tape shows a person getting into the passenger side of a vehicle
while it is driving away, suggesting that appellant was driving. Based on the evidence before it,
the jury could have determined that appellant formulated and organized the plan to commit the
offense against Pinales. Evidence that appellant was intimately involved with the planning and
details of the offense against Pinales was sufficient for the jury to find beyond a reasonable doubt
that appellant aided or encouraged the commission of the offense. See King, 29 S.W.3d at 564.
That appellant claims he did not know Smith was bringing a gun to the robbery does not
render the evidence insufficient. Lack of evidence concerning appellant’s direct knowledge of
the gun is not dispositive and fact finders may make reasonable inferences from evidence
presented at trial. See Hooper v. State, 214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007)
(circumstantial evidence as probative as direct evidence in establishing guilt). Moreover, the
jury, as fact finder, was free to disbelieve appellant’s self-serving statement. The evidence was
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legally sufficient to support a finding that appellant was criminally responsible as a party for
aggravated robbery with a deadly weapon. We resolve appellant’s first issue against him.
B. Admission of appellant’s oral statements
In his second issue, appellant contends the trial court erred in admitting evidence of the
statements appellant made during the interview at Fritz. Specifically, appellant challenges the
voluntariness of his confession at Fritz by arguing it was the product of custodial interrogation
and he was not properly warned of his Miranda rights. In his third issue, appellant raises the
same complaints regarding evidence of any statements he made on the down-and-out.
At the pre-trial hearing on appellant’s motion to suppress, Keele, Officer Chad Copeland,
and appellant testified. Keele testified that he went to Fritz to investigate the incident. After
reviewing the videotape, access card transaction reports, and obtaining a statement from Pinales,
he requested that appellant, who was working, be brought to the safety director’s office so the
officers could speak with him. When appellant entered the office, Keele was sitting in a chair
behind the desk and appellant and Keele’s partner sat in one of the two chairs on the other side of
the desk. Keele explained to appellant that they “were investigating a robbery that occurred at
Fritz Industries, and that he had a little bit of explaining to do because his name has come up in
the investigation.” According to Keele, he then read appellant his rights off a Miranda card.
Keele dated and timed the card, which appellant then signed. Keele asked appellant if he
understood his rights fully. Keele testified appellant was not physically detained in any way and
if appellant got up to walk out, the officers would not have stopped him. Keele admitted,
however, that he never told appellant he was free to leave and walk out at any time. Keele
further stated he did not have probable cause to arrest appellant until after appellant admitted his
participation in the attack.
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When Keele asked appellant to explain why his access card was used to open the gate at
the time the robbery occurred, appellant detailed his role in the robbery. Appellant also gave
Keele Smith’s phone number and told Keele that he did not know Smith was going to bring a
gun to the robbery. After listening to appellant’s statements, Keele arrested appellant and
transported him to the Mesquite Police Department where he asked two other officers to take
appellant on a down-and-out to identify the location where appellant had met up with Smith the
night of the robbery.
Copeland testified that pursuant to Keele’s request, he and another detective performed a
down-and-out with appellant to locate where Smith was staying or living. Copeland did not
Mirandize appellant or ask appellant any questions about the offense during the down-and-out.
Copeland stated appellant directed them to an area on Michigan Avenue in Dallas where he met
up with the accomplice.
Appellant testified he was working on a forklift when his name was called on the
loudspeaker to report to the main office. Keele was sitting behind the desk and asked him to step
into the office. Keele’s partner was standing at the door. Keele asked appellant if he was at Fritz
on February 5 and if he got paid. After appellant said yes, Keele told him to have a seat and
asked appellant if he knew about the incident with Pinales. When appellant asked Keele “what
incident,” Keele replied, “Now you know he got assaulted.” Appellant asked what that had to do
with him and Keele then identified himself and his partner as police officers who were
investigating the attack. According to appellant, when Keele asked him if he knew anything
about the situation with Pinales, appellant said “No.” Keele then told appellant they had records
showing he came through the gate at the time of the incident and they knew appellant was on
federal probation. Keele also told appellant that they had already talked to his probation officer.
When appellant asked the officers if he was under arrest, Keele stated he was not. Appellant
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then said he told the officers he did not want to speak to them, to which Keele responded, “So
you think you can walk out of here?” According to appellant, Keele told him they thought it was
a robbery and were going to take him to police headquarters for his part in the robbery.
Appellant testified he denied any involvement in the robbery and after a hostile exchange,
appellant was handcuffed and taken to the police station. Appellant denied he was advised of his
Miranda rights or that he signed a Miranda card. He also denied eating a portion of the Miranda
card on which his signature appeared. When shown the video of his police station interview
depicting him eating part of a piece of paper, appellant claimed what he ate was gum. 2
Immediately after the hearing, the trial judge made the following findings: (1) appellant
was not in custody at the time he made the statements in the Fritz office, (2) appellant made
those statements freely and voluntarily, and (3) the statements were not the product of any
coercion. The findings of fact were dictated into the reporter’s record. Before voir dire on the
day of trial, the trial court made additional findings that appellant was given the Miranda
warnings, that he waived his rights voluntarily, knowingly, and intentionally; and gave a free and
voluntary statement that was not the product of coercion or trickery. The additional findings
were also dictated into the reporter’s record. The trial court then ruled that all of appellant’s
statements, including those from the down and out, were admissible.
Before addressing the merits of appellant’s second and third issues, we first consider his
contention that the recent case of Vasquez v. State, 411 S.W.3d 918 (Tex. Crim. App. 2013),
mandates that we abate this appeal and remand the case to the trial court to make and file written
findings of fact and conclusions of law with respect to the voluntariness of appellant’s
2
Appellant testified that during the down and out, the officers didn’t speak to him and he didn’t speak to them.
He also denied giving them directions to the location they took him.
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statements. 3 Here, the trial court dictated its findings and conclusions into the record which
appear in the reporter’s record which was filed with the district clerk. The court of criminal
appeals has previously held that a trial court satisfies section 6 of article 38.22 when it dictates its
findings and conclusions into the record and they are transcribed and made part of the reporter’s
record, filed with the district clerk, and made part of the appellate record. See Murphy v. State,
112 S.W.3d 592, 601–02 (Tex. Crim. App. 2003). We find no conflict between Vasquez and
Murphy. Accordingly, abatement for trial court findings is not required.
Turning to the merits, the Fifth Amendment right against self-incrimination is satisfied
only when a defendant in custody gives his statements voluntarily. Miranda v. Arizona, 384 U.S.
436, 444 (1966). In order to ensure a statement is given voluntarily, police officers must supply
the defendant in custody with their legal rights and warnings. Id. at 467. We review the trial
judge’s determinations as to custody and voluntariness under an abuse of discretion standard
giving almost total deference to the trial judge’s determination of historical facts and any mixed
questions of law and fact that depend on witness credibility, while reviewing de novo pure
questions of law and mixed questions that do not depend on credibility determinations. State v.
Saenz, 411 S.W.3d 488, 495–96 (Tex. Crim. App. 2013) (custody); Neal v. State, 256 S.W.3d
264, 281(Tex. Crim. App. 2008) (voluntariness).
A person is in custody only if, under all the objective circumstances, a reasonable person
would believe his freedom of movement was restrained to the degree associated with an arrest.
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996). In contrast, a person held for
investigative detention is not in custody. Id. at 255. The determination of whether a person is in
custody is made on an ad hoc basis and depends on the objective circumstances rather than the
3
Appellant first brought Vasquez to our attention in a letter presenting additional authority filed the day before
oral argument. Both the State and appellant then filed post-submission briefs on this issue.
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unexpressed subjective views of the questioning officer or person being questioned. Id. at 254–
55. We determine the ultimate legal question of whether a person was in custody by considering
the facts, as assessed for weight and credibility by the trial court, and making a legal
determination as to whether those facts amounted to custody under the law. Saenz, 411 S.W.3d
at 494.
There are at least four general situations when an investigative detention may evolve into
custody: (1) the suspect is physically deprived of his freedom of action in any significant way;
(2) a law enforcement officer tells the suspect he cannot leave; (3) law enforcement officers
create a situation that would lead a reasonable person to believe his freedom of movement has
been significantly restricted; or (4) law enforcement officers have probable cause to arrest a
suspect, manifest that knowledge to the suspect, and do not tell the suspect that he is free to
leave. See State v. Ortiz, 382 S.W.3d 367, 376 (Tex. Crim. App. 2012). The defendant bears the
burden of proving that a statement was the product of custodial interrogation. Herrara v. State,
241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
On appeal, appellant contends that an examination and objective consideration of all the
circumstances shows that appellant was in custody because the police officers created a situation
that would lead a reasonable person to believe that (1) his freedom of movement was
significantly restricted, (2) there was probable cause to arrest, and (3) the officers did not inform
appellant that he was free to leave. Appellant also asserts his testimony that he was not given his
Miranda warnings coupled with the absence of any demonstrative evidence that the warnings
were given, compel the conclusion that his alleged statements at Fritz and during the down-and-
out were the product of illegal custodial interrogation.
In addition to the conflicting testimony regarding appellant’s ability to leave the Fritz
office before making his statements, there was also conflicting evidence on whether appellant
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was given his Miranda warnings before he gave the statements. Giving due deference to its
resolution of questions of historical fact that turn on credibility and demeanor, the trial court was
free to disbelieve appellant’s testimony that Keele would not let him leave the office and he was
never given his Miranda rights in favor of Keele’s contrary testimony that he read appellant the
Miranda warnings from a card, appellant signed the card, appellant indicated he understood and
waived his rights, and voluntarily detailed his involvement in the offense, and then later ate the
part of the Miranda card containing his signature which was captured on video. 4
Appellant also argues his federal due process rights were violated and his statements
were involuntary because they were the result of “coercive tactics.” We have not found, and
appellant does not direct us to, where he raised this issue in the trial court. Appellant also makes
no attempt in his appellate brief to specify the alleged coercive conduct of which he complains or
analyze how this conduct violated his dues process rights with respect to the statements at issue.
Accordingly, appellant has not preserved this issue for review. See TEX. R. APP. P. 33.1(a);
38.1(i). In any event, our review of the record supports the trial court’s finding that neither
appellant’s statements at Fritz nor those during the down and out were the product of coercion.
Accordingly, the trial court did not abuse its discretion in admitting evidence of appellant’s
statements at Fritz or during the down-and-out. We resolve appellant’s second and third issues
against him.
4
It is undisputed that appellant was in custody at the time of the down-and-out. Copeland testified that he did
not Mirandize appellant before the down-and-out. However, the record reflects that appellant was arrested after
waiving his Miranda rights and giving his statement at the Fritz office and immediately taken to the police station
for the down and out. Thus, the down and out was merely a continuation of the Fritz interview and new Miranda
warnings were not necessary. See Franks v. State, 712 S.W.2d 858, 860–61 (Tex. App.—Houston [1st Dist.], pet.
ref’d). Moreover, appellant does not argue the officers were required to re-Mirandize him before the down-and-out.
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Having concluded all of appellant’s issues lack merit, we affirm the trial court’s
judgment.
Do Not Publish /David Evans/
TEX R. APP. P. 47 DAVID EVANS
121202F.U05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOHN WASHINGTON PAULEY, On Appeal from the Criminal District Court
Appellant No. 4, Dallas County, Texas
Trial Court Cause No. F10-40833-K.
No. 05-12-01202-CR V. Opinion delivered by Justice Evans,
Justices Moseley and Bridges participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 6th day of March, 2014.
/David Evans
DAVID EVANS
JUSTICE
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