Albert Dewayne Beasley v. State ( 2012 )

Opinion issued December 28, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00987-CR
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ALBERT DEWAYNE BEASLEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Case No. 10-CR-2663
MEMORANDUM OPINION
A jury convicted appellant, Albert Dewayne Beasley, of the first-degree
felony offense of aggravated robbery and, after finding the allegations in an
enhancement paragraph true, assessed punishment at fifty years’ confinement.1 In
one issue, appellant contends that the State failed to preserve evidence of his
videotaped confession, in violation of Code of Criminal Procedure article 38.22,
which requires a videotaped recording of a defendant’s statement to be preserved
until the conviction is final and all appeals are exhausted.
We affirm.
Background
The complainant, Gary Billiot, owned and operated an automotive shop in
Texas City. Appellant occasionally worked at the shop by washing cars and
assisting with Billiot’s upholstery work. On August 25, 2010, appellant and a man
named Romeo were working with Billiot at the shop. At the end of the day, Billiot
locked up the shop, but he intended to stay for a while longer to work on
upholstering some car seats. Appellant asked Billiot if there was a way for him to
make any extra money, and Billiot responded that appellant could help upholster
the seats. Appellant and Romeo then briefly left to get some beers.
When appellant and Romeo returned, Billiot was working on the seats.
Romeo eventually left the shop, and appellant remained with Billiot. They were
the only two people in the shop that evening. Billiot told appellant that he was
going to trace a pattern and then appellant could “take over” work on the seat.
1
See TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2011).
2
When Billiot turned back to the work bench, something hard hit him in the head.
Billiot remembered ending up outside, where he spoke with his cousin who had
stopped by the shop, and waking up in the hospital. Billiot had had over a
thousand dollars in cash on him on the day of the incident.
After he was arrested, appellant gave two written confessions and a
videotaped confession. In these confessions, appellant admitted to hitting Billiot
with something, probably a pipe, taking the money that Billiot had on him, and
running away. Appellant’s descriptions of the events that transpired at the shop in
his confessions were consistent with Billiot’s testimony at trial.
The trial court entered a discovery order requiring the State to produce
(1) all statements by appellant pursuant to Code of Criminal Procedure article
38.22 and all written statements made by appellant in connection with this offense
and (2) any exculpatory or mitigating evidence within the possession, custody, or
control of the State. The discovery order required the parties to complete
discovery by the date of the pre-trial conference—March 11, 2011—and imposed
upon the State a continuing duty to supplement.
Appellant moved to suppress his written confessions, arguing that they were
not voluntary because he was intoxicated at the time that he made the statements.
At the February 24, 2011 suppression hearing, Texas City Police Department
Officer D. Matheson testified that no videotaped confession existed. Defense
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counsel asked Officer Matheson why he did not record appellant’s confession, and
Matheson responded, “We don’t have a room that’s dedicated solely for video. We
have eight detectives and I didn’t video.” Defense counsel asked whether officers
sometimes videotape interviews, and Officer Matheson responded that some
interviews are recorded. When asked why one interview would be video-recorded
and another one would not be video-recorded, Matheson replied, “The vast
majority are written statements. We have no dedicated video room where there’s a
video set up, availability of equipment.”
The trial court denied appellant’s motion to suppress the written confessions.
The trial court issued findings of fact and conclusions of law, and it ultimately
concluded that the written confessions were made voluntarily.
At trial, the State introduced both of appellant’s written confessions, as well
as a videotaped confession. Defense counsel stated on the record that he received a
copy of the video in May or June 2011, approximately four or five months before
trial. Defense counsel re-urged the previous motion to suppress the written
confessions and objected to the admission of the videotaped confession on the
basis that this confession was also not made voluntarily. Defense counsel noted
that Officer Matheson had testified at the suppression hearing that no videotaped
confession existed, but counsel did not argue at trial that the State had wrongfully
withheld evidence in violation of the trial court’s discovery order, nor did he argue
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that the State failed to preserve the videotaped confession. The court, “knowing
that the video statement has been presented with a sufficient amount of time for
everybody to look at,” denied appellant’s motion to suppress the videotaped
confession.2
Officer Matheson acknowledged that, at the suppression hearing, defense
counsel asked him if he had taken a video statement and he said no. He testified
that he “totally forgot about” the videotaped confession. He stated that, on the
morning of the hearing, he was called out on another matter very early in the
morning, and he asked the records department to pull a copy of his report in
appellant’s case before the hearing, but “[t]hey didn’t pull the actual case file that
had the video in it.” He discovered the videotaped confession in the file several
months before trial when a representative of the district attorney’s office requested
2
The clerk’s record contains further indications that appellant and his trial counsel
knew of the videotaped confession several months before trial. Appellant’s trial
counsel sent appellant a letter dated May 7, 2011, in which he stated, “You
previously had a hearing on your confession in which you signed two confessions
of your crime. The video was not available at that time. However, you have now
had the opportunity to view the confession video. You chose not to watch it in its
entirety. The court has ruled that the confession is admissible and will be viewed
by the jury.” Appellant’s original trial counsel moved to withdraw on June 8,
2011, and he mentioned in his motion that he and appellant were having
“substantial conflicts as to trial strategy as to defendant’s written and videotaped
confessions.” Appellant filed a pro se motion to dismiss the prosecution, in which
he stated that, on May 6, 2011, the district attorney informed him that a videotaped
confession existed and that he watched the confession with his trial counsel and a
bailiff at the district attorney’s office. On June 12, 2011, appellant filed a pro se
motion to suppress the written and the videotaped confessions. Appellant’s
second appointed attorney also acknowledged the videotaped confession in a
motion for continuance filed on July 22, 2011.
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the hard copy of the file. The State notified defense counsel at that time, and
appellant and his counsel watched the video at the district attorney’s office.
The jury convicted appellant of aggravated robbery and, after finding the
allegations in an enhancement paragraph true, it assessed punishment at fifty years’
confinement.
Preservation of Videotaped Confession
In his sole issue, appellant contends that the State erred by failing to
preserve evidence of his videotaped confession in violation of Code of Criminal
Procedure article 38.22. The State contends that this issue is meritless because
(1) the State preserved the videotape, appellant was aware of the videotape and had
an opportunity to view it several months before trial, and the videotape was
actually admitted at trial; and (2) at trial, appellant objected to the admission of the
videotape solely on the basis that his confession was not voluntary, and he did not
object on the grounds that the State failed to preserve the videotape or that the
State wrongfully withheld production of the videotape in violation of the discovery
order. We agree with the State.
Code of Criminal Procedure article 38.22 provides, “Every electronic
recording of any statement made by an accused during a custodial interrogation
must be preserved until such time as the defendant’s conviction for any offense
relating thereto is final, all direct appeals therefrom are exhausted, or the
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prosecution of such offenses is barred by law.” TEX. CODE CRIM. PROC. ANN. art.
38.22, § 3(b) (Vernon 2005).
Here, the State did not violate article 38.22, section 3(b). Id. The State did
not destroy the videotape of appellant’s confession; instead, it did not discover that
the videotaped confession existed until after the trial court had ruled on appellant’s
motion to suppress his written confessions. When it discovered that it had the
videotaped confession in its possession, but had not produced it, it notified defense
counsel, who viewed the videotape with appellant at the district attorney’s office.
At trial, defense counsel acknowledged that he had received a copy of the
videotaped confession several months before trial. The State offered, and the trial
court admitted into evidence, the videotaped confession. Thus, the videotaped
confession has been preserved in accordance with article 38.22, section 3(b).
To the extent appellant contends that the State violated the trial court’s
discovery order requiring the State to produce all of appellant’s statements and any
mitigating or exculpatory evidence, and therefore that the trial court erroneously
admitted the videotaped confession, we conclude that appellant failed to preserve
this issue for appellate review. When the State discloses evidence that was
withheld in violation of a discovery order at trial, the defendant’s failure either to
object to the admission of the evidence on this basis or to request a continuance
waives the error “or at least indicates that the delay in receiving the evidence was
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not truly prejudicial.” See Apolinar v. State, 106 S.W.3d 407, 421 (Tex. App.—
Houston [1st Dist.] 2003) (holding that failure to request continuance waives
complaint that State withheld exculpatory evidence in violation of Brady v.
Maryland),3 aff’d on other grounds, 155 S.W.3d 184 (Tex. Crim. App. 2005); see
also Smith v. State, 314 S.W.3d 576, 586 (Tex. App.—Texarkana 2010, no pet.)
(holding Brady challenge not preserved because trial court never ruled on
complaint); Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007,
no pet.) (holding that defendant must request continuance and present Brady
complaint in motion for new trial to preserve complaint for appellate review);
Young v. State, 183 S.W.3d 699, 706 (Tex. App.—Tyler 2005, pet. ref’d) (“The
failure to request [a continuance] waives any Brady violation, as well as any
violation of a discovery order.”).
Here, appellant became aware of the videotaped confession approximately
four or five months before trial. Appellant and his trial counsel had the
opportunity to view this videotape. When the State offered the videotape into
evidence at trial, defense counsel objected solely on the ground that appellant’s
confession was not voluntary. He did not object on the basis that the State
wrongfully withheld material evidence in violation of the discovery order, nor did
he file a motion for new trial raising this argument. Cf. Kirksey v. State, 132
3
See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) (requiring that State
turn over material, favorable evidence to defendant).
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S.W.3d 49, 54 (Tex. App.—Beaumont 2004, no pet.) (holding complaint preserved
when “colloquy among counsel and the court [made it clear] that all parties
understood that Appellant was objecting to the timeliness of the State’s production
of certain photographs in alleged violation of the pre-trial discovery order”).
Moreover, a defendant’s trial objection must comport with his objection to the
evidence on appeal in order for error to be preserved. See TEX. R. APP. P.
33.1(a)(1)(A); Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (citing
Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)). We therefore
conclude that appellant failed to preserve for appellate review any complaint that
the State violated the discovery order or otherwise wrongfully withheld evidence.
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Do Not Publish. TEX. R. APP. P. 47.2(b).
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