Jaime Brito v. the State of Texas ( 2022 )


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  • Opinion filed October 27, 2022
    In The
    Eleventh Court of Appeals
    __________
    No. 11-21-00025-CR
    __________
    JAIME BRITO, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 142nd District Court
    Midland County, Texas
    Trial Court Cause No. CR50331
    MEMORANDUM OPINION
    The jury convicted Appellant, Jaime Brito, of evading arrest or detention with
    a vehicle. See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A) (West 2016). The jury
    also found “true” to two prior convictions alleged by the State for enhancement
    purposes.    The jury assessed Appellant’s punishment at confinement in the
    Institutional Division of the Texas Department of Criminal Justice for a term of fifty
    years. Appellant presents two issues in which he complains of evidence admitted
    during the punishment phase of trial. We modify and affirm.
    Background Facts
    On August 27, 2017, at around 11:30 p.m., two deputies from the Midland
    County Sheriff’s Office were dispatched to a call involving a dark-colored, “bigger”
    Dodge pickup traveling eastbound from Odessa to Midland at a high rate of speed
    and in a reckless manner. The deputies began traveling westbound on Highway 80
    around Loop 250 in their marked patrol vehicles in search of the pickup. They
    observed an eastbound pickup matching the description of the reported vehicle. One
    deputy, using his radar gun, determined that the pickup was traveling over 115 miles
    per hour.
    The two deputies crossed the center median and began traveling eastbound on
    Highway 80 in an attempt to catch up to the pickup. Appellant, the driver of the
    pickup, used Highway 80’s on-ramp to Loop 250 and began traveling along
    Loop 250. The lead deputy activated his emergency lights after he watched the
    driver of the pickup cut off several vehicles at an intersection. Appellant then exited
    Loop 250 and began traveling on the southbound service road of Interstate
    Highway 20 (I-20). While pursuing the pickup, the lead deputy saw Appellant
    frequently veer into “the wrong side of the road” to pass other vehicles and almost
    lose control of the pickup.
    Appellant eventually stopped about 200 feet past the intersection of I-20 and
    Jasmine Road in Midland. The deputies had pursued Appellant with both patrol
    vehicles’ emergency lights activated and one patrol vehicle’s siren activated for at
    least a mile before Appellant came to a stop. The deputies then conducted a felony
    traffic stop. Appellant was arrested and transported to jail.
    2
    Appellant absconded on the second day of the guilt/innocence phase of his
    trial. The trial continued, and the jury found Appellant guilty of the offense of
    evading arrest or detention with a vehicle as charged in the indictment. The case
    proceeded to the punishment phase in Appellant’s absence, and the jury assessed
    Appellant’s punishment at confinement for a term of fifty years. Nineteen months
    later, after Appellant was apprehended, the trial court sentenced him. Appellant’s
    appeal focuses on the punishment phase—specifically, the trial court’s admission of
    photographs of Appellant’s tattoos and subsequent testimony that the tattoos
    indicated that Appellant was a member of a gang.
    Analysis
    In his first issue, Appellant contends that the trial court abused its discretion
    in admitting evidence of Appellant’s gang membership based on an alleged lack of
    notice. The State contends that Appellant did not preserve this complaint for
    appellate review because he did not object, at the time the evidence was admitted,
    as previously instructed to do so by the trial court.
    “As a prerequisite to presenting a complaint for appellate review,” a party
    must have made a timely request, objection, or motion to the trial court “with
    sufficient specificity to make the trial court aware of the complaint, unless the
    specific grounds were apparent from the context.” TEX. R. APP. P. 33.1(a)(1)(A).
    The trial court must then either “(A) rule[] on the request, objection, or motion, either
    expressly or implicitly; or (B) refuse[] to rule on the request, objection, or motion,
    and the complaining party objected to the refusal.” TEX. R. APP. P. 33.1(a)(2).
    Appellant contends that he did not receive timely notice of the State’s intent to offer
    evidence of Appellant’s gang membership. His trial counsel made this complaint on
    multiple occasions at trial.
    3
    We direct our attention to matters discussed by the trial court and counsel
    prior to the punishment phase. The prosecutor advised the trial court that the State
    intended to offer evidence of Appellant’s gang affiliation at punishment. Appellant
    objected to this evidence on the basis of inadequate notice that hampered Appellant’s
    trial preparation. The prosecutor responded to this complaint by indicating that the
    State was not able to confirm Appellant’s gang membership until “just before”
    providing notice to Appellant’s trial counsel. The prosecutor further responded that
    Appellant had not filed any discovery motions, and that Appellant was therefore not
    entitled to notice of the State’s intent to introduce evidence of Appellant’s gang
    membership and expert testimony about gangs. Appellant did not dispute this point
    at trial and conceded that he did not file discovery motions, but he maintained that
    the State’s “spring[ing] up a witness at the last minute” disadvantaged Appellant
    because it was “standard procedure” for the State to provide notice.
    The prosecutor also explained that his original plan was to prove Appellant’s
    gang membership by having photographs of Appellant’s tattoos taken in court during
    trial. However, due to Appellant’s decision to abscond during trial, the State needed
    to find an alternative means of introducing Appellant’s tattoos into evidence. Thus,
    the State informed the trial court that it planned to call a DPS investigator to testify
    that the DPS gang database had an entry for Appellant that included photographs of
    Appellant’s tattoos so that the State could offer the photographs into evidence.
    After hearing arguments from the prosecutor and Appellant’s trial counsel,
    the trial court made the following announcement:
    What I’m going to do is go ahead and let Lieutenant Davis
    testify, Officer Claire, and Investigator Marks, pertaining to the
    subjects which [the prosecutor] went over earlier. And when you make
    your objection, [Appellant’s trial counsel], in front of the jury, then the
    Court will grant you a running objection as to the line of questioning,
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    the answers given, and any comment by opposing counsel during
    closing statements.
    Appellant made no further objections or requests that the trial court give a final
    ruling on his objection based on lack of notice.
    When the DPS investigator was called to testify during the punishment phase,
    Appellant’s trial counsel asked to approach the bench. After a sotto voce discussion
    as to the scope of the DPS investigator’s testimony, Appellant clarified that he would
    not have an objection “[a]s long as it’s just factual testimony, but if he’s an expert,
    then I’m going to have an objection to him, similar to the one I made on [the gang
    expert].” The trial court instructed Appellant to “make [his] objections as we go
    along.”
    Despite the trial court’s instruction, Appellant never made an objection based
    on lack of notice during the DPS investigator’s testimony—even when the DPS
    investigator’s testimony extended past authenticating the photographs from the gang
    database and into his knowledge of the tattoos’ meanings and the gang’s activities.
    Instead, Appellant made three other objections throughout the DPS investigator’s
    testimony: lack of authentication, hearsay, and relevance. The State’s gang expert
    was not called and did not testify, and the trial court proceeded to the charge
    conference after the DPS investigator’s testimony concluded.
    The State asserts on appeal that the trial court did not make a ruling on
    Appellant’s complaint of lack of notice because it instructed Appellant’s trial
    counsel to make his objection in front of the jury. We disagree. Prior to making the
    statement to Appellant’s trial counsel, the trial court stated that it was going to let
    the State’s witnesses testify on the subjects indicated by the prosecutor, which
    included Appellant’s gang membership. This comment constituted a ruling on
    Appellant’s objection based on lack of notice. Furthermore, because the trial court
    made this ruling outside the presence of the jury, Appellant was not required to
    5
    renew the objection in the presence of the jury to preserve error. See TEX. R.
    EVID. 103(b).
    We review a trial court’s evidentiary ruling under an abuse of discretion
    standard. Dabney v. State, 
    492 S.W.3d 309
    , 318 (Tex. Crim. App. 2016). “A trial
    judge abuses his discretion when his decision falls outside the zone of reasonable
    disagreement.” Johnson v. State, 
    490 S.W.3d 895
    , 908 (Tex. Crim. App. 2016). We
    will uphold the trial court’s ruling on the admission or exclusion of evidence if the
    ruling was proper under any legal theory or basis applicable to the case. Devoe v.
    State, 
    354 S.W.3d 457
    , 469 (Tex. Crim. App. 2011).
    Appellant asserted that he did not have enough time to prepare an adequate
    defense to the gang expert’s testimony based on the short notice provided by the
    State. The reasonableness of the State’s notice under Article 37.07, section 3(g) and
    Rule 404(b) of its intent to use extraneous offenses at the punishment phase
    generally turns on the facts and circumstances of each case. Ferrer v. State, 
    548 S.W.3d 115
    , 119 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d); see TEX. CODE
    CRIM. PROC. ANN. art. 37.07, § 3(g) (West Supp. 2022); TEX. R. EVID. 404(b).
    “[T]here is no bright line as to the number of days or amount of time alone [that]
    constitutes reasonable notice” under Article 37.07, section 3(g) or Rule 404(b).
    Ferrer, 
    548 S.W.3d at 120
     (second alteration in original) (quoting Patton v. State,
    
    25 S.W.3d 387
    , 393 (Tex. App.—Austin 2000, pet. ref’d)).
    The State provided reasonable responses to Appellant’s objection based on
    lack of notice. The State informed the trial court that it had amended its notice of
    extraneous offenses to include evidence of Appellant’s gang membership the day
    before the start of the guilt/innocence phase of trial because the State did not receive
    confirmation that Appellant was a confirmed gang member until then. Further, the
    State asserted that the need for the photographs of Appellant’s tattoos only came
    6
    about because of Appellant’s decision to abscond. Finally, the State informed the
    trial court that Appellant was not entitled to notice due to his failure to file any
    discovery motions. Thus, the record does not demonstrate that the trial court abused
    its discretion in determining that the State gave reasonable notice of its intent to
    introduce evidence of Appellant’s gang membership.
    We note that Appellant asserts for the first time on appeal that he was also
    entitled to timely notice because an oral request for the State’s compliance with
    Article 39.14 was made before trial began. See CRIM. PROC. art. 39.14. Appellant
    contends that “[w]hile nothing in the record indicates Appellant filed a written
    request for discovery, nothing in Article 39.14 requires the request be in writing.
    An oral request for discovery would be sufficient to invoke Article 39.14.”
    Appellant cites no case law in support of this proposition. Appellant also argues that
    his oral request under Article 39.14 required the State to comply and provide all
    punishment evidence to Appellant, “including testimony regarding gang
    membership and State’s Exhibit Nos. 24 through 28 relating to proof of said gang
    membership, regardless of any other statute or rule of evidence” (emphasis added).
    Appellant cites to Watkins v. State, 
    619 S.W.3d 265
     (Tex. Crim. App. 2021), in
    support of this proposition.
    While the facts of Watkins are similar in that it discusses whether the trial
    court erred in admitting evidence in the punishment phase of trial, the main issue in
    Watkins concerns the definition of “material” in Article 39.14(a). See Watkins, 619
    S.W.3d at 271. Regarding discovery requests, Watkins states that “[w]ith the
    exception of privileged evidence and evidence specifically covered by other
    statutory provisions, the only obstacle to disclosure of evidence not already covered
    by Article 39.14(h) is the lack of a specific request.” Id. at 278. Thus, Watkins does
    not expand the definition of a proper request for discovery under Article 39.14 to
    7
    include an oral request. Without a record showing the specific items for which
    Appellant sought discovery under Article 39.14, we are unable to determine that the
    trial court abused its discretion by admitting the items into evidence. See Davy v.
    State, 
    525 S.W.3d 745
    , 750–51 (Tex. App.—Amarillo 2017, pet. ref’d).
    Moreover, irrespective of Appellant’s contention that oral discovery requests
    under Article 39.14 are proper, the record does not show that an oral request for
    discovery was made. In support of his assertion on appeal that an oral request was
    made prior to trial, Appellant references the “State’s Certification of Discovery for
    Trial Under Article 39.14 C.C.P.” The State’s Certification includes language that
    the listed discovery was turned over to the defense “after the above-named
    Defendant requested discovery.” However, the State repeatedly informed the trial
    court that Appellant had not filed any discovery motions. Appellant’s trial counsel
    did not refute the State’s claims, nor did he assert that an oral request for discovery
    had been made. Had Appellant made an oral discovery request under Article 39.14,
    one would assume that his trial counsel would have corrected the State’s contention
    that no discovery requests were made by Appellant.
    In light of the foregoing, the trial court had no reason to believe that Appellant
    made an oral discovery request under Article 39.14. Furthermore, we are unable to
    determine that the trial court abused its discretion without a record of the particular
    discovery request that Appellant alleged he made. See 
    id.
     Thus, the trial court’s
    determination that Appellant received adequate notice lies within the zone of
    reasonable disagreement and was not an abuse of discretion.              We overrule
    Appellant’s first issue.
    In his second issue, Appellant contends that the trial court abused its discretion
    when it admitted evidence of Appellant’s gang membership. He contends that this
    evidence was illegally obtained.      Specifically, Appellant asserts that the gang
    8
    database entry pertaining to Appellant was created in violation of his Miranda 1
    rights. In support of this contention, Appellant contends that the gang database entry
    exists solely because of Appellant’s nonjudicial self-admission, which was made
    during a custodial interrogation conducted without Appellant’s waiver of his
    Miranda rights. Therefore, Appellant contends, the gang database entry—which
    included photographs of Appellant’s tattoos and Appellant’s nonjudicial self-
    admission—should not have been admitted. However, Appellant did not present any
    of these contentions to the trial court for consideration.
    Appellant’s second issue has not been properly preserved for review on
    appeal. The Texas Court of Criminal Appeals “has consistently held that in order to
    complain about the admissibility of an admission or confession there must be an
    objection thereto in the trial court. The objection must call the attention of the trial
    court to the particular complaint raised on appeal.” Fancher v. State, 
    659 S.W.2d 836
    , 839 (Tex. Crim. App. 1983) (emphasis added); see Ex parte Bagley, 
    509 S.W.2d 332
    , 333 (Tex. Crim. App. 1974) (“[I]n order to complain about the
    admissibility of a confession, even in regard to a violation of Miranda, and other
    federally guaranteed constitutional rights, there must be an objection in the trial
    court.”).
    Appellant did not object on the basis of a Miranda violation to the
    admissibility of the gang database entry, the tattoo photographs, 2 or the nonjudicial
    self-admission at trial. Rather, the only trial objections to the gang database entry
    1
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    2
    We note that in Martin v. State, we determined that the display of a defendant’s tattoos to the jury
    is not a violation of the right against self-incrimination. 
    570 S.W.3d 426
    , 438–39 (Tex. App.—Eastland
    2019, pet. ref’d) (citing Canales v. State, 
    98 S.W.3d 690
    , 697 (Tex. Crim. App. 2003)). We held that the
    display of a defendant’s tattoo is not a compelled testimonial communication, and that an accused can be
    compelled to disclose a tattoo to the jury irrespective of its location on the accused’s body. 
    Id.
     (citing
    Sauceda v. State, 
    309 S.W.3d 767
    , 769 (Tex. App.—Amarillo 2010, pet. ref’d)).
    9
    and its contents were lack of notice, lack of authentication, hearsay, and relevance.
    Therefore, Appellant did not preserve the alleged Miranda violation for appellate
    review because he did not object in the trial court on that basis. See Ex parte Bagley,
    
    509 S.W.2d at 333
    .
    We have already determined that the trial court did not abuse its discretion in
    admitting the tattoo photographs over Appellant’s objection based on lack of notice.
    Appellant does not assert on appeal that the trial court’s decision to overrule his
    objections based on lack of authentication, hearsay, and/or relevance was an abuse
    of discretion. Rather, Appellant contends that the trial court erred by admitting
    evidence that was obtained illegally—a point that has not been preserved for
    appellate review. Accordingly, we overrule Appellant’s second issue.
    Although not raised by Appellant, the State asserts that the district clerk
    erroneously assessed court-appointed attorney’s fees against Appellant. We agree.
    An indigent defendant cannot be taxed the cost of services rendered by his
    court-appointed attorney unless the trial court finds that the defendant has the
    financial resources to repay those costs in whole or in part. Smith v. State, 
    631 S.W.3d 484
    , 501 (Tex. App.—Eastland 2021, no pet.) (citing Mayer v. State, 
    309 S.W.3d 552
    , 556 (Tex. Crim. App. 2010)); see CRIM. PROC. art. 26.05(g). The Texas
    Court of Criminal Appeals has held that the trial court must find that the defendant
    had the ability to repay court-appointed attorney’s fees prior to assessing such fees
    against an indigent defendant. Cates v. State, 
    402 S.W.3d 250
    , 251–52 (Tex. Crim.
    App. 2013); see also Mayer, 
    309 S.W.3d at 556
     (“[T]he defendant’s financial
    resources and ability to pay are explicit critical elements in the trial court’s
    determination of the propriety of ordering reimbursement of costs and
    fees.”). Further, a “defendant who is determined by the [trial] court to be indigent
    is presumed to remain indigent for the remainder of the proceedings in the case
    10
    unless a material change in the defendant’s financial circumstances occurs.” Cates,
    402 S.W.3d at 251 (quoting CRIM. PROC. art. 26.04(p)).
    On July 3, 2018, Appellant filed an affidavit of indigence certifying that he
    did not have the necessary funds to hire an attorney for his defense for the instant
    case. The trial court determined that Appellant was indigent and appointed trial
    counsel to represent Appellant in this case. Subsequent to this appointment,
    Appellant hired counsel of his own to represent him in this case. The trial court
    granted Appellant’s motion to substitute counsel on October 1, 2018. Despite
    Appellant’s decision to hire counsel, the trial court did not issue a finding that
    Appellant had the ability to pay any portion of the attorney’s fees that were incurred
    by his court-appointed attorney.
    After trial, Appellant’s retained attorney filed a motion to withdraw. In the
    order granting counsel’s motion to withdraw, the trial court once again appointed
    counsel for Appellant to represent him on appeal. Nothing in the record indicates
    that the trial court made a subsequent determination that Appellant’s financial
    circumstances had materially changed or that he had the financial resources or ability
    to pay the court-appointed attorney’s fees of $250 that were assessed against
    him. Because the trial court ordered Appellant to pay all costs and the district clerk
    improperly assessed the attorney’s fees incurred by his court-appointed attorney as
    costs against Appellant, we modify the trial court’s judgment and order the district
    clerk to remove the improperly assessed fees. See Cates, 402 S.W.3d at 252; Smith,
    631 S.W.3d at 501.
    Here, the trial court’s judgment orders Appellant to pay “all costs in this
    proceeding incurred . . . [including] all court costs, fines, fees, assessments and
    restitution.”   The   district   clerk’s   amended    bill   of   costs   erroneously
    includes attorney’s fees as reimbursement costs for which Appellant is
    11
    responsible. Accordingly, we modify the trial court’s judgment to clarify that “all
    court costs, fines, fees, assessments and restitution” does not include court-appointed
    attorney’s fees. In addition, we modify the district clerk’s bill of costs to delete the
    court-appointed attorney’s fees assessed against Appellant. See TEX. R. APP. P. 43.6
    (“The court of appeals may make any other appropriate order that the law and the
    nature of the case require.”).
    This Court’s Ruling
    We modify the trial court’s judgment and the district clerk’s bill of costs to
    delete (1) the court-appointed attorney’s fees that were assessed against Appellant
    and (2) the trial court’s requirement that Appellant pay such fees. As modified, we
    affirm the judgment of the trial court.
    JOHN M. BAILEY
    CHIEF JUSTICE
    October 27, 2022
    Do not publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Bailey, C.J.,
    Trotter, J., and Williams, J.
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