Kevin Ramon Gray v. State ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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KEVIN RAMON GRAY, No. 08-14-00103-CR
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Appellant, Appeal from the
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v. 372nd Criminal District Court
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THE STATE OF TEXAS, of Tarrant County, Texas
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Appellee. (TC# 1320429D)
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O P I N I O N1
Kevin Ramon Gray appeals the trial court’s judgment convicting him of aggravated assault
with a deadly weapon and sentencing him to eight years’ imprisonment. In three issues, he
complains of the sufficiency of the evidence (Issue One), the trial court’s ruling on his motion to
suppress (Issue Two), and the State’s failure to produce the complaining witness at trial (Issue
Three). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Gray was charged with assaulting his wife, Deborah Gray, with a deadly weapon. The
charge arose from events transpiring in the late night hours of March 27, 2013. At approximately
10:30 p.m., Arlington Police Officers Anthony Crowsey and Thomas Hruskocy responded to a
1
This case was transferred to this Court from the Second Court of Appeals pursuant to an order issued by the Supreme
Court of Texas. See TEX.GOV’T CODE ANN. § 73.001 (West 2013).
911 hang-up call originating from the Grays’ townhome. Upon arriving at the scene, they learned
that Deborah, clutching her throat in pain, was the caller. When Gray retreated into the
townhome’s interior, Officer Crowsey followed him to the dining area and instructed him to sit
down at a small table. While Gray was seated, Officer Crowsey asked him to relate what
occurred. Gray told Officer Crowsey that he and Deborah had gotten into an argument in their
bedroom during which Deborah threatened to have someone come over and “kick his butt.” The
threat prompted Gray to get a knife:
[A]nd raise[] it up [over his head] . . . in like a stabbing [down] motion . . . trying to
scare [Deborah], . . . [not] trying to stab her, but . . . [believing that if he] [came] in
and [gave] a stabbing motion that it would scare her into stop threatening him and
stop the argument.
“[Deborah] slapped at the knife[,]” forcing it “into [Gray’s] left hand.” The two “tussled,” at
which point, Gray grabbed Deborah by the neck and pushed her down onto the bed.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Gray contends that the evidence is insufficient to sustain his conviction.
We disagree.
Standard of Review
The legal sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979), is the only standard a reviewing court applies in
determining whether the evidence is sufficient to support a conviction. Brooks v. State, 323
S.W.3d 893, 894-95 (Tex.Crim.App. 2010). When reviewing the sufficiency of the evidence to
support a criminal conviction, we view the evidence in the light most favorable to the verdict to
determine whether, based on that evidence and reasonable inferences therefrom, a rational juror
could have found the essential elements of the offense beyond a reasonable doubt. Hooper v.
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State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007), quoting Jackson, 443 U.S. at 318-19, 99 S.Ct. at
2788-89.
Under a legal sufficiency review, we may not substitute our judgment for that of the jurors,
who are the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given
to the evidence. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App. 2007). We therefore
defer to the jurors’ resolution of these issues and to their responsibility to draw reasonable
inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13, citing Jackson, 443 U.S.
at 318-19, 99 S.Ct. at 2788-89. In resolving what the facts are and what reasonable inferences
may be drawn from them, the jurors may accept one version of the facts and reject another, and
they may reject any part of a witness’s testimony, even if uncontradicted. See Margraves v. State,
34 S.W.3d 912, 919 (Tex.Crim.App. 2000), overruled on other grounds, Laster v. State, 275
S.W.3d 512 (Tex.Crim.App. 2009); Henderson v. State, 29 S.W.3d 616, 623 (Tex.App.--Houston
[1st Dist.] 2000, pet. ref’d).
Applicable Law
A person commits an assault if he intentionally or knowingly threatens another with
imminent bodily injury. TEX.PENAL CODE ANN. § 22.01(a)(2)(West Supp. 2015). The assault
becomes aggravated when the person uses or exhibits a deadly weapon during the commission of
the assault. TEX.PENAL CODE ANN. § 22.02(a)(2)(West 2011). A deadly weapon is defined as
“anything in the manner of its use or intended use is capable of causing death or serious bodily
injury.”2 TEX.PENAL CODE ANN. § 1.07(a)(17)(B)(West Supp. 2015). Although a knife is not a
2
“Serious bodily injury” is “bodily injury that creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
TEX.PENAL CODE ANN. § 1.07(a)(46)(West Supp. 2015).
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deadly weapon per se, it becomes one if the person brandishing it, uses it, or intends to use it in a
manner capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503
(Tex.Crim.App. 2000).
Discussion
When viewed in the light most favorable to the verdict, the evidence is sufficient to support
the jury’s verdict. The State established that Gray intentionally threatened Deborah with
imminent bodily injury while exhibiting a deadly weapon. As recounted above, Officer Crowsey
testified that Gray admitted to raising a knife over his head and bringing it down in a stabbing
motion with the intent to scare, but not injure, Deborah. Although Gray related to Officer
Crowsey that he meant only to scare Deborah while brandishing the knife, the jury was free to
disbelieve this portion of Gray’s account and, given the evidence presented, conclude that Gray
intended to threaten Deborah with imminent bodily injury. The evidence permitting the jury to so
conclude consisted of the manner in which Gray used the knife and his own words and actions.
The knife, which was introduced into evidence and shown to the jury, is plainly capable of causing
death or serious bodily injury. Its blade is approximately six inches long, appears razor sharp, and
ends in a sharp point.
Gray argues that the evidence is insufficient to sustain his conviction because:
The State did not corroborate the statement from the Appellant by the
alleged victim, Mrs. Gray. The conviction is based on the testimony from Officer
Crowsey as to what he recalls what the complaining witness told him.
As best we can surmise, Gray is contending that the State was required to corroborate the veracity
of his wife’s statements—as related by him and by her—to Officer Crowsey to connect him to the
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charged offense.3 But Gray cites no authority, and we have found none, for the proposition that a
victim’s statements connecting the defendant to the charged offense must be corroborated before a
police officer may testify to these statements. It appears that, in advancing his proposition, Gray
has appropriated from Article 38.14 of the Texas Code of Criminal Procedure the requirement that
a conviction cannot stand on an accomplice witness’s testimony unless the testimony is
corroborated by other, inculpatory evidence tending to connect the accused to the offense. See
TEX.CODE CRIM.PROC.ANN. art. 38.14 (West 2005); Smith v. State, 332 S.W.3d 425, 439, 442
(Tex.Crim.App. 2011). Of course, this evidentiary requirement is inapplicable here because
Deborah was the victim, not an accomplice. Accordingly, the State was under no obligation to
corroborate the veracity of Gray’s statement to Officer Crowsey recounting Deborah’s threat.
Moreover, we note that Officer Crowsey testified to what Gray, rather than Deborah, told him.
With respect to Deborah, Officer Crowsey merely related to the jury that her statements furnished
a basis for arresting Gray.
Gray’s first issue is overruled.
CUSTODIAL INTERROGATION
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The State interprets Gray’s complaint as one challenging the sufficiency of the evidence based on its failure to
corroborate his confession with independent evidence as required by the corpus delicti rule. This rule of evidentiary
sufficiency fashioned by the courts provides that, when the burden of proof is beyond a reasonable doubt, a
defendant’s extrajudicial confession does not constitute legally sufficient evidence of guilt absent independent
evidence of the corpus delicti. Hacker v. State, 389 S.W.3d 860, 865 (Tex.Crim.App. 2013)(internal quotation marks
omitted). The rule’s purpose is to ensure that a person is not convicted based solely on his own false confession to a
crime that never occurred. Carrizales v. State, 414 S.W.3d 737, 740 (Tex.Crim.App. 2013)(internal quotation marks
omitted). To satisfy the rule, the State must adduce independent evidence “show[ing] that the ‘essential nature’ of the
charged crime was committed by someone.” Hacker, 389 S.W.3d at 866. The State contends that it met its
obligation here because the following evidence tends to show that, more likely than not, someone committed
aggravated assault with a deadly weapon:
(1) “Officer Crowley’s [sic] discovery of the knife, which Appellant used to threaten Ms. Gray in
the bedroom, where the assault occurred[;]” and
(2) “Officer Crowsey’s observation of Ms. Gray holding her throat in pain.”
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In his second issue, Gray argues that the trial court erred by denying his pretrial motion to
suppress his inculpatory statements to Officer Crowsey because he was in custody and had not
been advised of his Miranda rights. We disagree.
Standard of Review
Because questions of custody present a mixed question of law and fact, we afford almost
total deference to a trial judge’s “custody” determination when the questions of historical fact turn
on credibility and demeanor. See Herrera v. State, 241 S.W.3d 520, 526 (Tex.Crim.App. 2007);
see also Jeffley v. State, 38 S.W.3d 847, 853 (Tex.App.--Houston [14th Dist.] 2001, pet. ref’d).
When, however, the questions of historical fact do not turn on credibility and demeanor, we review
a trial judge’s “custody” determination de novo. See Herrera, 241 S.W.3d at 526-27; Jeffley, 38
S.W.3d at 853. The defendant, not the State, carries the initial burden of establishing that a
statement was the product of custodial interrogation. Herrera, 241 S.W.3d at 526.
Applicable Law
Article 38.22 of the Texas Code of Criminal Procedure prohibits the admission of an
accused’s statement resulting from a custodial interrogation unless he was advised of his Miranda
rights and voluntarily waived those rights. TEX.CODE CRIM.PROC.ANN. art. 38.22, §§ 2(a), 2(b),
3(a)(2)(West Supp. 2015); see Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966); see also Herrera, 241 S.W.3d at 526 (“Our construction of ‘custody’ for purposes of
Article 38.22 is consistent with the meaning of ‘custody’ for purposes of Miranda.”). But the
warnings required by Article 38.22 and Miranda apply only when a suspect is in custody. See
Herrera, 241 S.W.3d at 526.
A person is “in custody” if, under the circumstances, a reasonable person would believe his
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freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v.
California, 511 U.S. 318, 322-24, 114 S. Ct. 1526, 1528-30, 128 L. Ed. 2d 293 (1994); Dowthitt v.
State, 931 S.W.2d 244, 254 (Tex.Crim.App. 1996). We determine custody based on objective
circumstances, and any subjective intent of law enforcement officers or the person being
questioned are not controlling. Stansbury, 511 U.S. at 323, 114 S.Ct. at 1529.
As the Court of Criminal Appeals noted in Dowthitt, Texas courts have identified four
general situations that may constitute custody: (1) when the suspect is physically deprived of his
freedom of action in a significant way; (2) when a law-enforcement official tells a suspect he
cannot leave; (3) when law-enforcement officers create a situation that would lead a reasonable
person to believe that his freedom of movement has been significantly restricted; and (4) if there is
probable cause to arrest and law-enforcement officials do not tell the suspect that he may leave.
Dowthitt, 931 S.W.2d at 255, citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex.Crim.App. 1985).
The restraint upon freedom in the first three situations must be equivalent to that associated with an
arrest as opposed to an investigative detention. See Dowthitt, 931 S.W.2d at 255. In the fourth
situation, the officer’s knowledge of probable cause must be manifested to the suspect, and such
manifestation, considered in the totality of the circumstances, must lead a reasonable person to
believe he is not free to leave. Id.
Discussion
Considering the totality of the circumstances, several factors tend to show that Gray was
not in custody when questioned by Officer Crowsey. First, Gray was not physically deprived of
his freedom of action in a significant way. Although Gray was temporarily detained for
investigative purposes by Officer Crowsey, Gray was not placed in handcuffs or physically
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restrained in any manner while speaking to Officer Crowsey. Gray was formally arrested only
after Officer Crowsey had probable cause to believe Gray had committed a criminal offense.
Second, Officers Crowsey and Hruskocy did not communicate to Gray that he was not free to
leave while being temporarily detained for investigative purposes. Although Officer Crowsey
acknowledged that Gray was not free to leave during their initial encounter, Officer Crowsey was
not asked, nor did he volunteer, if he communicated this to Gray. And third, Officers Crowsey
and Hruskocy did not create a situation that would lead a reasonable person to believe his freedom
of movement has been significantly restricted. Gray sat at the kitchen table in his home when
questioned by Officer Crowsey and remained there after providing his statement. Although
Officer Hruskocy sat at the kitchen table with Gray “to make sure that he was sitting, being
cooperative at that point” while Officer Crowsey questioned Deborah, the questioning Gray
complains about had ceased by then. Furthermore, Officer Crowsey testified that Officer
Hruskocy was not “physically holding on to [Gray][,]” and there is no evidence that Gray was
surrounded by Officers Crowsey and Hruskocy when providing his statement. In sum, it is
evident the restraint upon Gray’s freedom of movement is not equivalent to that associated with an
arrest. See Dowthitt, 931 S.W.2d at 255.
Gray asserts that he “was clearly in custody[,]” but apart from his conclusory assertion, he
has failed to explain why this is necessarily so. Indeed, in the section of his brief devoted to this
issue, Gray does not identify a single fact in support of his assertion, much less a reasoned
explanation of how any of the facts, individually or collectively, constitute custody.
Notwithstanding these briefing inadequacies, Gray has not established that the trial court abused
its discretion in failing to suppress his inculpatory statements to Officer Crowsey. Contrary to
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defense counsel’s argument in the trial court, the mere fact that Officer Crowsey “walk[ed] in full
uniform, gun at his waist,” “agree[d] [Gray] was not free to leave[,]” and “kept [Gray] in one
spot,” without more, is insufficient to demonstrate that Gray was in custody.
Gray’s second issue is overruled.
CONFRONTATION CLAUSE
In his third issue, Gray asserts that the State’s failure to produce Deborah at trial violated
his Sixth Amendment right to confront and cross-examine her. We disagree.
Applicable Law
The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to
confront the witnesses against her. U.S. CONST. amend. VI; Pointer v. Texas, 380 U.S. 400, 403,
85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965). The Clause prohibits the admission of
out-of-court testimonial statements made by a witness who does not appear at trial unless she is
unavailable and the defendant had a prior opportunity to cross-examine her. Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365-66, 158 L. Ed. 2d 177 (2004). But since the
Sixth Amendment right to confront is a trial right, a Confrontation Clause complaint is waived on
appeal if a defendant fails to object at trial on this basis. Reyna v. State, 168 S.W.3d 173, 179-80
(Tex.Crim.App. 2005); Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004).
Discussion
Gray has not preserved his Confrontation Clause complaint for appellate review.
At guilt-innocence, Gray did not object to the testimony of any of the State’s witnesses on
the basis that it violated his constitutional right to confront Deborah. Defense counsel did raise a
hearsay objection when the prosecutor asked Officer Crowsey to disclose what Deborah told him:
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I think, Judge, that his answer is going to lead to the State trying to get into hearsay
testimony through the back door that this Court has already ruled on.
Counsel was referring to the motion in limine she filed, and the trial court granted,4 preventing the
State and any of its witnesses from mentioning “any of [Deborah’s] testimony and any of her
statements and the officers testifying to anything she said or wrote down.” The trial court noted
and overruled the hearsay objection. But counsel’s hearsay objection was not specific enough to
alert the trial court to any claim that the State violated Gray’s Sixth Amendment right to confront
his accuser. Reyna, 168 S.W.3d at 179-80; Paredes, 129 S.W.3d at 535. This is because a
hearsay objection and a Confrontation Clause objection “are neither synonymous nor necessarily
coextensive.” Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991). Further, because a
Confrontation Clause complaint is not fundamental error, we have no obligation to address it on
appeal. 5 See Marin v. State, 851 S.W.2d 275, 278-80 (Tex.Crim.App. 1993)(a principal
characteristic of fundamental rights, such as the rights to assistance counsel and to a jury trial, is
that they can be relinquished only by affirmative action, not inaction), overruled on other grounds
by Cain v. State, 947 S.W.2d 262 (Tex.Crim.App. 1997).
At punishment, Gray did lodge separate Confrontation Clause complaints to the admission
of two exhibits—one containing jail booking prints and the other jail records—arguing that he had
the right to confront the individuals who took the prints and created the records. The trial court
overruled both objections. But Gray does not complain of the trial court’s rulings on these
4
The trial court granted it orally.
5
In its brief, the State does address the merits of Gray’s complaint. The State contends that Gray’s right to confront
and cross-examine Deborah was not implicated because neither Gray’s inculpatory statements to Officer Crowsey nor
Deborah’s statements to Gray can be considered testimonial hearsay subject to the Confrontation Clause. According
to the State, Gray’s inculpatory statements are non-hearsay admission of a party opponent and Deborah’s threat to
Gray was not made under circumstances that would lead an objective witness to believe that the statement would be
available for use at a later trial.
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matters, and it cannot be reasonably argued that these two Confrontation Clause objections are so
broad in scope that they encompass an additional, unstated Confrontation Clause objection to the
State’s failure to produce Deborah at trial.6
Gray’s third issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
December 2, 2015
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
6
We note that Deborah testified on Gray’s behalf at punishment.
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