Lonnie Dale Mason v. State

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00197-CR

Lonnie Dale Mason,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 66th District Court

Hill County, Texas

Trial Court No. 33,423

MEMORANDUM  Opinion

            Following a bench trial, the court convicted Lonnie Dale Mason of criminal solicitation of a minor and sentenced him to four years’ imprisonment.  Mason contends in his sole issue that the court erred by denying his motion to suppress in which he challenged the voluntariness of a recorded statement he made to two sheriff’s deputies.  We will affirm.

            We review a suppression ruling under an abuse-of-discretion standard.   Montanez v. State, 195 S.W.3d 101, 108 (Tex. Crim. App. 2006).  We afford almost total deference to the court’s determination of historical facts but review de novo the court’s ruling on mixed questions of law and fact which do not turn on the credibility and demeanor of witnesses.  Montanez, 195 S.W.3d at 106.  The voluntariness of a statement given to law enforcement is determined from the totality of the circumstances.  Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); Kearney v. State, 181 S.W.3d 438, 444 (Tex. App.—Waco 2005, pet. ref’d).

            Here, Deputy Kent Head was investigating an allegation that Mason had solicited the complainant to engage in sexual acts.  Mason went to the sheriff’s department to report that the complainant’s family had been making harassing phone calls to him.[1] Deputy Head first took Mason’s complaint then confronted him with the allegation against him.  The deputy read Mason his Miranda rights, and Mason signed a waiver of those rights.  After some discussion, Mason agreed to provide a statement.  The deputy suggested that Mason provide a videotaped statement so that he would not have to write out his statement.  At the beginning of the recording, Mason was again read his rights and signed a waiver of them.  During the course of the statement, Mason made inculpatory statements which would later be used at his trial.  After finishing his statement, Mason was allowed to leave.  He was at the sheriff’s department for at least two and one-half hours.  He was not arrested until nearly six months later.

            Mason contends that the videotaped statement should have been suppressed because it was not made voluntarily.  His complaint has two primary components: (1) the circumstances of the encounter at the sheriff’s department rendered the encounter the “functional equivalent of custodial interrogation”; and (2) his mental health status rendered the statement involuntary.

            A suspect’s statement may be found involuntary for: (1) failure to comply with the requirements of article 38.22 of the Code of Criminal Procedure; (2) failure to comply with Miranda; or (3) “violation of due process or due course of law because it was not freely given (e.g., coercion, improper influences, incompetency).”  Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996); accord Miller v. State, 196 S.W.3d 256, 266 (Tex. App.—Fort Worth 2006, pet. ref’d); Dawson v. State, 75 S.W.3d 533, 535 (Tex. App.—Texarkana 2002, no pet.).

            Article 38.22 and Miranda apply to statements made by a person in custody in response to interrogation or the functional equivalent of interrogation.  See Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005); Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297 (1980); Moran v. State, 213 S.W.3d 917, 922-23 (Tex. Crim. App. 2007). Conversely, “due process involuntariness claims do not necessarily require that the interrogation be custodial.  But in the absence of custody, due process is violated only by confessions that are not in fact freely given rather than by mere noncompliance with prophylactic rules.”  Wolfe, 917 S.W.2d at 282 (citation omitted).

            Mason’s contention that his interview was “the functional equivalent of custodial interrogation” conflates two related issues.  Article 38.22 and Miranda apply only to custodial settings.  They apply when a law enforcement officer is engaged in the actual interrogation of a person in custody or uses words or conduct which constitute “the functional equivalent of interrogation.”  See Innis, 446 U.S. at 300-301, 100 S. Ct. at 1689-90; Moran, 213 S.W.3d at 922-23.  An officer engages in “the functional equivalent of interrogation” when he uses words or conduct which he should know are reasonably likely to elicit an incriminating response.  See Innis, 446 U.S. at 301, 100 S. Ct. at 1689-90; Moran, 213 S.W.3d at 922-23.  There is no comparable legal status known as “the functional equivalent of custody.”

            Here, the State does not argue that Deputy Head was not interrogating Mason.  Rather, the State argues that Mason was not in custody.  The Court of Criminal Appeals has identified at least four scenarios in which a person may be considered to be in custody for purposes of the Fifth Amendment:

(1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that 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) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) (citing Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)); accord Miller, 196 S.W.3d at 264-65; Rodriguez v. State, 191 S.W.3d 428, 441 (Tex. App.—Corpus Christi 2006, pet. ref’d).

            Regarding the first three scenarios, “the restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention.”  Dowthitt, 931 S.W.2d at 255 (citing Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528-29, 128 L. Ed. 2d 293 (1994)); accord Miller, 196 S.W.3d at 265; Rodriguez, 191 S.W.3d at 441.

            Mason argues that four circumstances of the encounter collectively demonstrate that a reasonable person would have believed that his freedom of movement was significantly restricted (the third Dowthitt scenario): (1) the length of the encounter; (2) the fact that the video interrogation room was in the middle of the jail and not generally accessible to the public; (3) that he was a suspect before the interrogation began; and (4) that a deputy testified that he probably would not have allowed Mason to call a psychiatrist during the interrogation if Mason had asked to.

            The trial court found that the statement was “non-custodial.”  The only disputed factual issue concerning Mason’s interrogation is whether he told the officers that he wanted to speak to his psychologist before waiving his rights and making a recorded statement. This dispute comes from the following portion of Mason’s interview, which occurred right after he was read his Miranda warnings:

Mason:                       I have a question for ya’ll.

Deputy Aiken:          Yes, sir.

Mason:                       Is there some kind of—is there—um—the psychologist that I went and saw the other day, I’d like to be able to see him again.

Deputy Aiken:          Well, I don’t have any control over that.

DeputyHead:            You probably need to.

            The trial court did not make an express finding concerning whether in this instance Mason was asking to contact his psychologist before proceeding with the interview.  Nevertheless, because the court found that Mason voluntarily waived his rights, we will imply a finding that Mason’s comment regarding his psychologist was not such a request.  See Moran, 213 S.W.3d at 922 (“findings that support the trial court’s ruling will be implied”).  Deputy Aiken’s testimony that he probably would not have allowed Mason to call his psychologist reflects on the deputy’s subjective intent, which has no bearing on the issue of whether Mason was in custody because the deputy did not convey this information to Mason.  See Stansbury, 511 U.S. at 323-24, 114 S. Ct. at 1529-30; Dowthitt, 931 S.W.2d at 254; Miller, 196 S.W.3d at 264; Rodriguez, 191 S.W.3d at 440-41.

            The evidence concerning the other three circumstances cited by Mason is uncontroverted.  The length of detention did not convert his encounter with the deputies to a custodial setting.  See Meek v. State, 790 S.W.2d 618, 620-22 (Tex. Crim. App. 1990); Mason v. State, 116 S.W.3d 248, 265 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d); Garza v. State, 34 S.W.3d 591, 596-98 (Tex. App.—San Antonio 2000, pet. ref’d).  The location of the interrogation room did not either.  See Garza, 34 S.W.3d at 596-98 (suspect “interviewed in a small room with the door closed for over five hours”).  Nor did the fact that Mason was the focus of the investigation make the encounter custodial.  See Meek, 790 S.W.2d at 621; Miller, 196 S.W.3d at 264; Garza, 34 S.W.3d at 597-98.

            Looking at the totality of the circumstances, Mason came to the sheriff’s department of his own accord.  The deputies advised Mason more than once of his Miranda rights.  Mason indicated that he understood those rights and expressly waived them.  At the conclusion of the interview, Mason was permitted to leave, and he was not arrested until several months later.  Under these circumstances, we cannot say that the court abused its discretion by finding that Mason was not in custody during this encounter.  See Garza, 34 S.W.3d at 597-98.

            Mason also contends that, even if he was not in custody, his statement was involuntary under the Due Process Clause because it was not freely given as a result of coercion, improper influences, or incompetency.  See Wolfe, 917 S.W.2d at 282; Miller, 196 S.W.3d at 266; Dawson, 75 S.W.3d at 535.  However, “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”  Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473 (1986).  Thus, evidence of intoxication is irrelevant to the voluntariness inquiry absent evidence of “police coercion or other official over-reaching.”  Perry v. State, 158 S.W.3d 438, 446 (Tex. Crim. App. 2004).  In the same way, evidence of Mason’s mental health status is irrelevant without evidence of coercion or over-reaching on the part of the deputies.

            Here, even assuming Mason presented evidence that he was experiencing adverse mental health symptoms when he gave the statement to the deputies, the record contains no evidence of coercion or over-reaching.  See id.  Thus, his statement was not involuntary under the Due Process Clause.  Accordingly, we overrule Mason’s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 8, 2007

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[1]               Mason had been arrested several months earlier for criminal trespass on the property of the complainant’s family.  Deputy Head was investigating the solicitation complaint then as well.  At that time, Mason denied soliciting the complainant.

Tex. R. App. P.

44.2(b); Burnett v. State, 88 S.W.3d 633, 637 (Tex. Crim. App. 2002); Valenti, 49 S.W.3d at 598; Fowler v. State, 958 S.W.2d 853, 865 (Tex. App.—Waco 1997), aff’d, 991 S.W.2d 258 (Tex. Crim. App. 1999).

      The essential purpose of the indictment is to provide an accused notice of the allegations against him. See Curry, 30 S.W.3d at 398. In this case, the original indictment put Dawson on notice that the State would attempt to prove that he shot Davis with a .25 caliber pistol. The State notified Dawson by pretrial motion that it intended to amend this allegation. The court granted the State’s motion nineteen days before trial at the conclusion of a hearing in which Dawson’s counsel participated. When Dawson’s counsel objected to the attempted amendment to the indictment on the first day of trial, counsel conceded in a hearing outside the presence of the jury that he was prepared to proceed on the amended indictment and had been preparing to proceed in that manner since the date the trial court granted the motion to amend.

      In addition, we will conclude below that the evidence is factually sufficient to support the non-abandoned allegations of the original indictment.

      For the foregoing reasons, we conclude that Dawson’s substantial rights were not affected by the amendment of the indictment. See Tex. R. App. P. 44.2(b); Valenti, 49 S.W.3d at 598-99; Westfall, 10 S.W.3d at 91. Thus, we conclude that his second issue is without merit.

FACTUAL SUFFICIENCY

      Dawson claims in his first issue that the evidence is factually insufficient to establish that he shot Davis “in the groin” with a “.25 caliber pistol” as originally alleged in the indictment.

      When the trial court has allowed an improper amendment and the defendant challenges the sufficiency of the evidence to support the conviction, we measure the sufficiency of the evidence against the indictment as it existed before the amendment. Curry, 30 S.W.3d at 404; Garza v. State, 50 S.W.3d 559, 565 (Tex. App.—Houston [1st Dist.] 2001, no pet.); Westfall, 10 S.W.3d at 91.

      We have already determined that the deletion of the phrase “in the groin” from the indictment was an abandonment of surplusage rather than an amendment. Accordingly, we will not review the sufficiency of the evidence to support this properly abandoned allegation.

      In reviewing a challenge to the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We must view all the evidence without the prism of the “in the light most favorable to the prosecution” construct. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We ask “whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).

      We must also remain cognizant of the factfinder’s role and unique position—one that the reviewing court is unable to occupy. Johnson, 23 S.W.3d at 9. The jury determines the credibility of the witnesses and may “believe all, some, or none of the testimony.” Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is the jury that accepts or rejects reasonably equal competing theories of a case. Goodman, 66 S.W.3d at 287. A decision is not manifestly unjust as to the accused merely because the factfinder resolved conflicting views of evidence in favor of the State. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).

      Davis testified that Dawson shot him with a “.25 caliber pistol.” Dawson’s counsel cross-examined Davis about his knowledge of firearms. Davis responded that he knew it was a .25 caliber weapon because he had seen it once before.

      Dawson avers that the State should have produced expert testimony to establish what caliber the pistol was. Thus, he argues that Davis’s testimony, “standing alone, is factually too weak to support [the contested allegation].” Goodman, 66 S.W.3d at 285 (quoting Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 366 (1960)). However, a lay witness may provide his opinion regarding any fact of consequence if “the witness has personal knowledge of the events on which his opinion is based and that this opinion is ‘rationally based on that knowledge.’” Webster v. State, 26 S.W.3d 717, 724 (Tex. App.—Waco 2000, pet. ref’d) (quoting Fairow v. State, 943 S.W.2d 895, 898 (Tex. Crim. App. 1997)). Applying this standard, we conclude that Davis was qualified to provide lay opinion testimony regarding the caliber of Dawson’s weapon based on his prior familiarity with the weapon. Thus, we hold that the State’s evidence regarding the caliber of Dawson’s weapon is not “so obviously weak as to undermine confidence in the [verdict].” See Johnson, 23 S.W.3d at 11. Accordingly, Dawson’s first issue is without merit.

INEFFECTIVE ASSISTANCE

      Dawson contends in his third issue that he received ineffective assistance of counsel at trial because his attorney failed to object when the prosecutor questioned a detective about Dawson’s failure to discuss his involvement in the shooting with the police, because his attorney inquired further into this subject on cross-examination, and because his attorney failed to object to the State’s closing argument on this issue.

      Dawson’s counsel was critical of the investigation on several fronts throughout his cross-examination of Detective Wetterman. He asked Wetterman whether he tried to discuss the incident with Dawson before obtaining the arrest warrant. Wetterman responded that he was never able to do so.

      The prosecutor asked whether Dawson had ever contacted the police about the incident. Wetterman responded that Dawson never did and added that Dawson “wasn’t talking” when arrested. Dawson’s counsel did not object to this line of questioning.

      Dawson’s counsel confirmed through Wetterman that Dawson was merely exercising his constitutional right to remain silent after arrest.

      At argument, the prosecutor characterized the discussion regarding Dawson’s silence as follows:

Now on his cross-examination of James Wetterman, Mr. Karels said well, did you seek Anthony Dawson and ask him what his side of the story was? Then when Mr. Wetterman said they arrested him, oh, but he was invoking his right to silence. In other words, they are trying to have it both ways.

Dawson’s counsel did not object to this argument.

      It cannot be gainsaid that the State violates the due process rights of a defendant when it offers his post-arrest silence against him at trial. Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976); Griffith v. State, 55 S.W.3d 598, 604-05 (Tex. Crim. App. 2001). However, such a violation must be preserved for appellate review by objection. Saldano v. State, 70 S.W.3d 873, 889 & n.74 (Tex. Crim. App. 2002).

      To prevail on an ineffective assistance claim, an appellant must overcome the strong presumption that counsel rendered reasonably professional assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Ordinarily, this presumption cannot be overcome without evidence in the record of counsel’s reasons for the acts or omissions of which the appellant complains. See Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14; Murray v. State, 24 S.W.3d 881, 891 (Tex. App.—Waco 2000, pet. ref’d). However, a single act or omission on counsel’s part can be so egregious as to constitute ineffective assistance. Thompson, 9 S.W.3d at 813; Scott v. State, 57 S.W.3d 476, 483 (Tex. App.—Waco 2001, pet. ref’d).

      The record in this case is silent as to the reasons counsel acted or failed to act with regard to the instances of which Dawson now complains. However, the record supports the notion that Dawson’s counsel pursued this line of inquiry to attack the thoroughness of Detective Wetterman’s investigation. Accordingly, we conclude that Dawson has failed to overcome the presumption that counsel had sound reasons for acting or failing to act in each instance. Thus, we conclude that his third issue is without merit.

DEADLY WEAPON FINDING

      Dawson argues in his fourth issue that the trial court should not have entered a deadly weapon finding in the judgment because the jury did not find him guilty “as charged.”

      An affirmative deadly weapon finding is proper after a jury trial when: (1) the indictment alleges a deadly weapon was used and the jury finds the defendant guilty as charged in the indictment; (2) the indictment alleges a deadly weapon by design, and the jury finds the defendant guilty as charged in the indictment; or (3) a special issue is submitted to the jury and answered affirmatively. Davis v. State, 897 S.W.2d 791, 793 (Tex. Crim. App. 1995); Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App. 1985); Stewart v. State, 70 S.W.3d 309, 314-15 (Tex. App.—Waco 2002, pet. ref’d).

      Until recently, the jury’s verdict had to expressly find the defendant guilty “as charged” or otherwise refer back to the allegations of the indictment to support an “express” deadly weapon finding under the first and second alternatives noted above. E.g., Davis, 897 S.W.2d at 793-94; Stewart, 70 S.W.3d at 316. However, the Court of Criminal Appeals has recently rejected this approach. Now, the jury will be deemed to have made an express deadly weapon finding under these alternatives if “the jury’s verdict . . . is based upon an application paragraph that explicitly and expressly requires the jury to find that the defendant used a deadly weapon in the commission of the offense.” Lafleur v. State, 106 S.W.3d 91, 98 (Tex. Crim. App. 2003).

      A pistol is a deadly weapon by design. See id. at 95. The application paragraph of the charge required the jury to find that Dawson used a deadly weapon to assault Davis. The jury convicted Dawson of the only offense submitted to it in the charge. Accordingly, the trial court properly entered a deadly weapon finding in the judgment. Id. Thus, Dawson’s fourth issue is without merit.

JUVENILE RECORD

      Dawson claims in his fifth issue that the court abused its discretion by admitting evidence during the punishment phase that he had received deferred prosecution for four offenses as a juvenile.

      A juvenile probation officer testified over objection that Dawson received deferred prosecution for the offenses of resisting arrest, evading arrest, and manufacture and/or delivery of cocaine. He was never adjudicated on any of these offenses.

      Article 37.07, section 3(a)(1) provides:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other 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, regardless of whether he has previously been charged with or finally convicted of the crime or act. A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail. Additionally, notwithstanding Rule 609(d), Texas Rules of Evidence, and subject to Subsection (h), evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of:

            (A) a felony; or

            (B) a misdemeanor punishable by confinement in jail.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2003).

      The language of the statute may lead one to conclude that only juvenile adjudications involving a felony or jailable misdemeanor are admissible at punishment. Nevertheless, Texas courts have consistently held that unadjudicated crimes or bad acts committed by the defendant as a juvenile are admissible during the punishment phase of an adult criminal trial. See Strasser v. State, 81 S.W.3d 468, 469-70 (Tex. App.—Eastland 2002, no pet.); Rodriguez v. State, 975 S.W.2d 667, 687 (Tex. App.—Texarkana 1998, pet. ref’d); see also Pitts v. State, 560 S.W.2d 691, 692 (Tex. Crim. App. [Panel Op.] 1978); Lindsay v. State, 102 S.W.3d 223, 227 (Tex. App.—Houston [14th Dist.] 2003, pet. filed). Other commentators agree with this interpretation of the statute. E.g., Robert O. Dawson, Texas Juvenile Law, 250-51 (5th ed., Tex. Juv. Probation Commn. 2000).

      Accordingly, we conclude that Dawson’s fifth issue is without merit.

      We affirm the judgment.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Gray and

      Justice Vance

      (former Chief Justice Davis not participating)

Affirmed

Opinion delivered and filed December 31, 2003

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