Ernest Joseph Fontenot v. State

Affirmed and Memorandum Opinion filed April 26, 2007

Affirmed and Memorandum Opinion filed April 26, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-05-01140-CR

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ERNEST JOSEPH FONTENOT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1017374

M E M O R A N D U M   O P I N I O N

Appellant Ernest Joseph Fontenot appeals his conviction for aggravated robbery, asserting that the trial court erred in (1) allowing the State to make an opening statement during the punishment phase of his trial, (2) admitting evidence obtained from a warrantless search of his hotel room, and (3) overruling his objection to an allegedly impermissibly suggestive pretrial identification process.  Because there is no statutory preclusion of opening statements during the punishment phase, we hold the trial court did not err in permitting the State to make such a statement.  We further hold that the trial court did not abuse its discretion by overruling appellant=s evidentiary objection.  Finally, we hold that appellant has not demonstrated that the in-court identification of him by an extraneous offense witness was in any way tainted by an allegedly impermissibly suggestive pretrial identification procedure.  Thus, we affirm the judgment of the trial court.

I.  Factual and Procedural Background

Appellant has not challenged the legal or factual sufficiency of the evidence, we therefore discuss the facts only briefly here and throughout the opinion as necessary to address appellant=s issues.

Around 11:00 p.m. on January 27, 2005, appellant accosted the complainant, a male Rice University graduate student, with a gun outside the complainant=s apartment, demanding the complainant=s money.  He then ordered the complainant to remove his clothing, but, after discovering the complainant lived alone, ordered him to put his clothes back on.  Appellant followed the complainant into his apartment, ordered him to crawl into his bedroom, and again ordered him to remove his clothes.  After binding the complainant=s hands and feet, appellant began rummaging around his apartment.^[1]  At some point thereafter, appellant returned and released the complainant.  Appellant then sexually assaulted the complainant, after which he rebound the complainant=s hands and feet.  After threatening to kill the complainant if he moved and telling him he would be back shortly, appellant left.  The complainant remained still for about ten to fifteen minutes, but then realized appellant was not coming back and managed to free himself from the binding.  He got dressed and quickly went to a nearby apartment to call the police.  After an investigation, appellant was arrested in February 2005.

During his trial, appellant sought to suppress certain evidence obtained by police through a warrantless search of a hotel room he occupied.  He argued that he did not consent to this search.  After a hearing conducted outside the presence of the jury, the trial court found that appellant had consented to the search and admitted this evidence.  A jury found appellant guilty of aggravated robbery and, after hearing extensive evidence regarding extraneous offenses and finding two enhancement paragraphs true, sentenced him to life in prison.

II.  Issues Presented for Review

Appellant presents three issues for our review.  First, he complains that the trial court improperly allowed the State to make an opening statement during the punishment phase of trial.  Second, he contends that the trial court erroneously admitted evidence obtained from appellant=s hotel room because the State failed to present sufficient evidence that his consent was freely and voluntarily given.  Finally, appellant asserts that the trial court erred in overruling his objection to an impermissibly suggestive pre-trial identification procedure.

III.  Analysis

A.        Opening Statements During Punishment Phase

In his first issue, appellant argues that the trial court erred in permitting the State to make an opening statement during the punishment phase of trial because such statements are permitted only during the guilt/innocence phase of trial.^[2]

Although article 36.01 of the Texas Code of Criminal Procedure specifically provides for opening statements and sets forth the order of proceedings for the guilt/innocence portion of trial, that article does not apply to the punishment phase.  See Penry v. State, 903 S.W.2d 715, 760 (Tex. Crim. App. 1995) (per curiam) (holding that the trial court did not err in denying the appellant=s request to make a punishment phase opening statement because the State neither requested nor made an opening statement at his re-trial on punishment).  On the other hand, article 37.07, which establishes procedures for the punishment phase,  is silent regarding opening statements.  See Tex. Code Crim. Proc. Ann. art. 37.07 (Vernon Supp. 2005); cf. Penry, 903 S.W.2d at 760 (noting article 37.071=s silence about opening statements).^[3] Moreover, nothing in Penry indicates that the State is prohibited from presenting an opening statement at the punishment phase.  Finally, appellant has not cited, and we have not found, any case holding that the State is prohibited from presenting an opening statement during the punishment phase of trial^[4] when the same opportunity is provided to the defendant.^[5]

Here, the trial court afforded both the State and appellant the opportunity to present opening statements.  Because article 37.07 does not prohibit such statements at punishment and both parties had the opportunity to present them, we hold the trial court did not err in permitting the parties an opportunity to do so in this case.  Thus, we overrule appellant=s first issue.

B.        Voluntariness of Consent

In his second issue, appellant contends that he did not consent to the search of his hotel room where the inculpatory evidence was found.  Thus, he asserts that the trial court erred in admitting this evidence over his objection. 

We review a trial court=s ruling on a motion to suppress for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc).  At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony.  Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991) (en banc).  The judge may believe or disbelieve any or all of the witnesses=s testimony.  Id.  If the trial court=s fact findings are supported by the record, we may not disturb them unless the trial court clearly abused its discretion.  Id.

In this case, the trial court held a hearing outside the presence of the jury to determine the voluntariness of appellant=s consent to search his hotel room. At this hearing, Sergeant Frank Quinn and retired officer Julie Hardin from the Houston Police Department testified for the State.^[6] Quinn testified that he read appellant his rights and that he was present when appellant signed a written consent form allowing officers to search his storage unit at a storage facility.  According to Quinn, appellant voluntarily consented orally to the search of his hotel room, but subsequently refused to sign another written consent form.  Quinn testified that no promises or threats were made to obtain appellant=s consent to the searches.  Hardin testified that she also advised appellant of his rights before questioning him and obtaining his consent to search.  According to Hardin, appellant voluntarily consented orally to the search of his hotel room after he had already signed the written consent for the search of his storage unit.  She testified that he was unwilling to sign any more papers.  Hardin also stated that appellant was not threatened before he consented to the searches. 

During cross-examination of the officers, appellant pointed out some apparent inconsistencies between the officers= live testimony and the notes made in Hardin=s offense report.  Both officers, however, described a similar sequence of events surrounding appellant=s consent to search his hotel room. Finally, appellant testified that he signed the written consent form authorizing the search of his storage unit, but that he did not consent to the search of his hotel room.

In determining that the evidence obtained from the searches was not inadmissible based on a lack of consent, the trial court found that Aconsent was freely and voluntarily given without any threats, without any promises, without any coercions [sic] after a warning given by two officers.@ Thus, the trial found the officers= testimony more credible than appellant=s testimony.  The trial court was authorized to make this determination and these factual findings are supported by clear and convincing evidence in the record.  Further, appellant does not explain how the trial court=s decision to admit this evidence is arbitrary or unreasonable.  Under these circumstances, we cannot conclude that the trial court abused its discretion.^[7]  We overrule appellant=s second issue.

C.        Pretrial Identification Procedure

In his third issue, appellant complains that the trial court improperly overruled his objection to an allegedly impermissibly suggestive pre-trial identification procedure.  AIn considering the scope of due process rights afforded a defendant with regard to the admission of identification evidence, the United States Supreme Court has held that a pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law.@  Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001).  It is therefore not the pretrial identification procedure itself that denies an accused due process of law, but rather the subsequent use of an in-court identification obtained through an impermissibly suggestive pretrial procedure that implicates an accused=s rights.  See id.

For this reason, determining the admissibility of an in-court identification involves a two-step analysis: (1) whether the pretrial  identification procedure was impermissibly suggestive, and (2) whether that suggestive procedure gave rise to a very substantial likelihood of an irreparable in-court misidentification. Id. This analysis requires an examination of the totality of the circumstances surrounding the identification.  Id.  But Aif the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed >reliable,= reliability [being] the linchpin in determining the admissibility of identification testimony.@  Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999) (citations omitted, internal quotations omitted).

During the punishment phase of appellant=s trial, the trial court conducted an identification hearing outside the presence of the jury, where two extraneous offense witnesses testified regarding their respective pretrial identifications of appellant as the attacker in two extraneous offenses.  Appellant complains that the pretrial identification process described by one of these witnesses was unduly suggestive because he was the only individual to participate in two separate lineups conducted for that witness.  This witness stated that, although she identified appellant and was Afairly sure@ he was her assailant after viewing a video lineup, she requested a live lineup so that she could better hear his voice.  She identified appellant in the live lineup.  According to this witness, at the live lineup, appellant was the only person similar to those she had seen in the video lineup.  But she also stated that she saw appellant=s face during the commission of the offense at her house, and that her identification of appellant was based on her memory from the date of the offense.  At the conclusion of her testimony at the identification hearing, appellant objected to this process, stating, A I would say that it=s unduly suggestive because it=s B because the only person that was in the two lineups that was the same was the defendant.  That=s it.@  The trial court overruled this objection.

We first note that, on appeal, appellant does not contend that this witness=s  in-court identification of him was tainted by an allegedly impermissibly suggestive pretrial identification process, nor does he provide any argument or authority to that effect.  Without such a showing, appellant provides no basis for reversal even if the pretrial identification procedure were impermissibly suggestive.  See Barley v. State, 906 S.W.2d 27, 34 (Tex. Crim. App. 1995) (indicating that an appellant bears the burden to establish that an impermissibly suggestive identification procedure gave rise to a substantial likelihood of misidentification); see also Conner, 67 S.W.3d at 200 (observing that it is the subsequent in-court identification of an accused that implicates due process rights).  Moreover, even where a pretrial identification procedure is impermissibly suggestive, the in‑court testimony of an identification witness will still be admissible as long as the record clearly reveals that the witness=s prior observation of the accused was sufficient to serve as an independent origin for the in‑court identification.  Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983) (en banc).  This witness testified that she (1) saw appellant=s face during the assault and (2) was basing her identification of appellant on her memory from the offense.  Thus, our record establishes that she had an independent foundation for her identification of appellant, and nothing in the record reflects (nor does appellant contend) that her in-court identification of appellant as her attacker was in any way based on the pretrial identification procedures used.

In sum, appellant has not provided this court with any basis from which we may conclude that this witness=s in-court identification was unreliable due to an impermissibly suggestive pretrial identification procedure.  See Ibarra, 11 S.W.3d at 195.  Accordingly, we overrule appellant=s third issue.

Having overruled each of appellant=s issues, we affirm the judgment of the trial court.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed April 26, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

Do Not Publish C TEX. R. App. P. 47.2(b)

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^[1]  Sometime during the course of events that transpired that night, appellant stole several items from the complainant=s apartment, including numerous video games, a video game console, various DVDs, a cell phone, and the complainant=s debit card.

^[2]  Appellant objected to the State making an=s opening statement at the commencement of the punishment phase, but the trial court overruled his objection and permitted the State to make an opening statement limited to what the State expected the evidence during the punishment phase to show the jury.

^[3]  See also Garcia v. State, No. 71417, 2003 WL 22669744, at *1 (Tex. Crim. App. Nov. 12, 2003) (not designated for publication) (holding that a trial court did not err in permitting the State to make an opening statement during the punishment phase of a capital case and noting that articles 37.07 (at issue here), 37.071 (at issue in Penry), and 37.0711 (at issue in Garcia) are all similarly silent on the issue of opening statements at punishment), cert. denied, 543 U.S. 855, 125 S.Ct. 267,160 L.Ed. 2d 91(2004). 

^[4]  The cases appellant cites in support of his argument have no application here because those cases  involve the trial court=s denial of a defendant=s request to present an opening statement.  See Penry, 903 S.W.2d at 760; Love v. State, 69 S.W.3d 678, 680 (Tex. App.CTexarkana 2002, pet. ref=d).  But cf. Garcia, 2003 WL 22669744, at *1 (indicating that opening statements are permissible during the punishment phase of a capital case because the statutory procedures relating to the punishment phase do not prohibit them).

^[5]  When the trial court asked appellant if he wanted to make an opening statement, appellant=s attorney replied, ASince I don=t believe we have a right to make an opening statement, I will not make an opening statement, Your Honor.@  Thus, this case does not present a situation where the defendant was denied the opportunity to give an opening statement after the State had done so.  Cf. Robles v. State, 104 S.W.3d 649,652 (Tex. App.CHouston [1st Dist.] 2003, no pet.) (holding it was error to deny the defense an opportunity to give an opening statement after the State=s opening argument); Arriaga v. State, 804 S.W.2d 271, 272S734 (Tex. App.CSan Antonio 1991, pet. ref=d) (same); Twine v. State, 929 S.W.2d 685, 686S87 (Tex. App.CEastland 1996), pet. dism=d, improvidently granted, 970 S.W.2d 18 (Tex. Crim. App. 1998) (same). 

^[6]  Hardin was the officer who actually questioned appellant and obtained his consent.  Quinn was one of the officers involved in the subsequent search who was present when appellant consented.

^[7]  Moreover, appellant does not provide any argument or authority in his brief regarding how the trial court=s admission of this evidence caused him any harm.  See Tex. R. App. P. 44.2.