Roger Elroy Slater v. State ( 2008 )

Affirmed and Memorandum Opinion filed April 22, 2008

Affirmed and Memorandum Opinion filed April 22, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-06-00399-CR

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ROGER ELROY SLATER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1031075

M E M O R A N D U M   O P I N I O N

Appellant, Roger Elroy Slater, was indicted on the offense of aggravated robbery.  He filed a pretrial motion to suppress his custodial statement, which the trial court denied.  The jury returned a guilty verdict, and assessed punishment at five years= imprisonment in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant challenges the trial court=s denial of his motion to suppress, and further asserts that he was denied the effective assistance of counsel at trial.  We affirm.

Factual and Procedural Background

On the afternoon of June 10, 2005, Maria Venegas, the 77-year old complainant, was robbed at gunpoint in the parking lot of the Fiesta store located at 4711 Airline in Houston, Texas.  According to the complainant=s testimony, a car driven by a young Hispanic male sped up to her as she exited the store, whereupon a young African-American male approached her from behind and grabbed her purse.  When she struggled, the robber placed the barrel of a gun to the back of her neck and pushed her to the ground, taking her purse.  The robber then got into the car, and the driver immediately sped away.  During the course of the entire robbery, the robber said nothing to the complainant.  The complainant testified that she could not identify the car used in the robbery, but an eyewitness was able to write down what was purportedly its license plate numberCV56 MVLCbefore the suspects fled the scene.

Officer Jon Bonnette of the Houston Police Department, Robbery Division, ultimately received the complainant=s case for investigation.  He learned that a similar purse-snatching had occurred at approximately 2:13 p.m. that same afternoon in the parking lot of the Kroger store located at West 43rd Street and Ella, and reportedly involved a white, two-door Honda with the license plate number V56 MBL.  He also learned that the complainant had been robbed at approximately 2:40 p.m. at the Fiesta locationCwhich was only two miles from the Kroger locationCand that the suspects fled in what was reportedly a white Crown Victoria with the license plate number V56 MVL. Officer Bonnette then ran both license plate numbers; the first came back as a blue Mercedes Benz, while the second came back as a white, two-door Toyota Celica that roughly matched the description of the vehicle involved in both robberies.  The registered owner of the Celica was listed as Zulma E. Cruz.

In the course of his investigation, Officer Bonnette also discovered an offense report dated May 18, 2005, that indicated the Celica had been reported stolen for a period of two hours, and listed the owners as Zulma Cruz and Sam Quintanilla, Cruz=s boyfriend.  Thinking that Quintanilla was most likely the young, Hispanic male described by the complainant as the driver of the car involved in her purse-snatching, Officer Bonnette proceeded to Cruz=s and Quintanilla=s address, which was located only one mile from each of the crime scenes.  But, finding the residence surrounded by a high fence, and not otherwise seeing the Celica anywhere near the residence, Officer Bonnette placed his business card in the mailbox associated with that address.  He and his partner, Officer John French, then circled the block several times in an attempt to locate the Celica.

 Just as they were leaving the area, Officer Bonnette noticed the Celica drive by at a fairly high rate of speed, and immediately requested marked units to conduct a traffic stop.  Once uniformed patrol officers responded, Officer Bonnette stopped the Celica, and its three occupantsCQuintanilla, appellant, and Frank MusaCwere ordered out of the vehicle.  Officer Bonnette then informed Quintanilla, the driver, that he was investigating two robberies reportedly involving the Celica, whereupon Quintanilla admitted his role in the purse-snatchings, and further indicated that he was willing to cooperate in the investigation.  Quintanilla indicated that neither appellant nor Musa had any involvement in the robberies; instead, he informed Officer Bonnette that a man named AGeorge@ actually helped him carry them out.  Quintanilla was subsequently taken into custody for further questioning, while appellant and Musa were arrested and jailed for outstanding municipal warrants.

Officers Bonnette and French investigated the information provided by Quintanilla regarding AGeorge,@ but were unable to locate a suspect by that description.  They then interviewed Quintanilla a second time, who informed them that appellant, his half-brother, was the other participant in the robberies.  Officers Bonnette and French immediately proceeded to the city jail, where appellant was being held, and interviewed him regarding his involvement in the robberies.  After being advised of his legal rights and informed as to what Quintanilla had reported to Officers Bonnette and French, appellant admitted his role in the robberies.  Appellant also agreed to provide a videotaped statement detailing his account of the robberies.

On July 28, 2005, appellant was indicted on the offense of aggravated robbery.  He pleaded not guilty, and filed a pretrial motion to suppress his videotaped custodial statement.  After conducting a hearing, the trial court denied the motion to suppress.  The jury returned a guilty verdict, and assessed punishment at five years= imprisonment in the Texas Department of Criminal Justice, Institutional Division.  The trial court sentenced appellant and entered judgment in accordance with the jury=s verdict.  This appeal followed.

Issues on Appeal

In two issues, appellant challenges his conviction for aggravated robbery.  In his first issue, appellant contends that the trial court erred in denying the motion to suppress his custodial statement, as it allegedly was induced by promises in violation of the Fifth Amendment of the United States Constitution.  Specifically, appellant asserts that, before he made his videotaped statement (1) he was promised by Officer Bonnette that if he confessed, he would be released in one or two days; and (2) he was told by Officers Bonnette and French that the District Attorney would be lenient with him if he confessed.  Appellant argues that these promises rendered his custodial statement involuntary, and the trial court was therefore required to grant his motion to suppress.

In his second issue, appellant contends that he was denied the effective assistance of counsel at trial, in violation of his rights under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution.  Specifically, he argues that his trial counsel made Aserious errors,@ which effectively deprived him of a fair trial, in three areas: (1) failure to assert Confrontation Clause objections to the admissibility of Quintanilla=s custodial statements incriminating himself and appellant; (2) failure to assert hearsay objections and Confrontation Clause objections to testimony given by officers at trial about the extraneous robbery; and (3) eliciting testimony from Officer Bonnette about the gun allegedly used to rob the complainant.  We address appellant=s issues in the order he has presented them.

Analysis of Appellant=s Issues

I.        The Trial Court Did Not Err In Denying Appellant=s Motion to Suppress.

In his first issue, appellant contends that the trial court erred in denying his motion to suppress his custodial statement because the statement was given involuntarily.  Appellant argues that the statement was involuntary because it was induced by promises in violation of the Fifth Amendment of the United States Constitution.^[1]

A.      The Trial Court is the Exclusive Judge of the Credibility of Witnesses at a Suppression Hearing.

We review a trial court=s denial of a motion to suppress evidence under an abuse-of- discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).  At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. See Garza v. State, 213 S.W.3d 338, 346 (Tex. Crim. App. 2007); Mason v. State, 116 S.W.3d 248, 256 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).  We therefore afford almost total deference to a trial court=s determination of historical facts supported by the record, especially when the trial court=s findings are based on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (quoting Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)).   We afford the same amount of deference to a trial court=s ruling on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. (quoting Guzman, 955 S.W.2d at 89).  We review de novo those questions not turning on credibility and demeanor. Id. (quoting Guzman, 955 S.W.2d at 89).  We will sustain the trial court=s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villareal, 935 S.W.2d at 138.

When determining whether a confession should have been excluded as a matter of federal constitutional law, we decide whether the confession was voluntary or coerced. Arizona v. Fulminante, 499 U.S. 279, 285B86 (1991); see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding that coercive police activity is a necessary predicate to a finding that a confession is not voluntary).  A confession is coerced if the defendant=s will was overborne by the circumstances surrounding the confession. Dickerson v. United States, 530 U.S. 428, 434 (2000).  To make this determination, we examine the totality of the circumstances surrounding the interrogation, including the characteristics of the accused and the details of the interrogation. Id.; Fulminante, 499 U.S. at 286B88.

B.      We Defer to the Trial Court=s Findings on This Issue.

After the hearing on appellant=s motion to suppress, the trial court entered findings of fact and conclusions of law that included the following: (1) Officer Bonnette did not make appellant any promises in order to induce him to give a statement; (2) no officer told appellant that, if he confessed to committing the robbery, he might be able to go home in a day or two; (3) no officer told appellant that if he confessed the District Attorney would be lenient on him and he could go home; (4) the testimony of Officer Bonnette was true and credible; (5) the testimony of appellant was not true and therefore not credible; and (6) at the time of his videotaped statement, appellant voluntarily waived his rights and voluntarily gave the videotaped statement.  Accordingly, the trial court determined that appellant=s custodial statement was admissible.  However, as noted above, appellant contends that (1) Officer Bonnette falsely promised him that if he confessed to the robbery, he would be released in a day or two; and (2) Officers Bonnette and French told him that the District Attorney would be lenient with him if he confessed.

The only evidence in support of appellant=s contentions is appellant=s testimony at the hearing on his motion to suppress. It is contradicted by that of Officer Bonnette.  No other record evidence supports appellant=s assertions, and no promises or statements regarding leniency appear on the videotape of appellant=s statement. Furthermore, the videotape of appellant=s statement shows that appellant denied he was promised anything in exchange for his statement. Moreover, Officer Bonnette testified that neither he nor Officer French ever made any promises or statements regarding leniency to appellant, and that he never promised appellant anything, never threatened appellant, and did not coerce appellant into making a statement.

Having reviewed the evidence, we hold that appellant cannot demonstrate an abuse of discretion.  The trial court was the sole judge of the credibility of the witnesses, and chose to believe the videotape and the State=s witness and to disbelieve appellant. See Garza, 213 S.W.3d at 346 (stating that, at a hearing on a motion to suppress, the trial judge is the exclusive judge of the credibility of witnesses, and may therefore choose to believe or disbelieve any or all of a witness=s testimony).  Because appellant=s assertion that his Fifth Amendment rights were violated depends on appellant=s credibility, we defer to the trial court=s findings on this issue.  See id. (stating that a reviewing court is not at liberty to disturb any fact finding that is supported by the record); see also Guidry v. State, 9 S.W.3d 133, 143 (Tex. Crim. App. 1999).  We therefore overrule appellant=s first issue.

II.       Appellant Did Not Demonstrate That He Was Denied the Effective Assistance of Counsel at Trial.

In his second issue, appellant contends that he was denied the effective assistance of counsel at trial, in violation of his rights under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Texas Constitution.  Specifically, appellant argues that his trial counsel made several mistakes at the guilt/innocence phase of trial:  (1) failure to assert Confrontation Clause objections to the admissibility of Quintanilla=s custodial statements incriminating himself and appellant; (2) failure to assert hearsay objections and Confrontation Clause objections to testimony by officers at trial regarding the extraneous robbery; and (3) elicitation of  testimony from Officer Bonnette about the gun allegedly used to rob the complainant.  Appellant contends that his trial counsel=s mistakes effectively deprived him of a fair trial, and therefore his conviction should be reversed and a new trial ordered.

A.      The Law Pertaining to Ineffective Assistance of Counsel Claims.

To prevail on an ineffective assistance of counsel claim, whether asserted under the United States Constitution or the Texas Constitution, appellant must show (1) counsel=s performance was deficient; and (2) the deficiency was so prejudicial that it rendered the trial unfair. See Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986) (holding that the Strickland standards apply to ineffective assistance of counsel claims asserted under Article I, Section 10 of the Texas Constitution).  The first element requires a showing that counsel=s representation fell below the objective standard of professional norms. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  The second element has been interpreted to mean that the appellant must show a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.  A Areasonable probability@ is one sufficient to undermine confidence in the outcome. Id.

The determination of effectiveness of counsel must be made on the facts of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979)).  Allegations of ineffectiveness must be Afirmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Id.  There is a strong presumption that counsel=s conduct fell within the wide range of professional assistance. Strickland, 466 U.S. at 689.  Appellant has the burden to rebut this presumption, by a preponderance of the evidence, with evidence illustrating trial counsel=s motives. Green v. State, 191 S.W.3d 888, 894 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)).  Rarely will a reviewing court have a sufficient record on direct appeal to adequately reflect the failings of trial counsel. See Thompson, 9 S.W.3d at 813B14.

B.      Application of Law to the Facts.

1.       Trial Counsel=s Failure to Object.

We do not decide here whether admission of the particular evidence appellant claims should have drawn an objection from trial counsel violated the Confrontation Clause or the Texas Rules of Evidence.  Even if this evidence were inadmissible, appellant has failed to satisfy his burden to show the unreasonableness of his trial counsel=s actions under Strickland. As noted above, appellate review of trial counsel=s representation is highly deferential and presumes that counsel=s actions fell within the wide range of reasonable and professional assistance. Garza, 213 S.W.3d at 348.  If counsel=s reasons for her conduct do not appear in the record and there is at least the possibility that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance of counsel claim on direct appeal. Id. (citing Ortiz v. State, 93 S.W.3d 79, 88B89 (Tex. Crim. App. 2002)).

Counsel=s reasons for her actions or intentions do not appear in the record.  And, contrary to appellant=s contentions, his trial counsel=s conduct could have been part of a reasonable trial strategy.  See id. (concluding that trial counsel=s conduct could have been part of a reasonable trial strategy, where trial counsel failed to object to hearsay testimony that allegedly violated the Confrontation Clause, and trial counsel=s reasons for his actions or intentions did not appear in the record).  Furthermore, isolated failures to object to improper evidence generally do not constitute ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984); Green, 191 S.W.3d at 895.  Without more, we must defer to the decisions of appellant=s trial counsel and deny the relief requested by appellant. See Garza, 213 S.W.3d at 348 (denying appellant=s ineffective assistance of counsel claim, which was asserted on direct appeal, where trial counsel=s reasons for his actions or intentions did not appear in the record, and his conduct could have been part of a reasonable trial strategy); see also Jackson, 877 S.W.2d at 771; Green, 191 S.W.3d at 894.

Therefore, because appellant has failed to bring forward evidence rebutting the presumption that trial counsel=s actions fell within the wide range of reasonable and professional assistance, we are unable to conclude that her performance was deficient on this ground.

2.       Elicitation of Testimony from Officer Bonnette.

Similarly, we cannot conclude that trial counsel=s elicitation of testimony from Officer Bonnette regarding the gun allegedly used to rob the complainant constituted ineffective assistance of counsel.  Appellant asserts that his trial counsel elicited testimony from Officer Bonnette that a Asilver semiautomatic pistol@ was used in the robbery, and that up until the point that  particular testimony was given, the only description that had been given about the gun allegedly used was that it was a pellet or BB-gun.  Appellant argues that, by eliciting this particular testimony, his trial counsel made the State=s case sufficient to prove a first degree felony under section 29.03 of the Texas Penal Code,^[2] rather than a second degree felony under section 29.02 of the Penal Code.^[3]

Appellant=s contention is without merit.  As with trial counsel=s failure to object, neither the reasons for trial counsel=s elicitation of this testimony from Officer Bonnette nor her intentions appear in the record, and on the facts of this case we will not speculate on her reasons or intentions. See Green, 191 S.W.3d at 894 (stating that A[a]n appellate court is not required to speculate on trial counsel=s actions when confronted with a silent record,@ but that holding counsel ineffective is not speculation where Aa silent record clearly indicates no reasonable attorney could have made such trial decisions@).  We overrule appellant=s second issue.

Conclusion

Having overruled both of appellant=s issues on appeal, we affirm the judgment of the trial court.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed April 22, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

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

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^[1]  Appellant does not assert a claim under the Texas Constitution or Texas statutory law.  Therefore, we do not conduct the separate analysis required to determine whether the alleged statements made by Officers Bonnette and French constitute improper inducements under state law. See Muniz v. State, 851 S.W.2d 238, 251B52 (Tex. Crim. App. 1993) (requiring state and federal claims of involuntariness to be argued on separate grounds with separate substantive analysis or argument provided for each ground); see also Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004) ( applying four-prong test to determine whether a promise rendered a confession involuntary pursuant to Article 38.21 of the Texas Code of Criminal Procedure); Herrera v. State, 194 S.W.3d 656, 659B60 (Tex. App.CHouston [14th Dist.] 2006, pet. ref=d) (applying Atotality of the circumstances@ test to claim asserted under federal constitutional law, and four-prong test to claim asserted under state law).

^[2]  Section 29.03 of the Texas Penal Code provides:

(a)        A person commits an offense if he commits robbery as defined in Section 29.02, and he:

            (1)        causes serious bodily injury to another;

(2)        uses or exhibits a deadly weapon; or

(3)        causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:

(A)       65 years of age or older; or

(B)        a disabled person.

(b)        An offense under this section is a felony of the first degree.

(c)        In this section, Adisabled person@ means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

Tex. Penal Code _ 29.03.

^[3]  Section 29.02 of the Texas Penal Code provides:

(a)        A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:

(1)        intentionally, knowingly, or recklessly causes bodily injury to another; or

(2)        intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

(b)        An offense under this section is a felony of the second degree.

Tex. Penal Code _ 29.02.