Stephen Vinez v. State ( 2012 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
STEPHEN VINEZ, §
No. 08-10-00195-CR
Appellant, §
Appeal from the
v. §
437th District Court
§
THE STATE OF TEXAS, of Bexar County, Texas
§
Appellee. (TC# 2007-CR-6925)
§
OPINION
A Bexar County jury found appellant, Stephen Vinez, guilty of manslaughter in the
stabbing death of Edward Todd Lenamon. See TEX. PENAL CODE ANN. § 19.04 (West 2011).
The jury assessed Vinez’s punishment at imprisonment for twenty years and a fine of $10,000.
He now brings four issues before this Court.1 Finding no reversible error, we overrule Vinez’s
issues and affirm the judgment of the trial court.
THE FIRST ISSUE
In his first issue, Vinez argues that the trial court erred, at the guilt stage, in admitting in
evidence an audio-visual recording of him making telephone calls while at a San Antonio police
station. Vinez argues that the recording of the telephone calls, and the trial court’s later admission
of that recording in evidence, violated his Fifth Amendment right to remain silent, his Sixth
Amendment right to counsel, and his rights to remain silent and to counsel under Texas
Constitution article I, § 10.
1
The record reflects that the Texas Supreme Court transferred this case from the Fourth Court of Appeals to this
Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
With respect to this issue, the record reflects the following. On the morning of April 19,
2007, San Antonio police transported Vinez from his apartment to a police station for questioning.
Upon arrival at the police station, the police placed Vinez in an interview room and informed him
that he was in custody and not free to leave. They then Mirandized2 him and questioned him
about the offense of which he was later convicted. The questioning was recorded audio-visually,
although the police did not tell that to Vinez.3 After the police questioned him for some time, he
asked to use the police station telephone to call an attorney. The police then ceased the
questioning and left the interview room, but they did not turn off the audio-visual recorder. Vinez
proceeded to make several telephone calls to family and friends, none of whom was an attorney,
seeking advice and assistance. During the calls, Vinez made certain statements that could be
considered incriminating.
A trial court’s ruling admitting or excluding evidence is reviewed on appeal for abuse of
discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex.Crim.App. 2008). In other words, the
trial court’s ruling will be upheld if it is reasonably supported by the record and is correct under
any theory of law applicable to the case. Id.
We turn first to Vinez’s claim under the Sixth Amendment. The Sixth Amendment to the
United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence.” This right to counsel applies in all
state criminal prosecutions in which the defendant is accused of a felony. Gideon v. Wainwright,
2
Under Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), law enforcement officials, before questioning suspects in
custody, must inform them, in some manner, that: (1) they have the right to remain silent; (2) their statements may be
used against them at trial; (3) they have the right to the presence of an attorney during questioning; and (4) if they
cannot afford an attorney, one will be appointed for them. See also TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2
(West 2005).
3
The trial court heard evidence that there were signs posted at the police station warning persons that interviews
were subject to being recorded, but there was no evidence that Vinez saw those signs or that he could read them.
2
372 U.S. 335, 339, 342 (1963). This right of the “accused” to counsel, however, is limited by its
terms: it does not attach until a prosecution is commenced. Rothgery v. Gillespie County, 554
U.S. 191, 198 (2008). A prosecution commences when adversary judicial proceedings begin,
whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Id.
Vinez made the telephone calls in question while the police were still investigating the
offense, i.e., at a point before adversary judicial proceedings began. Therefore, Vinez’s Sixth
Amendment right to counsel had not yet attached, and thus the audio-visual recording of the
telephone calls, and the trial court’s later admission of that recording in evidence, did not violate
Vinez’s Sixth Amendment right.
We turn next to Vinez’s claims under the Fifth Amendment and under Texas Constitution
article I, § 10. Our examination of Vinez’s appellate brief reveals that he has provided no
argument or authority with respect to these constitutional provisions. Therefore, these claims are
inadequately briefed and present nothing for our review. Robinson v. State, 851 S.W.2d 216, 222
n.4 (Tex.Crim.App. 1991); TEX. R. APP. P. 38.1(i).
In summary, we discern no abuse of discretion on the part of the trial court in its admission
of the audio-visual recording in question. We overrule Vinez’s first issue.
THE SECOND ISSUE
In his second issue, Vinez argues again that the trial court erred, at the guilt stage, in
admitting in evidence the audio-visual recording of him making telephone calls at the San Antonio
police station. Vinez argues that the recording was inadmissible because the police obtained it in
violation of Texas Penal Code section 16.02(b)(1). See TEX. CODE CRIM. PROC. ANN. art.
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38.23(a) (West 2005) (Texas exclusionary rule). Section 16.02(b)(1) provides that a person
commits an offense if he intentionally intercepts an oral communication uttered by a person
exhibiting an expectation that the communication is not subject to interception under
circumstances justifying that expectation.
As we noted previously, the record reflects that Vinez made the telephone calls while in
police custody and while in an interview room at a police station. There was no evidence that the
police told Vinez that he had privacy, nor was there any evidence that the police even closed the
door to the interview room when they left following the interrogation. In our view, these
circumstances did not justify an expectation that Vinez’s oral communications were not subject to
police interception. See State v. Scheineman, 77 S.W.3d 810, 812-13 (Tex.Crim.App. 2002)
(arrestee, in custody in county law enforcement building and lacking any oral assurance of
privacy, had no reasonable expectation of privacy); Cortez v. State, 240 S.W.3d 372, 382-83
(Tex.App.--Austin 2007, no pet.) (juvenile arrestee, in custody in police interview room and
lacking any oral assurance of privacy, had no reasonable expectation of privacy when making
telephone call).
In summary, we again discern no abuse of discretion on the part of the trial court in its
admission of the audio-visual recording in question. We overrule Vinez’s second issue.
THE THIRD ISSUE
In his third issue, Vinez argues that the trial court erred, at the guilt stage, in refusing to
allow him to call Lessman Hernandez to the stand. According to Vinez, Hernandez would have
testified that he (i.e., Hernandez) and the victim, Lenamon, had once been in a romantic
relationship, that they lived together for approximately a year, and that during that year Lenamon
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assaulted him on several occasions. Vinez argues that Hernandez’s testimony was admissible
because, among other things, “the State opened the door [to this testimony] with their continuous
assertions that Mr. Vinez was the aggressor . . . .”4 Vinez argues that the trial court’s refusal to
allow him to call Hernandez violated his federal constitutional right to present a defense, his state
constitutional right to present a defense, his right to offer evidence under Texas Rule of Evidence
107, his right to offer evidence under Texas Rule of Evidence 404, and his common-law right to
present evidence to correct a false impression created by the opposing party. Vinez does not cite
the pages in the lengthy reporter’s record where he made these arguments to the trial court or
where the trial court ruled on them.
The right to appellate review is limited by the requirement that our briefing rules be
followed. One such briefing rule is that an issue must cite the pages in the record where the
appellant made the arguments in question and received rulings thereon. TEX. R. APP. P. 38.1(i).
“It is not our obligation to pore through the voluminous record to verify that appellant preserved
his . . . complaint[s] for appellate review.” Russeau v. State, 291 S.W.3d 426, 437
(Tex.Crim.App. 2009). Another briefing rule is that an issue may not be multifarious, i.e., it may
not combine multiple, separable legal theories, as to why the trial court supposedly erred, into a
single issue. Aldrich v. State, 928 S.W.2d 558, 559 n.1 (Tex.Crim.App. 1996). Vinez’s third
issue violates both of these briefing rules and, therefore, presents nothing for our review. We
overrule Vinez’s third issue.
THE FOURTH ISSUE
In his fourth issue, Vinez argues that the trial court erred, at the punishment stage, in
4
Vinez testified at the guilt stage that he accidentally stabbed Lenamon during a confrontation in which Lenamon
lunged at him.
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admitting in evidence hearsay testimony from a police officer concerning uncharged misconduct
on Vinez’s part. Vinez argues that such testimony was inadmissible under Texas Rules of
Evidence 404(b), which concerns the admissibility of evidence of uncharged misconduct, and 802,
which concerns the admissibility of hearsay.
With respect to this issue, the record reflects the following. At the punishment stage, San
Antonio Police Officer Justin Kalk testified that, at approximately 9 p.m. on October 30, 2005, he
was dispatched to the scene of a domestic disturbance involving Vinez and Charles Houston.
When Kalk arrived at the scene, which was an apartment, Houston told Kalk that Vinez “had
threatened him with a knife to his throat.”
Turning first to Vinez’s argument concerning Rule 404(b), we must reject it. Article
37.07, § 3(a)(1), of the Texas Code of Criminal Procedure specifically provides that,
notwithstanding Rule 404, the trial court may admit, at the punishment stage, “evidence of an
extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant . . . .”
Turning next to Vinez’s argument concerning Rule 802, we must reject it, too, because the
record reflects that Vinez made no such argument in the trial court. See TEX. R. APP. P. 33.1(a).
We overrule Vinez’s fourth issue.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
GUADALUPE RIVERA, Justice
February 1, 2012
Before McClure, C.J., Rivera, J., and Antcliff, J.
(Do Not Publish)
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