Kerry Ray Bell v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00118-CR
KERRY RAY BELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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A jury convicted Appellant Kerry Ray Bell of two counts of sexual assault
and one count of indecency with a child and assessed his punishment at
eighteen years’ confinement on each count. The trial court sentenced him
accordingly. Appellant brings eight issues challenging his competence to stand
trial, the admissibility of his videotaped statement, the absence of a jury
instruction regarding the statement, and the admissibility of the testimony of
1
See Tex. R. App. P. 47.4.
Natalie Riggs and A.W. and arguing that the cumulative total of errors constituted
harmful error under the United States Constitution and the Texas Constitution.
Because we hold that the trial court did not err, we affirm the trial court’s
judgment.
Background Facts
The New Horizons home, also referred to as Redbird, in Granbury, Texas,
is a home for individuals with mental retardation. Appellant lived at the home
with five other men, including A.W. Appellant is mentally retarded and suffers
from bipolar disorder, ADD/ADHD, and fetal alcohol syndrome. A.W. is
moderately to severely mentally retarded. In 2008, when A.W. was sixteen, he
made an outcry to Riggs, one of the caregivers at the home, about a sexual
assault by Appellant. Riggs notified her boss, and the police were called.
A female forensic interviewer with the Children’s Advocacy Center in
Granbury attempted to interview A.W., but he was reluctant to speak to her. He
agreed to speak instead to Robert Young, an investigator for the Hood County
District Attorney’s office. After speaking with Young, A.W. was taken to Cook
Children’s Hospital in Fort Worth for a sexual assault examination. He told the
female nurse there that he had ―told the police what happened‖ and answered, ―I
don’t know,‖ to all other questions she asked. The STD tests were negative, and
there was no physical evidence of an assault.
A staff member from Redbird took Appellant to the Hood County District
Attorney’s office for an interview with Young. Young testified that no law
2
enforcement officer or agency had asked that this be done. Young interviewed
Appellant without the staff member being present. Young read Appellant the
Miranda2 warnings, and Appellant agreed to speak with him. In the interview,
Appellant told Young about three different assaults of A.W.: one occasion of
performing oral sex on A.W. and touching A.W.’s penis with his hand and two
different instances of anally penetrating A.W. This interview was videotaped.
The trial court conducted a hearing on Appellant’s motion to suppress his
statement, at which Appellant’s attorney did not put on evidence. The State
offered Appellant’s recorded statement and published the video for the court.
Young testified that he did not threaten Appellant and that Appellant was free to
leave at any time. The trial court found that Appellant’s statement was freely and
voluntarily given and denied his motion to suppress.
At trial, Riggs testified that Appellant was not on the same functioning level
as A.W. and that she did not believe that Appellant should have been in the
home because he functioned at a higher level than the other residents. A.W.
also testified. Using a doll, A.W. identified the male genitals of the doll as
―privates‖ and the doll’s bottom as the ―bo-bo.‖ A.W. testified that Appellant had
touched A.W.’s ―private‖ with his hand. He denied that Appellant had ever
touched his ―bo-bo.‖ The prosecutor asked A.W. if he was sure and if it was hard
to talk about, and he said, ―Yes.‖ When asked if he ―wish[ed] that had never
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
3
happened,‖ A.W. nodded. The prosecutor later asked if anyone had ever
touched ―[A.W.’s] bo-bo so that it hurt,‖ and A.W. answered that Appellant had.
He testified that Appellant had touched him with ―[Appellant’s] private.‖ A.W.
insisted that Appellant never put his mouth on A.W.’s penis.
Appellant’s attorney introduced some of his mental health records, which
indicated that Appellant has an IQ of 66 and an overall age equivalent of eight
years and two months. The attorney did not call any witnesses. No one filed a
motion to determine Appellant’s competence.
Appellant timely appealed.
Competence to Stand Trial
In his first and second issues, Appellant argues that the trial court violated
his federal right to due process and the mandatory provisions of Texas Code of
Criminal Procedure chapter 46B by failing sua sponte to conduct a hearing on
competence once evidence sufficient to raise a bona fide doubt as to his
competence to stand trial became evident. Article 46B.003(b) of the code of
criminal procedure provides that ―[a] defendant is presumed competent to stand
trial and shall be found competent to stand trial unless proved incompetent by a
preponderance of the evidence.‖3 Subsection (a) of the article provides that ―[a]
person is incompetent to stand trial if [he] does not have . . . sufficient present
ability to consult with [his] lawyer with a reasonable degree of rational
3
Tex. Code Crim. Proc. Ann. art. 46B.003(b) (West 2006).
4
understanding[] or [does not have] a rational as well as factual understanding of
the proceedings against [him].‖4
Article 46B.004 of the code of criminal procedure provides in relevant part,
(b) If evidence suggesting the defendant may be incompetent to
stand trial comes to the attention of the court, the court on its own
motion shall suggest that the defendant may be incompetent to
stand trial.
(c) On suggestion that the defendant may be incompetent to stand
trial, the court shall determine by informal inquiry whether there is
some evidence from any source that would support a finding that the
defendant may be incompetent to stand trial.5
As the Texas Court of Criminal Appeals explained in Montoya v. State, bona fide
doubt triggers a trial court’s competence inquiry:
If a trial judge has a bona fide doubt about the competency of the
defendant, he or she shall conduct an informal inquiry to determine if
there is evidence that would support a finding of incompetence. A
bona fide doubt may exist if the defendant exhibits truly bizarre
behavior or has a recent history of severe mental illness or at least
moderate mental retardation.6
Because the record raised concerns in this court regarding Appellant’s
competence to stand trial, we abated this appeal and remanded the cause to the
trial court for an inquiry into Appellant’s competence. The conscientious trial
judge ordered a psychological examination of Appellant. Dr. Barry Norman
reviewed existing records; conducted a clinical interview, mental status
4
Id. art. 46B.003(a).
5
Id. art. 46B.004(b), (c).
6
291 S.W.3d 420, 425 (Tex. Crim. App. 2009).
5
examination, and behaviorial observations; and verbally administered certain
competence-related questions. He did not administer any standard testing to
determine intelligence level or adaptive level but did review existing records. Dr.
Norman reported that, in his opinion, Appellant was competent to stand trial at
the time of trial and competent to stand trial at the time of the assessment.
The trial court then conducted a hearing on Appellant’s competence and
allowed Appellant to present all evidence he desired regarding his competence.
Appellant called trial counsel to testify. Trial counsel had little recollection of
efforts to determine Appellant’s competence. Trial counsel testified that, in his
opinion, Appellant had been competent to stand trial, although trial counsel had
objected that Appellant’s statement was inadmissible because Appellant ―had not
voluntarily or actually intelligently and knowingly waived his rights‖ because of his
―mental deficiency.‖ Trial counsel testified that Appellant was able to converse
with him and that he believed that Appellant understood the charges against him.
In response to questions from the court, trial counsel testified that Appellant was
able to communicate with him with a reasonable degree of rational understanding
and to aid in his defense and that Appellant had a factual as well as a rational
understanding of the charges against him.
Appellant’s trial counsel also testified that at trial he ―was aware that
[Appellant] was mentally deficient[, but trial counsel did not] know [at the
competence hearing] that [he] was specifically aware [during the trial] of . . . the
diagnosis of [Appellant’s] mental condition.‖ Trial counsel also testified that he
6
had read the report from Pecan Valley and that one of his biggest arguments to
the jury had been that Appellant was mentally retarded. Trial counsel also
admitted that it would be in his best interests regarding a claim of ineffective
assistance of counsel for Appellant to be found competent to stand trial.
The trial court has now conducted an inquiry into Appellant’s competence
and has found that Appellant was not incompetent at the time of trial. Although
Appellant challenged the trial court’s prior failure to conduct the inquiry into
competence, he has not challenged the trial court’s determination that he was
competent. We overrule Appellant’s first and second issues as moot.
Admissibility of Appellant’s Statement
In his third and fourth issues, Appellant argues that the trial court violated
his federal right to due process of law as well as article 38.22 of the code of
criminal procedure by denying his motion to suppress his videotaped statement
and by admitting the statement into evidence because the statement was
involuntary.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review.7 In reviewing the trial court’s decision, we do not
engage in our own factual review.8 The trial judge is the sole trier of fact and
7
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
8
Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.).
7
judge of the credibility of the witnesses and the weight to be given their
testimony.9 Therefore, we give almost total deference to the trial court’s rulings
on (1) questions of historical fact, even if the trial court’s determination of those
facts was not based on an evaluation of credibility and demeanor, and
(2) application-of-law-to-fact questions that turn on an evaluation of credibility
and demeanor.10 But when application-of-law-to-fact questions do not turn on
the credibility and demeanor of the witnesses, we review the trial court’s rulings
on those questions de novo.11
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling.12 When the trial court makes explicit fact findings, we determine
whether the evidence, when viewed in the light most favorable to the trial court’s
ruling, supports those fact findings.13 We then review the trial court’s legal ruling
9
Wiede v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by
State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006).
10
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–
09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim.
App. 2002).
11
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607
(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
12
Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818 (Tex.
Crim. App. 2006).
13
Kelly, 204 S.W.3d at 818–19.
8
de novo unless its explicit fact findings that are supported by the record are also
dispositive of the legal ruling.14
The trial court found that
the police had given Appellant ―all of the advice, information and warnings
required‖ by law before questioning him or taking his statement and that
the ―advice, information and warnings‖ complied with the law;
Appellant intelligently and knowingly waived his rights in connection with
his making of the statement; and
Appellant voluntarily made and signed the statement in compliance with
the law.
As Appellant points out, claims of involuntariness under article 38.22 do
not require police overreaching but can involve ―sweeping inquiries into the state
of mind of a criminal defendant.‖15 Appellant also relies on Blackburn v.
Alabama16 generally, as well as other case law, in arguing that an accused
person’s deficient mental condition renders his confession involuntary under
federal law. As this court pointed out in Franks v. State, the question to be
answered in cases in which a defendant may have a diminished mental capacity
is ―whether the accused’s mental impairment is so severe that he was incapable
14
Id. at 818.
15
Oursbourn v. State, 259 S.W.3d 159, 172 (Tex. Crim. App. 2008).
16
361 U.S. 199, 80 S. Ct. 274 (1960).
9
of understanding the meaning and effect of his statement.‖ 17 Mental retardation
does not automatically render a confession involuntary.18
Appellant argues here and argued below that because he was suffering
from mental retardation, he did not knowingly and intelligently waive his rights
when he made the recorded statement. At the hearing on the motion to
suppress, Appellant relied exclusively on the trial court’s awareness that he lived
in a group home for those suffering with mental retardation, that he was on
multiple medications, and that he had been diagnosed with various psychological
ailments, including bipolar disorder. He concedes that he did not offer any
evidence at the hearing on the motion to suppress. The State offered Young’s
testimony.
Employees of the group home transported Appellant to the police
department to be interviewed by the police. Upon entering the interrogation
room, Appellant faced the investigator, who wore a badge and a gun. No
counselor or parent was present during the interrogation, but security guards
were present in the building.
Young read Appellant his Miranda warnings, and afterward, Appellant
agreed to talk to the police. The record also reflects that Appellant was not under
arrest, but had no other place to go. Appellant’s statement was both recorded
17
90 S.W.3d 771, 785 (Tex. App.—Fort Worth 2002, no pet.).
18
Penry v. State, 903 S.W.2d 715, 746 (Tex. Crim. App.), cert. denied, 516
U.S. 977 (1995).
10
and reduced to writing. There is no evidence that he was forced or coerced to
give the statement.
Appellant offered no controverting evidence. Appellant did not meet or
refute the testimony regarding the voluntariness of his statement.
There is no indication that Appellant did not understand the Miranda
warnings and no evidence that he was coerced, that his will was overborne by
the police, or that he did not understand his rights. Based on the record before
us, we hold that the trial court did not err by denying Appellant’s motion to
suppress his statement. The trial court therefore did not abuse its discretion by
admitting the statement.19 We overrule Appellant’s third and fourth issues.
Jury Instruction
In his fifth issue, Appellant argues that the trial court erred by failing to
submit the issue of voluntariness of Appellant’s statement to the jury. Appellant
did not object to the jury charge on that ground. When the evidence raises an
issue of the ―voluntariness‖ of a defendant’s statement under article 38.22, the
trial court must give a general voluntariness instruction under sections six and
seven of that article because it is the ―law applicable to the case,‖ but when the
defendant fails to request this statutorily mandated instruction, the trial court’s
19
See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App.), cert.
denied, 549 U.S. 1056 (2006).
11
failure to include it is reviewed only for egregious harm under Almanza.20
Because there is no evidence that Appellant’s statement was not freely and
voluntarily made, the trial court did not err by omitting the instruction. We
overrule Appellant’s fifth issue.
Testimony of A.W.
In his sixth issue, Appellant argues that the trial court erred by admitting
A.W.’s testimony because he was not competent to testify. Before A.W. testified,
the trial court held a hearing regarding his competence to testify. The trial court
found, based on all the evidence it heard, that A.W. was competent to testify at
trial. Appellant did not object to the admission of A.W.’s testimony below.
Consequently, Appellant has not preserved his complaint.21 In the interest of
justice, we also point out that based on our review of the hearing, there was no
evidence that A.W. was not competent to testify at trial, and the trial court did not
abuse its discretion by admitting his testimony. We overrule Appellant’s sixth
issue.
20
Almanza v. State, 686 S.W.2d 157, 171–72 (Tex. Crim. App. 1985) (op.
on reh’g); see also Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006);
Oursbourn, 259 S.W.3d at 165, 174–82.
21
See Tex. R. App. P. 33.1(a)(1), (2); Mendez v. State, 138 S.W.3d 334,
341 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim.
App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).
12
Testimony of Natalie Riggs
In his seventh issue, Appellant argues that the trial court erred by admitting
Riggs’s testimony because she was not qualified as an expert witness. Appellant
complains that Riggs, a non-expert lay witness, was allowed to testify as an
expert and give an expert opinion that was beyond her training, knowledge, and
expertise. Appellant made only one objection at trial under rule 702. 22 Appellant
did not object to subsequent testimony on the same subject. Consequently,
Appellant did not properly preserve this issue for appellate review.23 In the
interest of justice, we point out that Riggs’s testimony was admissible because,
as the State argues, she testified not as an expert but as a lay witness regarding
her opinions or inferences drawn from what she observed in her experiences as
a caregiver to both A.W. and Appellant.24 We therefore overrule Appellant’s
seventh issue.
Cumulative Error
Having overruled Appellant’s first seven issues, we overrule his eighth
issue, alleging cumulative error, as moot.
22
See Tex. R. Evid. 702 (providing expert witness rule).
23
See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (citing
Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991)); Fuentes v.
State, 991 S.W.2d 267, 273 (Tex. Crim. App.), cert. denied, 528 U.S. 1026
(1999); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998)
(holding erroneous admission of evidence will not require reversal when other
such evidence was received without objection).
24
See Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000).
13
Conclusion
Having overruled Appellant’s eight issues, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
MCCOY, J. concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 2, 2011
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