By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Error to admit statement not obtained in
processing office, but harmless (99-4-09)
On August 30, 1999, the Dallas Court of Appeals held that an oral statement
and the evidence it led to should not have been admitted in appellant’s
capital murder trial, but that doing so was harmless in view of the other
evidence in the case.
99-4-09. Ahmed v. State, UNPUBLISHED, No. 05-97-00874-CR, 1999 WL 669781, 1999
Tex.App.Lexis ___ (Tex.App.—Dallas 8/30/99)[Texas Juvenile Law 286 (4th
Edition 1996)].
Facts: Appellant Reaz Ahmed was indicted for capital murder, certified and tried
as an adult, convicted of the lesser-included offense of murder, and assessed
punishment at eighty-five years' confinement and a $10,000 fine by a jury. In
his first four points of error on appeal from his conviction, appellant
complains that the trial court erred in: failing to suppress his oral statement;
overruling an objection to the jury charge; and overruling an objection to the
State's jury argument. In a fifth point of error, appellant claims that he
received ineffective assistance of counsel.
On December 4, 1996, appellant, a juvenile, was burglarizing a house in his
neighborhood when one of the occupants of the house, an eleven-year-old boy,
came home from school and surprised him. When the boy repeatedly asked appellant
what he was doing there, appellant went into the garage, obtained a length of
air hose, and bound the boy with it. Appellant then left. However, after he
began thinking that the boy would "snitch on him," appellant drove his
father's car into the alley behind the boy's house and went back inside. He told
the still-bound boy, "You're going to snitch on me. You're going to tell on
me." The boy began to beg for his life. Appellant shot the boy three times
with a gun he had stolen from the house. The boy was killed. Appellant then took
a backpack filled with stolen items, including the murder weapon, to the
apartment of a friend's girlfriend, drove his father's car to a parking lot, and
abandoned it. When the decedent's stepfather came home from work about 5:45
p.m., he discovered both the garage door and the door to the house open. Inside,
upon discovering the decedent in the back bedroom he called 911; the police
arrived immediately. Officer Charles Alvin Sims of the Duncanville Police
Department began investigating the crimes late that afternoon. Shelby Tillman,
an eyewitness, told the police that as he was walking home from school on the
date of the murder he saw appellant, with a backpack, walking near the
decedent's house in the yard headed for the back area of the house. Police
determined that the point of entry into the house was a bay window in the back
of the house near the garage area. Pry marks on that window indicated that entry
was forced. A tool used to pry the window open was found underneath the window.
The police found appellant's palm prints on that window.
Appellant lived in a house across the street from the murder scene and was a
friend of decedent's stepfather's older son who, at the time, was in a
rehabilitation center. Appellant's father testified that his wife picked up
appellant at school after he had been released from school early on December 4,
1996. When appellant got home, his parents kicked him out of the house.
Appellant took his father's car and did not come home, but appellant later
telephoned his father. After the telephone call from his son, appellant's father
called the police and the next day he took his son to the police station.
According to the police, appellant's father was "one hundred percent"
cooperative with their investigation and said that his son was "going to
take it like a man." Because appellant's father was present at the police
station and there were two police officers involved in the investigation, the
police chose to talk to the appellant and his father in a nearby room that was
larger than the small designated juvenile processing office. With appellant's
father present, appellant's oral statement was given in the larger undesignated
room, rather than the smaller designated room. The use of the undesignated room
is the basis of the violation of the family code that appellant contends
requires suppression of his oral statement and all fruits flowing therefrom.
At trial, appellant's father admitted testifying at a prior hearing in this case
on January 7, 1996. He denied, however, that his son admitted the crime to him.
When the prosecutor sought to impeach him with his prior testimony by asking if
he had not admitted at the January 7 hearing that his son had confessed to him,
he answered that he did not recall. When asked what his son told the police, he
refused to answer. The trial court instructed him to answer and he still
refused. After the trial court determined that he had conferred with his
attorney, had no legal grounds for refusing to answer, and understood he would
be held in contempt until he answered the question, the trial court excused the
jury and held him in contempt of court. Duncanville Police Officer Robert
Reynolds testified that about 4:00 p.m. on December 5, 1996, Sergeant Cowsert
told him to go to a certain location, an apartment, to recover some property. He
went to that location and, with permission of the apartment owner, recovered a
blue backpack containing certain stolen property, including the murder weapon.
Scott Parmelly, an eighteen-year-old Duncanville High School student, testified
that he saw appellant on December 4, 1996, at about 3:15 or 3:30 p.m. at the
Duncanville Alternative School. He had been put in the alternative school
because he had gotten in trouble at school. When he got out of school that day
between 3:15 and 3:30, he went to his car that was in the parking lot. He saw
appellant's car at the end of the parking lot. Appellant was alone, but Jeremy
Pinkston walked over to him and they talked. Richard Dennis came up to
Parmelly's car window and asked him if he could follow Dennis and others to drop
off appellant's car. Parmelly agreed. A couple of other students from the high
school came up to Parmelly and offered him gas money to give them a ride home.
Parmelly agreed and took them "behind Hollywood Park" in Duncanville.
Appellant and Pinkston followed him in appellant's car. After Parmelly dropped
off the two students, he and Dennis pulled into a gas station and sat in the
car. They were followed to the station by appellant and Pinkston who sat in
appellant's car. After Dennis talked to appellant, Dennis asked Parmelly to do
something which Parmelly refused to do. He and Dennis then followed appellant
and Pinkston to a place known as the "pottery house." When they
arrived at the "pottery house," Parmelly pulled his car in next to
appellant's. Dennis got out of Parmelly's car. Appellant and Pinkston got out of
appellant's car. Parmelly sat in his car. Dennis came over to Parmelly and said
something. In response, Parmelly "popped the trunk." He then saw
appellant "transporting a blue backpack from his trunk to [Parmelly's]
trunk." He shut the trunk, appellant and Pinkston got in Parmelly's car
with him and Dennis, and the four drove back to Duncanville. Parmelly did not
see what was inside the blue bag, but identified a bag in court as the one he
saw transferred to his trunk. Appellant sat in the back seat behind Dennis. The
four then drove to the Falcon Crest Apartments in Duncanville to see one of
Parmelly's friends. When the friend did not come home, appellant asked Parmelly
to take him to a pay telephone to call his brother.
Parmelly took appellant to a Texaco station in Duncanville where appellant got
out and used the telephone. Parmelly sat in his car until appellant's brothers
pulled up on the passenger side of Parmelly's car. Parmelly, Pinkston, and
Dennis remained in the car. Appellant got out and talked to his brothers out of
Parmelly's hearing. Appellant got back in Parmelly's car and his brothers got in
their car. As they were leaving, one of appellant's brothers asked Parmelly
something, to which Parmelly replied, "No." The four drove back to the
Falcon Crest Apartments and sat in the car listening to the radio, waiting for
Parmelly's friend. Appellant and Pinkston were talking in the back seat;
Parmelly and Dennis were in the front seat listening to the radio. At one point
Parmelly turned down the volume of the radio and he heard appellant talking to
Pinkston in the back seat. All he heard appellant say was, "[p]ow, pow, pow,"
and "[t]ears came to my eyes." Parmelly was asked what time he had to
be home and he said 9:30 p.m. He asked Dennis where he needed to take him and
Dennis said to the Plum Tree Apartments. Around 9:00 p.m., Parmelly took
appellant, Dennis, and Pinkston to the Plum Tree Apartments. They got
appellant's blue backpack out of the trunk. The next morning Parmelly went by to
pick up Dennis to go to school and appellant was there. He and Dennis went to
school. He did not know who lived in the Plum Tree apartment. He did not call
the police. He had met appellant only twice before. Duncanville police
investigator Andrew Ainley later came to the school and talked to Parmelly.
The next day, after appellant had a telephone conversation with his father, his
father told him to go to the police. His father telephoned the police station
and spoke with Sims; he asked Sims if he could have two days before surrendering
appellant into police custody. Sims replied, "F--you. I'm not giving you
two minutes much less two days. Your son has already killed one innocent
eleven-year-old and I'm not going to let him stay out so he can kill
another." Appellant's father testified that he told Sims he wanted the two
days to get an attorney. Sims testified that getting an attorney was not
mentioned in that particular conversation, although appellant's father did ask
whether he needed an attorney later that afternoon after he surrendered
appellant to the police. Officer Ainley testified that he saw appellant on
December 4, 1996, around noon at the Duncanville High School. He described the
clothes and shoes appellant had on. He also saw appellant the next day, December
5, 1996, around 5:00 p.m. and appellant was wearing the same clothes and shoes
he was wearing the day before. Ainley also testified about the juvenile
processing office at the Duncanville Police Department. He described the room,
its location within the police department, and its contents and testified that
it was not the room to which appellant was first taken when his father brought
him in. He testified that, prior to March of 1996, however, the room to which
appellant was taken had been used as a juvenile processing office, and that it
was very close to the room currently designated as the juvenile processing
office. Ainley also testified that he was present when witness Shelby Tillman
was shown a photographic spread and "within eight seconds" picked out
appellant as "the guy that was beside [decedent's] house by the tree"
when Tillman was walking home from school on December 4, 1996, the date of the
murder. He testified that appellant was later taken to the juvenile processing
room, where he was fingerprinted, photographed, and processed. When asked why
appellant was not initially taken to the designated juvenile processing room, he
explained that the designated room is small, about eight by eight feet, with a
table in the middle, and could accommodate only three people. Consequently, the
police took him to a multipurpose room, about twelve by sixteen feet, for the
interview because there were four people present, including appellant's father.
The room was used for both juvenile and adult interviews and morning briefings
for the police officers were routinely conducted in this room.
With his father present, appellant was given his Miranda rights. The police had
a written form listing appellant's rights, and by each right there was a block
for appellant to initial in acknowledgment of that particular right. Sims also
read each right to appellant. When Sims read, "You have the right to have a
lawyer present to advise you prior to and during any questioning,"
appellant's father asked, "What do you think about this? Do I need a
lawyer?" Sims answered that was not Sims's decision to make, but rather it
was appellant's father's decision. Appellant's father later testified that he
requested an attorney.
In the interview that followed, appellant orally told how he had burglarized the
house and shot the decedent. He told the police how he had disposed of the
stolen items, including the murder weapon. Appellant did not know the address of
the apartment where he had left the backpack and the murder weapon but, after
the interview, he showed the police how to get to the apartment as they drove
him there. Appellant's father told the officers he had no problem with appellant
going with the officers. Appellant also showed the police where he had left his
father's car.
During trial, the police officers testified, over objection, about appellant's
oral statement. Officer Sims acknowledged that much of the State's evidence in
the case came directly or indirectly from appellant's oral statement. Appellant
argues that without the statement, the only evidence linking appellant to the
crime was the eyewitness who saw appellant on the decedent's lawn and
appellant's palm print on the window.
Held: Affirmed.
Opinion Text: Appellant's first point of error asserts that the trial court
erred in admitting testimony concerning appellant's oral statement because the
statement was obtained in violation of certain Texas Family Code provisions.
Appellant states that he was not taken to a magistrate to receive the warnings
to which he was entitled, he was not taken to a designated juvenile processing
office, and he was not taken to an official designated by the juvenile court.
Appellant raised these issues in a pretrial motion to suppress, which after a
hearing, the trial court denied. He also reurged his motion to suppress during
trial.
The applicable standard for reviewing a trial court's ruling on appellant's
motion to suppress is set out in Guzman v. State, 955 S.W.2d 85, 89
(Tex.Crim.App.1997). In Guzman, the court of criminal appeals held that an abuse
of discretion standard of review does not necessarily apply when we review a
mixed question of law and fact. As a general rule, we afford almost total
deference to a trial court's determination of the historical facts supported by
the record, especially when the trial court's findings turn on an evaluation of
credibility and demeanor. Id. We afford the same amount of deference to the
trial court's ruling on application of law to fact questions if the resolution
of those ultimate questions turns on an evaluation of credibility and demeanor.
Id. However, if the resolution of those ultimate questions turns on an
application of legal standards, we review the determination de novo. See id.
It is undisputed that: (i) appellant was not taken to a magistrate or to a
juvenile officer; (ii) appellant's oral statement was given in an undesignated
room within the police station, not in the designated juvenile processing
office; and (iii) appellant was later processed in the designated juvenile
processing office. The record does not show that appellant ever requested an
attorney but reflects, instead, that appellant waived all his rights. [FN6]
Because no material fact issue was involved in resolving appellant's motion to
suppress, we review the trial court's ruling on the motion de novo. Appellant
first argues that he was not taken before a magistrate to receive his warnings
as required by section 51.09(b)(1) of the family code. See Tex.Fam.Code Ann. §
51.09(b)(1) (Vernon 1996). That section applies, however, only when a child's
statement is written. See id. Appellant's statement was oral, not written.
Because appellant's statement was oral, section 51.09(b)(1) does not apply.
Rather, section 51.09(b)(2) applies. Section 51.09(b)(2) permits the admission
of a child's statement into evidence if:
it be made orally and the child makes a statement of facts or circumstances that
are found to be true, which conduct tends to establish his guilt, such as the
finding of secreted or stolen property, or the instrument with which he states
the offense was committed.
Tex.Fam.Code Ann. s 51.09(b)(2) (Vernon 1996). Because appellant's statement was
oral, the requirement of section 51.09(b)(1) that he be taken before a
magistrate does not apply.
FN6. The evidence is conflicting on whether appellant's father requested an
attorney.
Appellant next argues that he was not taken to a designated juvenile processing
office as required by the family code. See Tex.Fam.Code Ann. § 52.02(a) (Vernon
1996); Tex.Fam.Code Ann. § 52.025(a) (Vernon 1996). Appellant was in fact taken
to a designated juvenile processing office for fingerprinting, photographing,
and processing; however, this was done after his oral statement was given in a
larger undesignated office that was also used for general purposes, including
interviewing adults. Therefore, that office could not be a designated juvenile
processing office. See Tex.Fam.Code Ann. § 52.025(a) (Vernon 1996) (a juvenile
processing office may not be a holding facility for detentions other than
juvenile detentions). The State argues that the police transferred appellant to
the larger office in order to accommodate appellant's father, because the
juvenile processing office was too small to contain more than three people. See
Tex.Fam.Code Ann. § 52.025(c) (Vernon 1996) (a child is entitled to be
accompanied by his parent in a juvenile processing office). The record, however,
reflects that appellant was not initially taken to the juvenile processing
office as the State suggests, but was only taken there for processing after the
oral statement was given. Appellant argues that the provisions of the family
code must be strictly followed and that a statement obtained when police
officers do not comply with the required procedures must be suppressed.
Appellant relies upon Comer v. State, 776 S.W.2d 191 (Tex.Crim.App.1989). We
agree with appellant that the strict requirements of section 52.02(a) of the
family code were violated because the oral statement was not given in a room
designated by the juvenile court as the juvenile processing office. See
Tex.Fam.Code Ann. § 52.02(a) (Vernon 1996).
Article 38.23 of the code of criminal procedure provides that no evidence
obtained in violation of the laws of the State of Texas shall be admitted
against the accused on the trial of any criminal case. See Tex.Code
Crim.Proc.Ann. art. 38.23(a) (Vernon 1998). Consequently, testimony concerning
appellant's oral statement should not have been admitted. Having determined that
error occurred, we must next determine whether the error is reversible error. To
be reversible, error must be harmful to the appellant. Only federal
constitutional error deemed "structural" gives rise to presumptive
harm and is not subject to a harmless error analysis. Cain v. State, 947 S.W.2d
262, 264 (Tex.Crim.App.1997). All other error is subject to the harmless error
rule. See TEX.R.APP.P. 44.2. Because the error involved here is error in the
process of appellant's trial and is not federal constitutional error labeled as
"structural" giving rise to presumptive harm, the error is subject to
a harmless error analysis under rule 44.2 of the Texas Rules of Appellate
Procedure. See TEX.R.APP.P. 44.2.
Rule 44.2 provides one analysis for constitutional error and another for
nonconstitutional error. Because the error here is statutory, nonconstitutional
error, it is subject to analysis under rule 44.2(b) that provides: "Any
other error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded." See Tex.R.App.P. 44.2(b); see also Le v.
State, 993 S.W.2d 650, 656 (Tex.Crim.App.1999) (reh'g filed). A substantial
right is affected when (i) the error had a "substantial and injurious"
effect or influence in determining the jury's verdict or (ii) leaves one in
grave doubt whether it had such an effect. See Montez v. State, 975 S.W.2d 370,
373 (Tex.App.--Dallas 1998, no pet.). We conclude that we must disregard the
error that occurred here because it does not affect a substantial right of
appellant. The evidentiary error here was the admission of appellant's oral
statement. The oral statement was rendered inadmissible only because it was
taken in a larger undesignated room rather than a smaller designated room. The
record fairly reflects that appellant's father was cooperating with the police
in surrendering his son and that the statement was voluntarily given. Moreover,
even excluding appellant's oral statement, sufficient circumstantial evidence
existed to allow a rational factfinder to find appellant guilty beyond a
reasonable doubt. Consequently, we are not left in grave doubt about whether
appellant's oral statement had a "substantial and injurious" effect or
influence in determining the jury's verdict. We conclude that it did not.
Tillman, a schoolmate of the decedent's, testified that, as he was walking past
the decedent's house on his way home from school on the afternoon of the murder,
he saw appellant on the decedent's lawn, walking next to the house. Appellant
had a backpack on. Tillman saw appellant going to the back of the house, to the
garage area, and did not notice anything further. When the police showed Tillman
a photographic lineup, he picked out appellant's photograph in less than eight
seconds. Barbara Jean McIntosh, the decedent's theater arts teacher at the
intermediate school he attended in Duncanville, testified that she saw the
decedent at the school after school let out at 2:45 p.m. The decedent had sought
her out to discuss a problem he was having learning his lines for the lead role
he was to have in a Christmas program. They talked for eight or nine minutes and
then the decedent left headed toward the front door of the school. She
remembered the time was a few minutes before three the afternoon of December 4
because she had a three o'clock meeting and she checked her watch to see if she
was late. Thomas Ekis, an employee of Forensic Consultant Services, investigated
the crime scene at the police officers' request. The decedent's house had a bay
window, made up of three separate window sections, one in front and one on
either side. The front section was open approximately ten and a half inches.
There were pry marks on the window frame, indicating forced entry. On the ground
was a shelf bracket that had evidently been used as the device to pry the window
open. Appellant's palm prints were found, consistently in patterns, with the
left and right palms always together. Palm prints were found on all three window
sections, on the lower part of the glass, where they would be left by one
attempting to push the window up.
The fingerprints of an accused, when shown that they necessarily must have been
made at the time of the offense, are sufficient to sustain a conviction without
further evidence of identification. See Phelps v. State, 594 S.W.2d 434, 435 (Tex.Crim.App.
[Panel Op.] 1980) (burglary conviction). One of the most important factors to be
considered in evaluating the sufficiency of fingerprint evidence is the extent
to which the fingerprinted object was accessible to the defendant. Id. at 436.
If the defendant may have touched the object at some other time, or if the
fingerprinted object was accessible to the public, the fingerprint evidence
might be insufficient. Id. Tillman observed appellant on the decedent's lawn on
the very afternoon of the offense at or near the time the decedent would have
been coming home from school. That observation is some evidence that appellant
left his palm prints on the bay window that afternoon near the time school had
been dismissed. Ekis testified that the house had been broken into and
ransacked, and the point of entry was the bay window, on which appellant's
multiple palm prints were found. The bay window was toward the rear of the
house, not intended to be accessible to casual passersby. The jury could have
concluded that appellant was the person who broke into the house on the
afternoon of the murder; it could have concluded further that appellant
committed the murder.
Additionally, there was Parmelly's testimony. The jury learned that the decedent
had been shot three times, and Parmelly overheard appellant say, "[p]ow,
pow, pow," and "[t]ears came to my eyes." Parmelly overheard
appellant's remarks in the evening immediately following the afternoon of the
murder. The jury could have found that appellant intended the "[p]ow, pow,
pow" to be onomatopoeic of three gunshots. Parmelly's testimony therefore
corroborates the other evidence. And the record does not reflect that the police
were led to question Parmelly on the basis of anything that appellant said.
Significantly, the record does reflect that appellant gave the police Richard
Dennis's name as someone with whom appellant had been the night before. Yet as
far as Parmelly is concerned, the record indicates only that the police came to
his school to interview him, and the police may have been doing no more than
interviewing all of appellant's known acquaintances.
Additionally, the jury heard appellant's father testify that he had previously
testified in this case on January 7, 1996. The jury heard the prosecutor
question him about whether he had admitted at that earlier hearing that his son
had confessed to him and further heard appellant's father refuse to testify, on
pain of contempt, what his son told the police, even when instructed by the
trial court to answer. Although it is true that appellant's father testified
before the jury that he did not recall whether he had admitted at the January 7
hearing that his son had confessed to him, the jury was free to disbelieve him
and conclude that it was a reasonable deduction from the evidence that he had so
testified. The jury also could have reasonably concluded that the only reason
appellant's father would face contempt of court by refusing to answer the
question was because his testimony was detrimental to the appellant.
Moreover, appellant presented no defensive evidence. Certainly a jury verdict on
the basis of unchallenged evidence would not be so against the great weight of
the evidence as to be manifestly unjust or shocking to the conscience. Thus, we
conclude that the remaining evidence, even excluding any evidence of appellant's
oral statement and any evidence derived from it, is sufficient to support the
jury's verdict. We overrule appellant's first point of error.
In his second point of error, appellant argues that the trial court erred in
admitting appellant's oral statement into evidence after appellant's father
invoked appellant's right to counsel. Yet no objection on this ground was
presented to the trial court. To the contrary, appellant argued that he did have
an attorney with him, specifically, his father. Appellant maintained that, when
he realized he was in trouble, he looked to his father for guidance and for
legal assistance. [FN9] A trial objection stating one legal basis may not be
used to support a different legal theory on appeal. Rezac v. State, 782 S.W.2d
869, 870 (Tex.Crim.App.1990). In this case, appellant's theory at trial, that
his father was serving as his attorney, and appellant's assigned error on
appeal, that the trial court erred in admitting testimony of the oral statement
after appellant's father had invoked appellant's right to counsel, are
diametrically opposed. Appellant did nothing to indicate to the trial court that
he wanted any more legal representation than that which his father, acting as
his attorney, was purportedly providing him. Error, therefore, is not preserved;
appellant has waived the complaint that the trial court did not permit appellant
to have counsel when the very person who claims, before this Court, to have
asserted appellant's right to counsel in the trial court was the same person who
informed the trial court that he himself was counsel. We overrule appellant's
second point of error.
FN9. The State contended that appellant had confessed to his father and
attempted to elicit testimony from appellant's father accordingly. Appellant
claimed that his father was acting as his attorney to invoke the attorney-client
privilege, in an attempt to block that testimony. The attempt failed. It could
have failed, however, for no other reason than that the question appellant's
father was compelled to answer (and for which he was held in contempt for not
answering) was what appellant's father overheard appellant tell the police. Any
communication between appellant and the police was obviously not a communication
that appellant could have expected to be held confidential, and the mere
presence of an attorney representing appellant during that communication would
not clothe the communication with the attorney-client privilege. In any case,
appellant's purpose in asserting that his father was his attorney and the
ultimate failure of that purpose are irrelevant; at trial, appellant contended
that he had an attorney during the police interrogation.
In appellant's third point of error, he contends that, when he raised the issue
of the legality of how the police obtained his oral statement, the trial court
erred in refusing his request for a charge that, if the jury found that the oral
statement was obtained illegally, the jury should disregard the oral statement.
See Tex.Code Crim.Proc.Ann. art. 38.23(a) (Vernon Supp.Pamph.1999). Appellant
concedes, however, that reversal is required only if there was "some
harm" to the accused resulting from the error. See Moreno v. State, 916
S.W.2d 654, 657 (Tex.App.--El Paso 1996, pet. ref'd) (suppressing evidence of
cocaine would result in the State's inability to obtain a conviction). We have
already concluded, however, that the evidence was sufficient to sustain
appellant's conviction even without the evidence of appellant's oral statement
or the fruits obtained therefrom. Therefore, appellant has failed to show harm.
We overrule appellant's third point of error.