                                                                                         PD-0795-15
                                                                      COURT OF CRIMINAL APPEALS
                                                                                      AUSTIN, TEXAS
August 6, 2015                                                        Transmitted 8/5/2015 1:22:53 PM
                                                                       Accepted 8/6/2015 10:40:47 AM
                                                                                       ABEL ACOSTA
                                       PD 0795-15                                              CLERK


                         IN THE COURT OF CRIMINAL APPEALS

                                       OF TEXAS
                 _______________________________________________

                                   CARL LEE SMITH,
                                      Appellant,

                                           v.

                               THE STATE OF TEXAS,
                                     Appellee.
                 _______________________________________________

                      On Petition for Discretionary Review from the
                    Fourteenth Court of Appeals in No. 14-13-00595-CR
                     affirming the conviction in cause number 1247979,
                   From the 351st District Court of Harris County, Texas
                 _______________________________________________

                   APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 _______________________________________________

        ORAL ARGUMENT NOT REQUESTED                   ALEXANDER BUNIN
                                                      Chief Public Defender
                                                      Harris County, Texas

                                                      JANI MASELLI WOOD
                                                      Assistant Public Defender
                                                      Harris County, Texas
                                                      TBN. 00791195
                                                      1201 Franklin Street, 13th Floor
                                                      Houston, Texas 77002
                                                      Phone: (713) 368-0016
                                                      Fax: (713) 368-9278

                                                      Counsel for Appellant
                                                      July 30, 2015
                IDENTITY OF PARTIES AND COUNSEL

APPELLANT:                    Mr. Carl Lee Smith
                              TDCJ# 1868764
                              Allred Unit
                              2101 FM 369 North
                              Iowa Park, TX 76367


TRIAL PROSECUTORS:            Merry Katherine McDaniel
                              Allison Baimbridge
APPELLATE PROSECUTOR:         Mr. Eric Kugler
                              Assistant District Attorneys
                              Harris County, Texas
                              1201 Franklin, 6th Floor
                              Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:     Charles A. Brown
                              708 Main Street, Suite 790
                              Houston, TX 77002

PRESIDING JUDGE:              Hon. Kent Ellis
JUDGE HEARING CASE            Hon. Mary Lou Keel
                              351st District Court
                              Harris County, Texas
                              1201 Franklin, 14th floor
                              Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL: Mrs. Jani Maselli Wood
                          Assistant Public Defender
                          Harris County, Texas
                          1201 Franklin, 13th Floor
                          Houston, Texas 77002




                               -2-
                                         TABLE OF CONTENTS

Identity of Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                   5

Statement of the Case & Procedural History.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Ground for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

         The warnings under Miranda and 38.22 specifically state that if a
         defendant is in custody “he has the right to have a lawyer present to
         advise him prior to and during any questioning” and “if he is unable to
         employ a lawyer, he has the right to have a lawyer appointed to advise
         him prior to and during any questioning.” Mr. Smith was advised of his
         rights and when he questioned whether he had a lawyer, he was told no.
         Did the Court of Appeals err in holding that the rights afforded under
         TEX. CODE CRIM. PROC. ART. 38.22 and 1.051 (i) are not to be weighed
         against an “ambiguous” response?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Reason for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Argument.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Appendix



                                                            -3-
                                          INDEX OF AUTHORITIES
                                                                                                              PAGE
Cases:


Dinkins v. State,
      894 S.W.2d 330 (Tex. Crim. App.1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Edwards v. Arizona,
      451 U.S. 477 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Lucas v. State,
       791 S.W.2d 35 (Tex. Crim. App.1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Pecina v. State,
       361 S.W.3d 68 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Smith v. State,
       14-13-00595-CR, 2015 WL 3751776
       (Tex. App.—Houston [14th Dist.] June 16, 2015, no. pet. h.).. . . . . 5, 20, 21

Statutes and Rules:

TEX. CODE CRIM. PROC. ART 1.051 (i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. CODE CRIM. PROC. ART. 38.22.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

TEX. R. APP. P. 66.3(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                          -4-
                    STATEMENT REGARDING ORAL ARGUMENT

       Oral argument is not requested.

                             STATEMENT OF THE CASE

       This is an appeal from the offense of capital murder. (C.R. at 402). See Tex.

Penal Code Ann. § 19.03. Mr. Smith pleaded not guilty and a jury convicted him; he

was sentenced by the court to a mandatory sentence of life without parole because the

State did not seek the death penalty. (C.R. at 402). Timely notice of appeal was filed.

(C.R. at 405).

                    STATEMENT OF THE PROCEDURAL HISTORY

       In an unpublished opinion, the Fourteenth Court of Appeals affirmed Mr.

Smith’s conviction. Smith v. State, 14-13-00595-CR, 2015 WL 3751776, at *13 (Tex.

App.—Houston [14th Dist.] June 16, 2015, no. pet. h.). No motion for rehearing was

filed. After an extension of time, this petition is timely if filed on or before August

17, 2015.




                                          -5-
                        GROUND FOR REVIEW

The warnings under Miranda and 38.22 specifically state that if a
defendant is in custody “he has the right to have a lawyer present to
advise him prior to and during any questioning” and “if he is unable to
employ a lawyer, he has the right to have a lawyer appointed to advise
him prior to and during any questioning.” Mr. Smith was advised of his
rights and when he questioned whether he had a lawyer, he was told no.
Did the Court of Appeals err in holding that the rights afforded under
TEX. CODE CRIM. PROC. ART. 38.22 and 1.051 (i) are not to be weighed
against an “ambiguous” response?

                         REASON FOR REVIEW

The Fourteenth Court of Appeals has decided an important question of
state or federal law in a way that conflicts with the applicable decisions
of the Court of Criminal Appeals or the Supreme Court of the United
States. TEX. R. APP. P. 66.3(c).




                                   -6-
                                  STATEMENT OF FACTS

      Around 1:00 a.m. on January 5th, 2009, Reynaldo Garza was escorting another

employee of the illegal game room where he worked to her car near the corner of

Wallisville and Uvdale Roads in Houston, Texas (IX R.R. at 119, 124). The game

room was located in a small strip shopping center, which also housed a laundromat

and a few other small businesses (Id.). While waiting for his coworker to get in her

car, Mr. Garza heard what he "thought was like firecrackers" coming from behind the

building (IX R.R. at 124-25). There were two bursts of sound, which his coworker

said she believed to be gunshots, rather than firecrackers (IX R.R. at 124). Early the

next morning, the body of Curtis Veazie was found behind the shopping center (IX

R.R. at 88, 138). Mr. Veazie had been living out of his car following a dispute with

his wife, and his car was later found in a utility right-of-way field not far from the

scene (IX R.R. at 69, 97, 112).

      While no one knows for sure what happened that night, the State’s theory of

the case was that a group of three to four men, including Cedrick Robinson (also

known as “Turk”), an unidentified individual known only as “Junior,” allegedly Carl

Lee Smith (known to his friends as “Piper”) and possibly Silvanus René (also known

as “Lo”) had committed the offense in the course of attempting to rob Mr. Veazie

(XII R.R. at 63; X R.R. at 48). Mr. Smith maintained, however, that he was not



                                         -7-
present at the time of the offense and had no part in it (XI R.R. at 185-86). Indeed,

numerous witnesses put Mr. Smith away from the scene-attending a large family

party-on the night of the murder (XI R.R. at 76, 111-12; XII R.R. at 11, 14, 37, 52-53).

Mr. Smith had no knowledge of the crime until hours later (XI R.R. at 187).

      The day after the incident, Mr. Smith received a call from “Junior,” who

informed him of what had happened the night before, and a large group of people,

including Mr. Smith and his girlfriend, went out into the woods to see where Turk had

“ditched” the car, causing a subsequent argument between Mr. Smith and Turk

regarding Turk’s stupidity in leaving the car so close to the Hunter Woods Apartments

(XI R.R. at 187-88; XI R.R. at 115-16).

      Following Mr. Veazie's murder and locating his car, the police focused their

attention on the nearby Hunter Wood apartment complex, in part due to a tip called

in to Crime Stoppers by Cheryl Shaw, who claimed to have seen blood on Turk's

shoes later in the day on January 5th, and had a conversation with Turk in which he

appeared agitated, and may possibly have referred to the crime in some way (X R.R.

at 128-29, 130-31, 133). When the police arrived at the Hunter Wood apartment

complex to investigate the Crime Stoppers tip, Mrs. Shaw initially refused to speak to

the police-she only consented to speak with them after they placed her in handcuffs

and put her into a police car in some apparent pretense of arresting her (X R.R. at



                                          -8-
133-34). She claimed to know who Mr. Smith was by sight, having seen him two or

three times, but did not place him at the apartments or with the other suspects the

night of the murder, and had no direct knowledge of his involvement (X R.R. at

139-40, 147, 151, 154). At the time of her testimony, Mrs. Shaw was in custody at the

Harris County Jail, and had been arrested previously on several theft and forgery

charges (X R.R. at 115-16).

       The only person who placed Mr. Smith at the complex with Turk and Junior

the night of the murder was Mrs. Shaw's daughter, Whitney Shaw (X R.R. at 46, 48).

Whitney Shaw, however, admitted she had only ever seen the man she identified as

Mr. Smith twice, including the night of the incident, and could not place a gun in his

hands during her testimony (X R.R. at 38-39, 50-51, 60-61). Ms. Shaw did not actually

see the man she claims was Mr. Smith get in the car with Turk and Junior-she only

saw him walk out the apartment door at the same time they did, not get in the car or

leave the complex with them (X R.R. at 56, 66). Moreover, Ms. Shaw could not even

be certain that the night she claims to have seen Mr. Smith with Turk and Junior was,

in fact, the night in question:

       MR. BROWN:           So you can't tell this jury that the night before or the

       night of the murder going into the 4th, 5th that you saw this man with




                                           -9-
      Turk and Junior getting dressed taking guns that that’s the night of the

      murder. You don’t know that, do you?

      MS. SHAW: It's not that I don't know I just don't remember.

(X R.R. at 70-71).

      Once the police had turned their attention to Turk, Junior, and Mr. Smith, they

opted to interview Mr. Smith at the Harris County Criminal Courthouse, where they

knew he was making a court appearance on another matter on January 14, 2009 (X

R.R. at 192). When Sergeants Dean Holtke and Wayne Kuhlman of the Harris

County Sheriff's Office Homicide Unit arrived to interrogate Mr. Smith, Mr. Smith

was represented by counsel, attorney Anthony Simmons, on his pending case (XI R.R.

at 39). Knowing that Mr. Smith was represented by counsel, the officers have the

armed bailiff detain Mr. Smith without his counsel's knowledge and without allowing

him to contact his counsel, bring Mr. Smith into a private jury deliberation room,

outside of the public areas of the courthouse, where he is greeted by two armed

Homicide detectives (XI R.R. at 33-34). Mr. Smith was informed he was not in

custody, despite the fact he was detained in a private room with two armed officers

in it and an armed bailiff guarding the door, and despite Sergeant Holtke admitting on

the stand that Mr. Smith was a suspect:




                                          -10-
      MR. BROWN:             When you came and had the bailiff get Mr. Smith to

      come back and join you in the jury room he was a suspect in your mind.

      Is that correct?

      SGT. HOLTKE:           His name had been mentioned.

      MR. BROWN:             The answer to the question is, yes or no, he's a

      suspect or he's not?

      SGT. HOLTKE:           He's suspect.

      MR. BROWN:             So he's not a witness. He's a suspect?

      SGT. HOLTKE:           Right.

(XI R.R. at 33-34).

      Sgt. Holtke recorded his interrogation of Mr. Smith (X R.R. at 193-94; State's

Exhibit 98: Defendant's Statement of 1/14/09, Part 1). At just over six minutes into

the recording, which was played into evidence, Mr. Smith clearly requests his attorney:

      MR. SMITH:             I need a-I need a lawyer, Sir. I-my-can I-can I call

      my lawyer in here?

      SGT. HOLTKE:           'Course you can.

      MR. SMITH:             'Cause I really don't-you know what I'm sayin'-

      SGT. HOLTKE:           'Course you can.




                                             -11-
      MR. SMITH:          I really-I-I know what's up, you know what I'm

      sayin'?

      SGT. HOLTKE:        You do know what's up with this?

      MR. SMITH:          Yes, Sir, you know what I'm sayin', but only thing is,

      you know what I'm sayin', they-you know-

      SGT. HOLTKE:        If you-Dude-If you were there-

      MR. SMITH:          -These people-

      SGT. KUHLMAN:              Hey, hey, hey-

      MR. SMITH:          -These people-

      SGT. HOLTKE:        Hey-

      MR. SMITH:          -These people that I'm dealin' with-

      SGT. KUHLMAN:              Carl, Carl, Carl

      SGT. HOLTKE:        Let him finish-He-he-he's talking

      SGT. KUHLMAN:              OK.

      MR. SMITH:          These people man, you know what I’m sayin’-I’m

      scared of these people, man, you know what I'm sayin'?

(State's Exhibit 98: Defendant's Statement of 1/14/09, Part 1, at 06:03). While Sgt.

Holtke and Sgt. Kuhlman indicate to Mr. Smith that he can get his attorney, they

clearly do their best to keep him talking for as long as they can before actually



                                        -12-
allowing him access to counsel.      Later in the recording, at nine minutes and

twenty-eight seconds, Mr. Smith unequivocally requests access to counsel again:

      MR. SMITH:           Well, know, 'fore I say anything further man, you

      know what I'm sayin’, I just really want to get my lawyer up in here-

      SGT. HOLTKE:         Well, get him.

      MR. SMITH:           -so I can understand what's going on.

      SGT. HOLTKE:         I mean, you know, that's-

      SGT. KUHLMAN:               Well, here-OK, then that's fine, but here's

      what I'm not understanding. I'm trying to follow what you're saying

      here. You're saying you were just told about this?

      MR. SMITH:           Yeah, Turk just came and, you know, we was out

      (unintelligible) when he came and told us.

(State's Exhibit 98: Defendant's Statement of 1/14/09, Part 1, at 09:28). This time,

when Mr. Smith requests access to his attorney before going any further, Sergeant

Kuhlman clearly directs Mr. Smith’s attention away from his request and effectively

ignores it, diving straight into further questioning and again denying Mr. Smith access

to his attorney. It is not until almost half an hour later that Mr. Smith is finally

allowed to speak to his attorney, and only because Mr. Simmons came looking for

him, not because the officers allowed Mr. Smith to go and get him (State's Exhibit 98:



                                         -13-
Defendant's Statement of 1/14/09, Part 1, at 34:02). Following a short conference

with his attorney, Mr. Smith agreed to continue speaking with the officers for the

moment (State's Exhibit 99: Defendant's Statement of 1/14/09, Part 2, at 00:43).

Later that same day, despite clearly knowing Mr. Smith was represented by counsel

and had requested the presence of that counsel, Sergeants Holtke and Kuhlman meet

with Mr. Smith again, this time to show him photographic arrays so he can identify

Turk and Lo to them (State's Exhibit 100: Defendant's Second Statement of 1/14/09,

at 02:48, 04:05).

       No further contact was made with Mr. Smith until December 3rd, 2009, when

Sergeant Holtke and Sergeant Eric Clegg interrogated Mr. Smith again while he was

incarcerated at the Baker Street Jail in Houston, Texas on another offense (XI R.R.

at 11-12). Mr. Smith was taken from his cell by a jail guard and brought to a small

interrogation room, where he was confronted with Sgt. Holtke and Sgt. Clegg (XI R.R.

at 12-13). Mr. Smith was shackled, with his hands cuffed behind his back and leg

irons on his ankles, and felt unable to leave the room without the consent of the

officers and the guard (XI R.R. at 175; State's Exhibit 101: Defendant's Statement of

12/3/09, at 00:28). Sgt. Holtke and Sgt. Clegg openly admitted in the interview that

Mr. Smith was in custody during the interrogation, and Sgt. Holtke duly Mirandized

him, saying: “Since you are in custody, you have leg irons and everything on, I'm going



                                         -14-
to have to read you your warnings, which I’m sure you've heard before.” (State's

Exhibit 101: Defendant's Statement of 12/3/09, at 00:28).

      Following the reading of his rights, Mr. Smith attempted to imitate his

attorney's questions during his first interrogation in the Harris County Courthouse to

end the interview, at which point Sgt. Holtke informed him that he did not have

access to an attorney, despite his professed rights:

      MR. SMITH:           Am I being charged with something?

      SGT. HOLTKE:         No.

      MR. SMITH:           I got a lawyer?

      SGT. HOLTKE:         Nope. You're in custody-you're in custody for

      something completely unrelated to what I want to talk to you about, but

      since you're in custody, I have to lead-read you your legal warnings.

(State's Exhibit 101: Defendant's Statement of 12/3/09, at 01:05). Mr. Smith did not

feel free to leave the room, did not believe that he had the ability to access an

attorney, and clearly did not actually wish to speak to the detectives:

      MR. BROWN:           When you see the door open and the people there

      what do you do?

      MR. SMITH:           I tell him [the guard] I don't want to talk to him [Sgt.

      Holtke].



                                         -15-
      MR. BROWN:           Did they say OK and let you go?

      MR. SMITH:           No, sir. When I said I ain’t want to talk to him he

      told me he couldn't you know do nothing about that, say he was just the

      escort.

      MR. BROWN:           You say certain things at the beginning of your

      interview with Sergeant Holtke; what are you doing?

      MR. SMITH:           Trying to terminate the interrogation.

      MR. BROWN:           Do you ask specific questions?

      MR. SMITH:           Yes, sir.

      MR. BROWN:           Do you remember what they are?

      MR. SMITH:           Yes, sir.

      MR. BROWN:           What were they?

      MR. SMITH:           I asked was I charged with something. I asked did

      I have a warrant and I say why are you talking to me?

      MR. BROWN:           Did they continue talking to you?

      MR. SMITH:           Yes, sir.

(XI R.R. at 179-80). Mr. Smith did everything he knew to do to terminate the

interview, not having a clear knowledge of the law, and not having a full

understanding of his rights, despite the cursory rattling off of his Miranda rights by



                                         -16-
Sgt. Holtke. He did not want to talk to the detectives, and attempted to terminate the

interview the only ways he knew how-by asking if he could have an attorney, and

then, when he was told in his understanding that he could not, attempting to end the

interview by emulating what his attorney said during his first interview to achieve the

same end. Despite Mr. Smith's clear desire to end the interview, the detectives

continued to question Mr. Smith, and elicited a statement from him (XI R.R. at 180).

      In that statement, Mr. Smith claimed to have been present for the robbery, but

left the moment Turk appeared to become aggressively violent with the victim, and

had no part in tying up, beating, or killing Mr. Veazie, indicating Mr. Smith's

repudiation of Turk's actions (State's Exhibit 101: Defendant's Statement of 12/3/09,

at 30:47). At trial, Mr. Smith testified under oath that the only reason he gave this

statement to the detectives-which was the only occasion on which he deviated from

his insistence that he was not involved in the offense-was in an attempt to protect

Junior, whom he viewed as a surrogate brother, from prosecution:

      MR. BROWN:           Did you lie to the police when you were in custody

      in the Harris County Jail 6 or 7 months later in December when Holtke

      and Clegg came to talk to you?

      MR. SMITH:           Yes, sir I did.




                                             -17-
MR. BROWN:           Were you there and present when everybody got

ready to go hit a lick?

MR. SMITH:           No, sir, I wasn't present.

MR. BROWN:           Did you go out behind this washateria and game

room and attack Mr. Veazie?

MR. SMITH:           No, sir I didn't.

MR. BROWN:           Did you even leave the scene before Junior and

Turk?

MR. SMITH:           No, sir I never was there.

MR. BROWN:           Did you have a Glock 40 or whatever it is?

MR. SMITH:           No, sir.

MR. BROWN:           On your person on that day?

MR. SMITH:           No, sir.

MR. BROWN:           Have you ever shot anybody?

MR. SMITH:           No, sir.

MR. BROWN:           Who were you trying to protect?

MR. SMITH:           Junior.

MR. BROWN:           Explain to the Ladies and Gentlemen of the Jury

why you're lying.



                                   -18-
      MR. SMITH:           Junior was my little brother friend and I was trying

      to explain 'cause he looked up to me. I took advantage of that, you

      know. I took advantage of him looking up to me as a big brother 'cause

      he ain't have nobody down here. He from a whole other country, so-

                                         ***

      MR. BROWN:           Why would you lie?

      MR. SMITH:           The reason that I lie was-know what I'm saying you

      know I felt obligated to protecting Junior after he told me what he went

      and did with Turk and I promised him that I be his-you know

      his-basically his alibi for you know what happened.

(XII R.R. at 185-86, 189). Shortly after his second interrogation by police, on January

13, 2010, Mr. Smith was charged with the murder of Curtis Veazie and was formally

indicted by the Grand Jury on February 22, 2010 (I C.R. at 10, 15). He was granted

appointed counsel and was initially represented by Mr. Joseph Salhab (I C.R. at 11).

Mr. Salhab represented Mr. Veazie from January 15, 2010 until the day trial was

initially scheduled to start, on July 27, 2012 (I C.R. at 11, 239; VI R.R. at 24). On

December 15, 2010, Mr. Salhab filed his Motion to Suppress Statements of the

Defendant, which he later followed up with a Memorandum of Law Supporting

Smith's Motion to Suppress Evidence and a Supplemental Memorandum of Law



                                         -19-
Supporting Smith's Motion to Suppress Evidence on September 7 and 16, 2011,

respectively (I C.R. at 63-67, 81-86, 87-91). A hearing was held on Mr. Smith's

Motion to Suppress Statements of the Defendant on September 7, 2011, and was

continued on October 6, 2011 (II R.R. at 4-72; III R.R. at 3-22). On November 21,

2011, Judge Mark Kent Ellis denied the motion and issues his Findings of Fact and

Conclusions of Law relating to the suppression hearing (IV R.R. at 4; I C.R. at 95-98).

                                     Argument

      The warnings under Miranda and 38.22 specifically state that if a
      defendant is in custody “he has the right to have a lawyer present to
      advise him prior to and during any questioning” and “if he is unable to
      employ a lawyer, he has the right to have a lawyer appointed to advise
      him prior to and during any questioning.” Mr. Smith was advised of his
      rights and when he questioned whether he had a lawyer, he was told no.
      Did the Court of Appeals err in holding that the rights afforded under
      TEX. CODE CRIM. PROC. ART. 38.22 and 1.051 (i) are not to be weighed
      against an “ambiguous” response?

      In denying the issue regarding the second, in custody statement, the Court of

Appeals explained:

      Appellant points out that he asked at the beginning of the December
      interview, “I got a lawyer?” He argues this question was a sufficiently
      unambiguous invocation of his right to counsel that the detectives
      should have stopped the interview until he had had an opportunity to
      speak with an attorney. But not every mention of a lawyer by a suspect
      will suffice to invoke the Fifth Amendment right to the presence of
      counsel during questioning. Gobert, 275 S.W.3d at 892. An ambiguous or
      equivocal statement with respect to counsel does not even require
      officers to seek clarification, much less halt their interrogation. Id.
      Whether the mention of a lawyer constitutes a clear invocation of the


                                         -20-
        right to counsel will depend upon the statement itself and the totality of
        the circumstances. Id. The test is an objective one and the suspect must
        articulate his desire to have counsel present sufficiently clearly that a
        reasonable police officer in the circumstances would understand the
        statement to be a request for an attorney. Id. at 892–93.

Smith, 2015 WL 3751776, at *13. The Court of Appeals failed to fully consider the

exchange between Mr. Smith and the interrogating officers:

        MR. SMITH:          I got a lawyer?

        SGT. HOLTKE: Nope. You're in custody-you’re in custody for
        something completely unrelated to what I want to talk to you about, but
        since you’re in custody, I have to lead-read you your legal warnings.

(State's Exhibit 101: Defendant's Statement of 12/3/09, at 01:05).

        Mr. Smith was read his rights which included the right to a lawyer and the right

to have one prior to and during questioning. TEX. CODE CRIM. PROC. ART. 38.22

SEC.   2 (A)(3),(4). Mr. Smith was also entitled to an attorney despite not yet being

charged with capital murder:

        Under 1.051 (i), Mr. Smith was entitled to counsel despite not being charged

with a crime:

               Except as otherwise provided by this subsection, if an indigent
        defendant is entitled to and requests appointed counsel and if adversarial
        judicial proceedings have not been initiated against the defendant, a
        court or the courts' designee authorized under Article 26.04 to appoint
        counsel for indigent defendants in the county shall appoint counsel
        immediately following the expiration of three working days after the
        date on which the court or the courts' designee receives the defendant's
        request for appointment of counsel.


                                           -21-
TEX. CODE CRIM. PROC. ART 1.051 (i).

      This Court has explained the protections under the Fifth Amendment:

      Under Edwards v. Arizona, once a person invokes his right to have
      counsel present during custodial interrogation, a valid waiver of that
      right cannot be established by merely showing that the suspect
      responded to police-initiated interrogation after being advised of his
      rights again. The purpose of the Edwards rule is to “prevent police from
      badgering a defendant into waiving his previously asserted Miranda
      rights.” That prophylactic rule protects the suspect—who has made the
      decision not to speak to law-enforcement officers without his lawyer
      and clearly communicated that decision to the police—from further
      police badgering.

Pecina v. State, 361 S.W.3d 68, 76 (Tex. Crim. App. 2012).

      Once Mr. Smith questioned whether he had a lawyer, all questioning needed

to stop. As the Supreme Court has resolutely held: “We reconfirm these views and,

to lend them substance, emphasize that it is inconsistent with Miranda and its progeny

for the authorities, at their instance, to reinterrogate an accused in custody if he has

clearly asserted his right to counsel.” Edwards v. Arizona, 451 U.S. 477, 485 (1981).

      The right to counsel is considered invoked when the accused indicates that he

wants to speak to an attorney or have an attorney present during questioning. Lucas

v. State, 791 S.W.2d 35, 45 (Tex. Crim. App.1989). The request must “clear and

unambiguous.” Dinkins v. State, 894 S.W.2d 330, 351 (Tex. Crim. App.1995). Clearly,

by telling Mr. Smith he wasn’t entitled to an attorney (despite just having been told he

was entitled to counsel) he wanted an attorney.


                                          -22-
      The semantics and gymnastics utilized by courts to determine there was not

invocation of counsel aside - Mr. Smith asked if he had a lawyer and he was told no.

This Court should grant review to enforce the strictures of Miranda and the Code of

Criminal Procedure.

                               PRAYER FOR RELIEF

      For the reasons states above, Mr. Smith prays that this Court grant his petition

for discretionary review.


                                        Respectfully submitted,
                                        ALEXANDER BUNIN
                                        Chief Public Defender
                                        Harris County Texas

                                        Jani Maselli Wood
                                        _______________________________
                                        JANI J. MASELLI WOOD
                                        Assistant Public Defender
                                        Harris County, Texas
                                        Jani.Maselli@pdo.hctx.net
                                        TBN. 00791195
                                        1201 Franklin Street, 13th Floor
                                        Houston, Texas 77002
                                        Phone: (713) 368-0016
                                        Fax: (713) 368-9278

                                        Attorney for Appellant
                                        Carl Lee Smith




                                        -23-
                             CERTIFICATE OF SERVICE

      Pursuant to Tex. R. App. Proc. 9.5, this certifies that on August 5, 2015, a copy

of the foregoing was emailed to Lisa McMinn, State Prosecuting Attorney, and the

Harris County District Attorney’s Office through texfile.com at the following address:


Eric Kugler
Assistant District Attorney
1201 Franklin Street, 6th Floor
Houston, TX 77002
kugler_eric@dao.hctx.net

Lisa McMinn
Lisa.McMinn@SPA.texas.gov

                                 Jani Maselli Wood
                           _________________________________
                           JANI J. MASELLI WOOD




                                         -24-
                        CERTIFICATE OF COMPLIANCE

       Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this

petition complies with the type-volume limitations of TEX. R. APP. PROC. 9.4(I)(2)(D).

1.     Exclusive of the portions exempted by TEX. R. APP. PROC. 9.4 (I)(1), this

petition contains 4000 words printed in a proportionally spaced typeface.

2.     This petition is printed in a proportionally spaced, serif typeface using

Garamond 14 point font in text and Garamond 14 point font in footnotes produced

by Corel WordPerfect software.

3.     Undersigned counsel understands that a material misrepresentation in

completing this certificate, or circumvention of the type-volume limits in Tex. R. App.

Proc. 9.4(j), may result in the Court's striking this brief and imposing sanctions against

the person who signed it.


                                                Jani Maselli Wood
                                          ____________________________
                                          JANI J. MASELLI WOOD




                                           -25-
                                                                    trial court did not err when it denied his motion for directed
                  2015 WL 3751776                                   verdict. Appellant next argues that the trial court abused its
    Only the Westlaw citation is currently available.               discretion when it admitted into evidence audio statements
                                                                    appellant made to the police in January and December 2009
 SEE TX R RAP RULE 47.2 FOR DESIGNATION AND                         because (1) the January statements were made while appellant
            SIGNING OF OPINIONS.                                    was in custody and without Miranda warnings;1 and (2) the
                                                                    police denied appellant his right to counsel under both the
     DO NOT PUBLISH—TEX. R. APP. P. 47.2(B).                        Fifth and Sixth Amendments. We overrule this issue because
                                                                    appellant was not in custody at the time of the January 2009
                 Court of Appeals of Texas,                         statements, both the January and December statements were
                    Houston (14th Dist.                             voluntary, and appellant was not deprived of his right to
                                                                    counsel during any of his statements.

           Carl Lee Smith, Appellant
                        v.                                          Finally, appellant contends the evidence is legally insufficient
          The State of Texas, Appellee                              to support the amount of court costs assessed against him
NO. 14–13–00595–CR | Memorandum Opinion filed                       because there is no bill of costs in the record. We overrule
                 June 16, 2015                                      this issue because the bill of costs for the exact amount of the
                                                                    costs assessed against appellant found in the record provides
                                                                    an adequate basis for the assessment of court costs against
                                                                    appellant. We therefore affirm the judgment.
On Appeal from the 351st District Court, Harris County,
Texas, Trial Court Cause No. 1247979
                                                                                             Background
Attorneys and Law Firms

Jani J. Maselli Wood, for Carl Lee Smith.
                                                                    A. The complainant's murder
                                                                    Whitney Shaw, one of the principal witnesses at trial,
Eric Kugler, for the State of Texas.
                                                                    provided testimony regarding appellant's conduct before the
Panel consists of Chief Justice Frost and Justices Christopher
                                                                    murder. In January 2009, Whitney lived in the Hunter Wood
and Busby.
                                                                    apartment complex along with her mother, Cheryl Shaw. The
                                                                    complex is in eastern Harris County near the Pine Trails
                                                                    neighborhood. Whitney was dating Darius Bogar. Darius was
                                                                    one of several young men Whitney saw hanging around the
                                                                    Hunter Wood apartments during that time period. These
                MEMORANDUM OPINION
                                                                    young men included Silvanus “Lo” Rene and Cedrick “Turk”
                                                                    Robinson. Whitney also saw appellant, known as Piper,
                                                                    around the Hunter Wood apartments a few times. Lo had two
                                                                    different apartments in the Hunter Wood complex and
                                                                    Whitney, along with many other people, would hang out in
J. Brett Busby, Justice
                                                                    them.
*1 Appellant Carl Lee Smith was convicted of the capital
murder of the complainant Curtis Veazie and sentenced to
                                                                    On the evening of January 4, 2009, Whitney went to Lo's
imprisonment for life without the possibility of parole.
                                                                    apartment to visit Darius. Darius was not there when Whitney
Appellant appeals his conviction, raising four issues.
                                                                    arrived, so she decided to wait for him. While she was
Appellant contends in his first issue that the trial court abused
                                                                    waiting, Whitney saw appellant, Turk, and a male she knew
its discretion when it admitted photographs of the death scene
                                                                    as Junior, putting on dark clothing and getting guns out of a
and autopsy over his objection based on Rule 403 of the
                                                                    closet. Whitney testified that she thought they were getting
Texas Rules of Evidence. We conclude that even if the trial
                                                                    ready to “go hit a lick” or getting ready “to go rob
court abused its discretion when it admitted the challenged
                                                                    somebody.” Whitney testified she saw two guns, one several
photographs, appellant was not harmed by their admission.
                                                                    feet long and the other about a foot long. According to
                                                                    Whitney, the first gun resembled a photograph of an AK–47
                                                                    that she was shown during her trial testimony. The three men
                                                                    left the apartment around 10:00 p.m. or 11:00 p.m.
In his second issue, appellant asserts the trial court erred
when it denied his motion for directed verdict because there
is legally insufficient evidence placing him at the scene of the
                                                                    *2 In January 2009, complainant Curtis Veazie lived in the
crime. Because appellant's statements, which were admitted
                                                                    Pine Trails neighborhood in eastern Harris County. Veazie
into evidence, place appellant at the scene of the crime as part
                                                                    and his wife were having problems at that time, and as a result
of a conspiracy to rob Veazie, we hold the evidence is legally
sufficient to support appellant's conviction and therefore the
Smith v. State, Not Reported in S.W.3d (2015)




Veazie had moved out. Veazie then stayed with his friend            from an unidentified blunt instrument, Veazie's left eyeball
Kenneth Jones in nearby Channelview for a few days.                 was partially out of its socket and his right eyeball was
                                                                    completely out of its socket. There was massive damage to
                                                                    Veazie's head and a lot of blood around his body. An
Veazie worked two jobs and he liked to gamble during his            investigator who processed the crime scene testified that the
spare time. Reynaldo Garza testified that Veazie was a regular      lack of blood on most of Veazie's clothes indicated he was
customer at the eastside game room where Garza worked. The          lying face down on the concrete paving when he was shot.
game room was located in a strip center on Wallisville Road         Shoelaces had been used to bind Veazie's ankles and wrists.
near the intersection with Uvalde. Garza testified that he saw      Investigators also discovered additional shoelaces around his
Veazie, alone, at the game room between 10:00 and 11:30 on          mouth area. Blood spatter had been sprayed on a nearby wall
the evening of January 4. Garza testified that Veazie always        from an impact that occurred near ground level. The forensic
drove an older, white, four-door car.                               pathologist who conducted the autopsy testified that Veazie's
                                                                    death was consistent with more than one assailant.

Garza testified that he left the game room for a while that
evening but he returned to close the game room at about 1:00        *3 While the homicide investigators were still at the scene of
a.m. Garza testified that he was escorting Irma Escobedo,           the murder, other officers discovered Veazie's car abandoned
another employee, to her car when he thought he heard               in a utility right of way near the Pine Trails neighborhood.
firecrackers. Escobedo said they were not firecrackers but          The police found Veazie's wallet on the passenger side of the
gunshots. Garza testified that he heard two shots and he            vehicle. They also found clothes and a pair of sneakers
thought they came from behind the strip center. Escobedo got        without shoelaces in the car's trunk.
in her car and began to drive toward the exit from the strip
center parking lot. Garza testified that he saw a white car
drive out from behind the strip center, pass in front of            B. The investigation
Escobedo's car, and then turn onto Wallisville Road. The next       Cheryl Shaw, Whitney's mother, ran a small store out of her
morning, Garza realized that the white car he had seen driving      apartment in the Hunter Wood apartments. As a result of that
out from behind the strip center was Veazie's. A surveillance       activity, and the fact Whitney was still in high school in 2009,
camera at an auto repair business across the street from the        Cheryl was familiar with many of the people who lived in or
strip center captured the two cars leaving the strip center         hung out at the Hunter Wood apartments. Cheryl testified that
parking lot at approximately 1:40 a.m. on January 5.                she knew Darius and Turk because they went to high school
                                                                    with Whitney. Cheryl was also familiar with Lo. Cheryl
                                                                    testified that around the time of the murder, she saw appellant
That same morning, Sergeant Michael Holtke, a Harris                with Turk and another young man she knew only as Junior.
County Sheriff's Department homicide detective, was                 Cheryl went on to testify that she always saw appellant with
dispatched to the strip center in response to a 9–1–1 call          Turk and Junior. At a point in time after Veazie's murder,
reporting a dead body. Holtke was the lead detective                Turk was standing outside the Shaw apartment when Cheryl
investigating the murder. The manager of a washateria in the        noticed blood on his shoes. After seeing a news report about
same strip center as the game room had called 9–1–1 after an        Veazie's death and an invitation to call Crime Stoppers with
elderly lady searching for cans had discovered a dead body.         any information about the murder, Cheryl called Crime
Veazie's body was lying in the alley behind the strip center.       Stoppers.
There was a gunshot entrance wound in Veazie's left
forehead, and stippling around the wound indicated that the
bullet had been fired from a relatively short distance. The         A large number of Sheriff's Department officers came to the
bullet created an exit wound in front of Veazie's right ear.        Hunter Wood apartments. The officers went door to door
When investigators rolled Veazie's body over, they recovered        looking for people in the apartment complex and they
a bullet along with a sock from under Veazie's face.                eventually came upon Cheryl, who was outside with her dog.
Investigators also found a spent 7.62 x 39mm rifle cartridge        Cheryl was reluctant to talk to the officers because all of the
casing on the ground. Deputy Bradley Bruns, a firearms              people in the complex were outside as a result of the officers'
expert with the Harris County Sheriff's Department, testified       activity. Cheryl suggested the officers act as if they were
the cartridge had been fired from an AK–47 assault rifle.           arresting her so she would have an opportunity to talk to them
                                                                    without it looking suspicious to her neighbors. In response to
                                                                    Cheryl's suggestion, the officers put her in handcuffs and
The autopsy revealed that Veazie had also suffered multiple         placed her in the back of a police car, where she talked to the
blunt-force trauma to his head. As a result of repeated blows       officer. While Cheryl was in the back of the police car, the

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                                                                 -27-
Smith v. State, Not Reported in S.W.3d (2015)




officers cleared out one of Lo's apartments, and she identified
one of the people who came out of the apartment as Turk.
Cheryl later traveled to a nearby Sheriff's Department                   Detective 1: “Course you can.”
substation where she gave a statement to detectives
investigating Veazie's murder.
                                                                         Appellant: “I really-I-I know what's up. You know what I'm
                                                                         sayin'?”
Sergeant Holtke and the other detectives investigating
Veazie's death had learned information about the murder from
people in the area that had caused them to go to the Hunter              Detective 1: “You do know what's up with this?”
Wood apartments on January 8, 2009. Prior to that point in
time, Holtke had not yet heard of appellant, Turk, or Junior.
Once at the Hunter Wood apartments, the officers learned                 Appellant: “Yes, sir, you know what I'm sayin', but only
about apartment units that were occupied by several men. The             thing is, you know what I'm sayin', they you know ...”
officers also heard the names Turk and Lo. The officers
proceeded to clear out what should have been vacant
apartments and Turk was one of the people they cleared out.              Detective 1: “If you, Dude, if you were there ...”
He was arrested for capital murder that day. Holtke then
interviewed Turk on two different occasions. At that point,
Holtke was looking into a second suspect, known only as                  Appellant: “These people ...”
Piper. During the interview with Cheryl at the Sheriffs
Department substation, Cheryl identified Turk in a
photospread and tentatively identified appellant as Piper from           Detective 2: “Hey, hey, hey ...”
one out of a selection of seventeen photographs of people
named Carl Smith.
                                                                         Appellant: “These people ...”

C. Appellant's interviews
Having secured an identification of Piper as appellant, Holtke           Detective 1: “Hey ...”
was able to learn appellant had a court appearance scheduled
on another criminal matter on January 14. Holtke and a
second detective went to the courthouse and asked a bailiff to           Appellant: “These people that I'm dealin' with ...”
talk to appellant and bring him back to a jury room where
they could speak with him. The bailiff brought appellant into
the jury room where the two detectives were waiting.                     Detective 2: “Carl, Carl, Carl.”
Appellant would participate in three recorded interviews that
day.
                                                                         Detective 1: “Let him finish, he, he, he's talking.”

*4 At the beginning of the first interview, the detectives
greeted appellant and told him “you know you are not in                  Detective 2: “Okay.”
custody or anything.” The detectives then said they wanted to
talk to appellant about an event they were investigating. The
detectives then showed appellant a Crime Stoppers flyer                  Appellant: “These people man, you know what I'm sayin',
relating to Veazie's murder as well as a photo of Veazie's               I'm scared of these people, man, you know what I'm
abandoned car. Appellant initially denied having seen either             sayin'?”
Veazie or the car before. The conversation continued until
about six minutes into the interview, when appellant said: “I
need, I need a lawyer, sir. Can I, can I call my lawyer in               Detective 1: “Okay.”
here?” The following dialogue then occurred:

  Detective 1: “Course you can.”                                         Appellant: “They, they, they vicious people man, you know
                                                                         what I'm sayin? They don't play no games, man.”
  Appellant: “Cause I really ... know what I'm sayin'?”

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                                                                  -28-
Smith v. State, Not Reported in S.W.3d (2015)




                                                                    apartments because it would bring the police into the area to
                                                                    investigate. Sergeant Holtke then told appellant: “you're not
Appellant continued talking with the detectives and explained       in handcuffs; we're not taking you anywhere,” but they needed
that the people he was talking about were gang-related and if       appellant to tell them everything Turk had told him about the
he told the police what had happened, he did not want his           murder. Appellant responded that Turk told him that Turk had
name connected with it. With that introduction, appellant told      tied Veazie up so he would not run away, and that Turk had
the detectives that he was visiting his “partner” Lo at the         killed Veazie because he would not stop screaming and
Hunter Wood apartments when Turk came in the apartment              making noise. Appellant said he did not know why Turk
saying he had just killed somebody.                                 picked Veazie because “the dude didn't get nothing. He ain't
                                                                    got no rims on his car. He ain't got nothing. I don't see nothing
                                                                    he could get out of him, this man old. I don't know, man,
Less than a minute later, which was about nine minutes into         probably thought the man had a grip on him or something.
the interview, the following exchange occurred:                     Know what I'm saying?”2

  Appellant: “Well, know, ‘fore I say anything further man,
  you know what I'm sayin’, I really want to get my lawyer          *5 The interview continued and appellant told the detectives
  up in here.”                                                      that in the organization he is part of, “you don't snitch on
                                                                    people.” He went on to explain that he believed in telling the
  Detective 1: “Well, get him.”                                     truth. Appellant then changed his story, eventually telling the
                                                                    detectives that he did not know what Turk was going to do
                                                                    that night. He explained that he and Junior were not with Turk
  Appellant: “So I can understand what's going on.”                 at first. Turk told them he was going to “go hit a lick.” Later,
                                                                    appellant and some other people were in a park by Pine Trails
                                                                    when they heard gunshots and then Turk drove up in a car.
  Detective 1: “I mean, you know, that's ...”                       Appellant got into the passenger seat. Turk continued to
                                                                    drive, but the car did not run well, so they parked it in the spot
                                                                    where the police eventually found it. They then walked to the
  Detective 2: “Well, here, okay, then that's fine, but here's      Hunter Wood apartments. Once back at the apartments, Turk
  what I'm not understanding. I'm trying to follow what             informed them that he had shot a man a short time before. At
  you're saying here. You're saying you were just told about        that point, about ten to twelve people walked back to the car
  this?”                                                            and tried to wipe their fingerprints off the car.


  Appellant: “Yeah, Turk just came and, you know, we was            At this point in the interview, someone entered the jury room
  out and high when he came and told us.”                           and said the attorney is here. Appellant's attorney on another
                                                                    criminal matter then entered the jury room and introduced
                                                                    himself. The attorney invoked appellant's right to silence and
                                                                    asked if they could take a break so he could speak with
Appellant went on to explain that Turk then showed them             appellant. The attorney went on to say that they could
where he had left the murdered man's car. Appellant told the        reconvene after the break and appellant could decide if he
detectives it was the car in the photo they had shown him at        wanted to continue talking with the detectives. The first
the beginning of the interview. At this point, appellant            interview ended at that point, and the detectives left the room.
admitted that he touched the car when he, and numerous
others, went with Turk to look at the car. Appellant denied
that he got inside the car, however. When asked who else had        After appellant had an opportunity to speak with his attorney,
gone with Turk to see the car, appellant admitted that Junior,      the detectives re-entered the room. Holtke resumed recording
his “little partner,” had gone with him. Appellant denied that      and said that appellant's attorney had told them that appellant
Junior had anything to do with the murder. Appellant also           wanted to continue talking with them. During this second
denied knowing Junior's real name.                                  interview, which lasted approximately ten minutes, appellant
                                                                    explained that he was in a park behind the Pine Trails
                                                                    neighborhood with some females when he heard gunshots.
Appellant told the detectives that he and the other people who      Appellant saw a car drive up. Turk was driving and he told
had followed Turk to the car were upset with Turk for               appellant and Junior to get in the car. They then drove toward
bringing the car to the vicinity of the Hunter Wood                 the Hunter Wood apartments and Turk parked the car where

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                                                                 -29-
Smith v. State, Not Reported in S.W.3d (2015)




it was later found by the police. The three of them then              asked “where the bread at?” Turk then hit Veazie in the face
walked along a trail in some woods toward the apartments,             and asked “where the bread at?” Appellant said he told Turk
and Turk pulled off his pants and attempted to burn them.             “look dog[,] look bro [,] that man ain't got no money, know
Turk told them that he had blood on the pants. When they got          what I'm talking about.... Man got clothes ... in his car....”
to the apartment, Turk told them he had murdered somebody.            Appellant then told the detectives that Turk said that Veazie
Turk then told them he had tied the man up and shot him with          “had seen his face.” Thinking Turk was going to kill the man,
an AEC–47 because the man would not be quiet. Lo and                  appellant told the detectives he walked out from behind the
others, who were prominent in a gang, told everyone to be             strip center and then down Wallisville Road toward the
quiet about what they had heard, and then made threats as to          Hunter Wood apartments. According to appellant, Junior
what would happen if they were not. The interview concluded           initially stayed with Turk but he came walking up about five
with the detectives asking appellant if he would be willing to        minutes later saying Turk was going to murder that man. Soon
meet with them later to look at photos to identify the people         thereafter, Turk drove up in the man's car, picked the two of
he had discussed during the interview. Appellant was not              them up, and then drove the car to the spot where it was found
arrested and he left the jury room on his own.                        by the police.


The third interview on January 14 started about one hour after        D. Appellant's trial
the conclusion of the second. Sergeant Holtke parked outside          Appellant was charged with capital murder. He filed a
the courthouse and appellant came out and got into Holtke's           pre-trial motion to suppress that sought to exclude all four of
vehicle. Appellant identified Turk in a photo spread and told         his statements. The trial court denied the motion and filed
Holtke the person he identified was the same person who had           findings of fact and conclusions of law. The case proceeded
shot Veazie. Appellant identified Lo in a second photo                to trial, and the State sought to admit into evidence numerous
spread. The interview ended when appellant got out of                 photographs of the crime scene and Veazie's body. Appellant
Holtke's vehicle, less than seven minutes after he had gotten         objected to the admission of State's Exhibits 8 and 9 as
in.                                                                   cumulative. Appellant also objected to State's Exhibits 51, 52,
                                                                      53, 55, 56, 57, 59, and 60 as cumulative and prejudicial under
                                                                      Rule 403 of the Texas Rules of Evidence. The trial court
Sergeant Holtke and his partner, Sergeant Eric Clegg,                 overruled the objections and admitted the photographs into
interviewed appellant again on December 3, 2009. Appellant            evidence. At the conclusion of the evidence, the jury found
had been convicted on another criminal charge and was                 appellant guilty of capital murder and the trial court imposed
incarcerated at the Baker Street Jail awaiting transportation to      the mandatory sentence of life in prison without the
a state jail facility when he was interviewed. Holtke read            possibility of parole. This appeal followed.
appellant his Miranda warnings and asked if he understood
them. Appellant responded by asking if he was being charged
with something. Holtke answered no. Appellant asked if he
had a lawyer and Holtke again answered no. Appellant then                                       Analysis
asked if there was a warrant, and Holtke again answered no.
Holtke then explained that because appellant was in custody           As mentioned above, appellant raises four issues on appeal.
on an unrelated matter, he had to read him his legal warnings.        We address appellant's second issue first because it challenges
Appellant then asked why they were talking to him. Holtke             the trial court's denial of his motion for directed verdict and
responded: “well, I'll explain that to you when you want to           seeks rendition of a judgment of acquittal.
talk to me.” Appellant responded “alright” and Holtke
proceeded to ask appellant questions.
                                                                      I. The evidence is sufficient to support appellant's capital
                                                                      murder conviction because his own statements place him at
*6 During the course of the interview, appellant admitted that        the scene of the murder as a member of a conspiracy to
he, Turk, and Junior “geared up” that night to “make some             commit robbery.
bread.” Appellant said that each was armed but Turk carried           In his second issue, appellant contends the trial court should
an AK–47. The three of them then walked over to the strip             have granted his motion for directed verdict because the
center on Wallisville Road and Turk went behind the center            evidence is insufficient to support his capital murder
to use the bathroom. Turk came out and said there was a man           conviction.
asleep behind the building. They walked behind the building
and Turk woke the man up and got him out of his car. They
took Veazie's wallet and there was nothing in it. Appellant           A. Standard of review and applicable law

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                                                                   -30-
Smith v. State, Not Reported in S.W.3d (2015)




A challenge to the denial of a motion for directed verdict is a
challenge to the legal sufficiency of the evidence. Gabriel v.          A person may be guilty as a party to capital murder if the
State, 290 S.W.3d 426, 435 (Tex.App.–Houston [14th Dist.]               defendant committed the offense by his own conduct or by the
2009, no pet.). When reviewing the sufficiency of the                   conduct of another for which he is criminally responsible.
evidence, we view all of the evidence in the light most                 Tex. Penal Code Ann. § 7.01(a) (West 2011); see Gross v.
favorable to the verdict and determine, based on that evidence          State, 380 S.W.3d 181, 186 (Tex.Crim.App.2012). “If, in the
and any reasonable inferences therefrom, whether a rational             attempt to carry out a conspiracy to commit one felony,
jury could have found the elements of the offense beyond a              another felony is committed by one of the conspirators, all
reasonable doubt. Gear v. State, 340 S.W.3d 743, 746                    conspirators are guilty of the felony actually committed,
(Tex.Crim.App.2011) (citing Jackson v. Virginia, 443 U.S.               though having no intent to commit it, if the offense was
307, 318–19 (1979)). In conducting this review, an appellate            committed in furtherance of the unlawful purpose and was
court considers all evidence in the record, whether it was              one that should have been anticipated as a result of the
admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763,           carrying out of the conspiracy.” Tex. Penal Code Ann. §
767 (Tex.Crim.App.2013) (citing Dewberry v. State, 4                    7.02(b) (West 2011). A defendant in a capital murder case
S.W.3d 735, 740 (Tex.Crim.App.1999)).                                   may be convicted solely on a conspiracy theory of culpability
                                                                        contained in the jury charge. Love v. State, 199 S.W.3d 447,
                                                                        452 (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) (citing
We may not substitute our judgment for that of the jury by              Fuller v. State, 827 S.W.2d 919, 932–33
reevaluating the weight and credibility of the evidence.                (Tex.Crim.App.1992)). Therefore, the State is not required to
Romero v. State, 406 S.W.3d 695, 697 (Tex.App.–Houston                  present evidence of a defendant's intent to kill as long as the
[14th Dist.] 2013, rev'd on other grounds by Romero v. State,           evidence establishes that a felony was committed as a result
427 S.W.3d 398, 399 (Tex.Crim.App.2014)(per curiam)). We                of a conspiracy and the murder should have been anticipated
defer to the jury's responsibility to resolve any conflicts in the      in carrying out the conspiracy to commit the underlying
evidence fairly, weigh the evidence, and draw reasonable                felony. Ruiz v. State, 579 S. W.2d 206, 209 (Tex.Crim.App.
inferences. Id. The jury alone decides whether to believe               [Panel Op.] 1979).
eyewitness testimony, and it resolves any conflicts in the
evidence. Id. The jury may choose to believe some testimony
and disbelieve other testimony. Wyatt v. State, 23 S.W.3d 18,           Proof of a culpable mental state invariably depends on
30 (Tex.Crim.App.2000). In addition, because it is the sole             circumstantial evidence. See Heckert v. State, 612 S.W.2d
judge of the weight and credibility of the evidence, the jury           549, 550 (Tex.Crim.App. [Panel Op.] 1981); Martin v. State,
may find guilt without physical evidence linking the accused            246 S.W.3d 246, 263 (Tex.App.–Houston [14th Dist.] 2007,
to the crime. Romero, 406 S.W.3d at 697. In conducting a                no pet.). A culpable mental state can be inferred from the acts,
sufficiency review, we do not engage in a second evaluation             words, and conduct of the accused. Martin, 246 S.W.3d at
of the weight and credibility of the evidence, but only ensure          263.
the jury reached a rational decision. Young v. State, 358
S.W.3d 790, 801 (Tex.App.–Houston [14th Dist.] 2012, pet.
ref'd).                                                                 We may look to events before, during, and after the
                                                                        commission of the offense to determine whether there is
                                                                        sufficient evidence that an individual is a party to an offense.
*7 A person commits capital murder if he intentionally causes           Gross, 380 S.W.3d at 186. We may also consider
the death of an individual in the course of committing or               circumstantial evidence. Id. “There must be sufficient
attempting to commit robbery. Tex. Penal Code Ann. §§                   evidence of an understanding and common design to commit
19.02(b)(1), 19.03(a)(2) (West 2011). A person commits                  the offense.” Id. It is unnecessary that each fact point directly
robbery if, in the course of committing theft and with the              to the guilt of the defendant so long as the cumulative effect
intent to obtain or maintain control of the property, he                of the facts is sufficient to support the conviction under the
intentionally, knowingly, or recklessly causes bodily injury to         law of parties. Id. “However, mere presence of a person at the
another or intentionally or knowingly threatens or places               scene of a crime, or even flight from the scene, without more,
another in fear of imminent bodily injury or death. Tex. Penal          is insufficient to support a conviction as a party to the
Code Ann. § 29.02(a)(1)-(2) (West 2011). Theft is the                   offense.” Id.
unlawful appropriation of property with the intent to deprive
the owner of the property. Tex. Penal Code Ann. § 31.03
(West 2011). Appropriation of property is unlawful if it is             B. Sufficient evidence supports appellant's capital murder
without the owner's effective consent. Id. § 31.03(b)(1).               conviction.


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Smith v. State, Not Reported in S.W.3d (2015)




A person may be charged with an offense as a principal, a             witness's recantation of her prior testimony); Johnson v. State,
direct party, or a co-conspirator. See Tex. Penal Code §§ 7.01        421 S.W.3d 893, 898 (Tex.App.–Houston [14th Dist.] 2014,
(person is “criminally responsible” if offense is committed by        no pet.) (“Appellant's own statement that he did not conspire
his own conduct or by the “conduct of another for which he            to rob Vasquez does not render the evidence to the contrary
is criminally responsible”); 7.02(a)(2) (describing criminal          insufficient.”); see also Cole v. State, 194 S.W.3d 538, 551
responsibility for direct party); 7.02(b) (describing criminal        (Tex.App.–Houston [1st Dist.] 2006, pet. ref'd) (holding jury
responsibility for party as co-conspirator). Because the              is entitled to believe any or all of testimony of the State's
evidence offered at trial indicates that Turk shot Veazie, we         witnesses and fact it resolved conflicts in the evidence in
consider whether the evidence supports appellant's conviction         favor of the State did not render evidence factually
as a coconspirator. As explained below, we conclude the               insufficient).
evidence is sufficient to support appellant's conviction as a
co-conspirator under section 7.02(b) because the evidence
supports a finding that appellant should have anticipated the         Appellant also is incorrect when he argues there must be
possibility of a murder resulting from the course of                  evidence that he had an understanding and common design to
committing robbery.                                                   commit murder. Instead, all that the State was required to
                                                                      prove beyond a reasonable doubt was that appellant was part
                                                                      of a conspiracy to commit another felony—here, robbery.See
*8 Appellant is guilty of capital murder under section 7.02(b)        Ruiz, 579 S.W.2d at 209.
if (1) he was part of a conspiracy to rob Veazie; (2) one of the
conspirators murdered Veazie; (3) the murder was in
furtherance of the conspiracy; and (4) the murder should have         We conclude there is sufficient evidence in the record
been anticipated as a result of carrying out the conspiracy.          supporting appellant's capital murder conviction. This
Hooper v. State, 214 S.W.3d 9, 14 n.4 (Tex.Crim.App.2007).            evidence includes Whitney Shaw's testimony that appellant
Appellant argues there is no evidence linking him to Veazie's         “geared up” along with Turk and Junior to go out and rob
murder or establishing that he had an understanding and               people to make some money the night of Veazie's murder,
common design to commit murder that night. In making this             indicating a prior plan to commit the robbery in which
argument, appellant asserts we must disregard his December            appellant participated. Although Shaw saw only two guns that
3, 2009 statement because he recanted it during his trial             night, appellant admitted during his statement that all three
testimony. Appellant also contends that Whitney Shaw's                were armed. Appellant also admitted during his statement that
testimony about appellant gearing up with Turk and Junior to          he knew Turk was crazy, was a “super-gangster,” was “wired
go rob people must be discounted because other witnesses              up” on drugs the night of the murder, and was capable of
testified that appellant was present at a family party in a           committing violent acts. See Johnson, 421 S.W.3d at 898–99
different part of Harris County the night of Veazie's murder.         (explaining that reason to believe co-conspirator was violent
                                                                      and awareness that co-conspirators were armed can show that
                                                                      defendant should have anticipated murder occurring in course
We disagree that the evidence, when viewed under the                  of robbery).
appropriate standard of review, is insufficient to support
appellant's capital murder conviction. First, when reviewing
sufficiency claims, an appellate court must consider all of the       Appellant's statement also ties him directly to the robbery.
evidence presented, whether properly or improperly admitted.          Appellant told police during his December statement that he
Ervin v. State, 333 S.W.3d 187, 200 (Tex.App.–Houston [1st            and the other two armed men left the Hunter Wood
Dist.] 2010, pet. ref'd) (citing Fuller, 827 S.W.2d at 931). We       apartments and eventually walked behind a nearby strip center
therefore consider both appellant's December 3, 2009                  where they found Veazie asleep in his car. Appellant also told
statement as well as Whitney Shaw's testimony. Appellant's            the police that they removed Veazie from his car and that he
decision to recant his statements during his trial testimony and      himself asked, at least one time, where the “bread” was
to present several alibi witnesses on his whereabouts on the          located. Evidence also showed that Veazie was tied up, an
night of the murder meant that it was up to the jury, as the          action the jury could reasonably infer would require more
exclusive judge of the credibility of the witnesses and the           than one person to perform. Appellant also admitted during
weight to be given their testimony, to resolve any conflicts          his December 3, 2009 statement that he saw Turk beat
and inconsistencies in the evidence and render its verdict. The       Veazie. There was also evidence that Veazie was gagged and
jury's choice to resolve those conflicts and inconsistencies in       ultimately shot because he would not stop screaming.
favor of the State does not render the evidence insufficient.         Although appellant told police during his statement that he
See Chambers v. State, 805 S.W.2d 459, 461                            walked away from the scene before Veazie was shot, the jury,
(Tex.Crim.App.1991) (stating the jury can disbelieve a                as the trier of fact, was entitled to disbelieve that part of his

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Smith v. State, Not Reported in S.W.3d (2015)




statement even if it accepted the remainder. See Chambers,            testimony and other admitted evidence, the jury instructions,
805 S.W.2d at 461 (stating the jury, as the trier of fact, is         the State's theories and any defensive theories, closing
entitled to judge the credibility of witnesses and can believe        arguments, and even voir dire if applicable. Bagheri v. State,
some, all, or none of the testimony presented by the parties).        119 S.W.3d 755, 763 (Tex.Crim.App.2003). The presence of
                                                                      overwhelming evidence supporting the finding of guilt can
                                                                      also be a factor in the evaluation of harmless error. Motilla v.
*9 The evidence also showed that Veazie's assailants took his         State, 78 S.W.3d 352, 357 (Tex.Crim.App.2002).
car and drove it a short distance away from the scene of the
crime. Finally, appellant told the police during his statements
that he, along with a group of about ten to twelve other              As previously discussed, the record contains abundant
people, went back to the car to wipe it down and thereby              evidence of appellant's guilt. This evidence includes
remove any evidence indicating that he had touched the                appellant's December 3, 2009 statement, in which he
vehicle. We conclude that this evidence of events before,             confessed to every element of capital murder. In addition, the
during, and after Veazie's murder would permit a rational trier       State used the challenged photographs to illustrate the specific
of fact to conclude, beyond a reasonable doubt, that appellant        mechanics of Veazie's death, which helped to establish that
was part of a conspiracy to rob Veazie, that appellant was            there was more than one assailant. See Morales v. State, 32
present at the scene of the murder, that the murder was               S.W.3d 862, 867 (Tex.Crim.App.2000) (holding reviewing
committed by one of the conspirators in furtherance of the            court should consider State's theory in assessing harm);
conspiracy, and that appellant should reasonably have                 Samuels v. State, 785 S.W.2d 882, 888 (Tex.App.–San
anticipated the possibility that a murder might occur during          Antonio 1990, pet. ref'd) (considering State's purpose for
the course of that robbery. Accordingly, we overrule                  offering autopsy photographs). In addition, the gruesome
appellant's second issue.                                             nature of the photos stems from the extremely brutal nature of
                                                                      the conspirators' own criminal conduct. See Jones v. State,
                                                                      111 S.W.3d 600, 609 (Tex.App.–Dallas 2003, pet. ref'd)
II. Appellant was not harmed by the admission of autopsy              (considering the brutal nature of the defendant's criminal
and crime scene photographs.                                          conduct in determination that admission of autopsy
Turning to appellant's arguments for a new trial, appellant           photographs was not harmful). Finally, the State did not once
asserts in his first issue that the trial court abused its            mention the challenged photographs during its closing
discretion when it admitted ten autopsy and crime scene               argument. See Reese v. State, 33 S.W.3d 238, 244
photographs over his Rule 403 objection.3 According to                (Tex.Crim.App.2000) (concluding erroneous admission of
appellant, the challenged photographs were needlessly                 photographs was harmful in part because State emphasized
cumulative of other evidence and their probative value was            photographs during closing argument).
substantially outweighed by the danger of unfair prejudice.
Assuming without deciding that the trial court abused its
discretion when it overruled his objections and admitted the          *10 We conclude that, in the context of the entire case against
challenged photographs into evidence, we conclude that                appellant, any error the trial court may have made in
appellant was not harmed as a result.                                 admitting the challenged photographs did not influence the
                                                                      jury or had but a slight effect and therefore did not affect
                                                                      appellant's substantial rights. See Drew, 76 S.W.3d at 453.
A conviction will not be reversed “ ‘merely because the jury          We overrule appellant's first issue.
was exposed to numerous admittedly ‘gruesome’ pictures.' ”
Drew v. State, 76 S.W.3d 436, 453 (Tex.App.–Houston [14th
Dist.] 2002, pet. ref'd) (quoting Long v. State, 823 S.W.2d           III. The trial court did not abuse its discretion when it
259, 275 (Tex.Crim.App.1991)). The admission of evidence              denied appellant's motion to suppress his January and
in violation of an evidentiary rule is non-constitutional error.      December statements.
Hamilton v. State, 399 S.W.3d 673, 684 (Tex.App.–Amarillo             In his third issue, appellant contends that the trial court
2013, pet. ref'd) (citing Johnson v. State, 967 S.W.2d 410,           abused its discretion when it denied his motion to suppress
417 (Tex.Crim.App.1998)). The trial court's erroneous                 and admitted into evidence audio recordings of two of his
admission of photographs is harmless if, after reviewing the          statements to the detectives investigating Veazie's murder.
entire record, we have fair assurance that the error did not          Appellant argues the trial court should have excluded the first
influence the jury or had but a slight effect upon the jury's         statement he made on January 14, 2009 because it resulted
verdict. Rolle v. State, 367 S.W.3d 746, 752                          from “an un-Mirandized custodial interrogation in which he
(Tex.App.–Houston [14th Dist.] 2012, pet. ref'd). In making           invoked his right to counsel and was denied access to
this determination, an appellate court should consider the trial      counsel.” Appellant also asserts the trial court should have

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Smith v. State, Not Reported in S.W.3d (2015)




excluded his December 3, 2009 statement because “it was the             armed detectives, and other people were denied entry into the
result of a Mirandized custodial interrogation in which                 room during the interview. Appellant also points to his
[appellant] invoked his right to counsel and was denied access          testimony that he subjectively believed he was under arrest
to counsel.” We address each argument in turn.                          and was not free to leave the jury room.


A. Standard of review                                                   In Miranda, the Supreme Court of the United States held that
In reviewing a trial court's ruling on a motion to suppress, an         “the prosecution may not use statements, whether exculpatory
appellate court must apply an abuse-of-discretion standard              or inculpatory, stemming from custodial interrogation of the
and overturn the trial court's ruling only if it is outside the         defendant unless it demonstrates the use of procedural
zone of reasonable disagreement. Martinez v. State, 348                 safeguards effective to secure the privilege against
S.W.3d 919, 922 (Tex.Crim.App.2011). We must view the                   self-incrimination.” 384 U.S. at 444. Texas codified these
evidence in the light most favorable to the trial court's ruling.       safeguards in article 38.22 of the Texas Code of Criminal
Weide v. State, 214 S.W.3d 17, 24 (Tex.Crim.App.2007). At               Procedure. Section 3(a) of article 38.22 provides that no oral
a suppression hearing, the trial judge is the sole trier of fact        statement of an accused “made as a result of custodial
and assesses the witnesses' credibility and decides the weight          interrogation” shall be admissible against him in a criminal
to give to that testimony. Id. at 24–25. When, as here, the trial       proceeding unless an electronic recording of the statement is
court makes explicit fact findings, we determine whether the            made, the accused is given all specified warnings, including
evidence, when viewed in the light most favorable to the                the Miranda warnings, and he knowingly, intelligently, and
ruling, supports those fact findings. State v. Kelly, 204               voluntarily waives the rights set out in the warnings.
S.W.3d 808, 818 (Tex.Crim.App.2006). We then review the                 Tex.Code Crim. Proc. Ann. art. 38.22 § 3(a) (West 2005).
trial court's legal rulings de novo unless its explicit fact
findings that are supported by the record are also dispositive
of the legal ruling. Id. We uphold the ruling if it is supported        Miranda warnings and article 38.22 requirements are
by the record and correct under any theory of the law                   mandatory only when there is a custodial interrogation,
applicable to the case. Hereford v. State, 339 S.W.3d 111,              however. Herrera v. State, 241 S.W.3d 520, 526
117–18 (Tex.Crim.App.2011).                                             (Tex.Crim.App.2007). The meaning of “custody” is the same
                                                                        for purposes of both Miranda and article 38.22. Id. The State
                                                                        has no burden to show compliance with Miranda unless and
Generally, we limit the scope of our review to the evidence             until the record as a whole “clearly establishes” that the
adduced at the suppression hearing because the ruling was               defendant's statement was the product of a custodial
based on it rather than evidence introduced later. Gutierrez v.         interrogation. Id.
State, 221 S.W.3d 680, 687 (Tex.Crim.App.2007); Turner v.
State, 252 S.W.3d 571, 577 (Tex.App.–Houston [14th Disk]
2008, pet. ref'd). But, when, as here, the parties re-litigate the      Generally, a person is considered to be in custody for
suppression issue at trial, we consider all evidence from both          purposes of Miranda and article 38.22 when: (1) the person
the pre-trial suppression hearing and the trial in reviewing the        is formally arrested; or (2) the person's freedom of movement
trial court's determination. See Gutierrez, 221 S.W.3d at 687;          is restrained to the degree associated with a formal arrest.
Turner, 252 S.W.3d at 577.4                                             Nguyen v. State, 292 S.W.3d 671, 677 (Tex.Crim.App.2009).
                                                                        Because it is undisputed that appellant was not formally under
                                                                        arrest during any of his January 2009 statements, the issue
B. Because appellant was not in custody during his first                here turns on whether a reasonable person would have felt
January 2009 statement, the trial court did not abuse its               that he was not at liberty to terminate the interview and leave.
discretion when it denied appellant's motion to suppress the            Nguyen, 292 S.W3d at 678; Dowthitt v. State, 931 S.W.2d
statement.                                                              244, 254 (Tex.Crim.App.1996) (citing Stansbury v.
*11 Appellant argues the trial court should have suppressed             California, 511 U.S. 318, 322 (1994)). Our custody inquiry
the audio recording of his initial interview on January 14,             includes an examination of all the objective circumstances
2009 because (1) he was in custody, (2) he invoked his right            surrounding the questioning. Herrera, 241 S.W.3d at 525.
to counsel during the interview, and (3) the detectives denied          The subjective belief of law enforcement officers about
him access to his attorney and continued to question him. In            whether a person is a suspect does not factor into the custody
support of his contention that he was in custody during the             determination unless that officer's subjective belief has been
initial interview, appellant points out that he was taken to a          conveyed to the person being questioned. Id. at 525–26.
jury room by an armed bailiff, the jury room was in a
non-public area of the courthouse, he was interviewed by two

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Smith v. State, Not Reported in S.W.3d (2015)




Here, the interview occurred in a jury room in the Harris             had the opportunity to talk with an attorney. See Estrada v.
County criminal courthouse, where appellant had appeared in           State, 313 S.W.3d 274, 296 (Tex.Crim.App.2010) (“The need
connection with another criminal matter. Appellant was                to scrupulously honor a defendant's invocation of Miranda
brought to the jury room by a bailiff and there were two              rights does not arise until created by the pressures of a
plain-clothes detectives in the room waiting for him. Both            custodial interrogation.”). We therefore hold the trial court
detectives were armed, but they did not display their weapons         did not abuse its discretion when it denied appellant's motion
during the interview. The complete interview was recorded             to suppress his first January 2009 statement.
and is contained in the appellate record. The detectives
explicitly told appellant at the beginning of the interview that
he was not in custody. Similarly, one of the detectives               C. The trial court did not abuse its discretion when it
reminded appellant later in the interview that appellant was          denied appellant's motion to suppress his December 2009
not in handcuffs and the detectives were not going to take him        statement because he did not unambiguously invoke his
anywhere. In addition, when appellant asked if he could call          right to counsel.
the lawyer representing him in the other criminal matter into         Appellant next asserts that the trial court abused its discretion
the room, the detectives told him that he could. Shortly              when it refused to suppress his December 3, 2009 statement.
thereafter, when appellant said he wanted to get his lawyer,          According to appellant, the trial court should have suppressed
the detectives told him to go get him. Appellant did not, but         the December statement because (1) the statement was made
instead continued talking with the detectives. Appellant's            during a custodial interrogation; (2) he did not waive his
subjective belief that he was under arrest and was not free to        rights but instead adequately invoked his right to counsel
terminate the interview and leave the jury room is not relevant       during the January and December interviews; (3) the
to our analysis. See Dowthitt, 931 S.W.2d at 254.                     detectives then denied him access to an attorney; and (4) the
                                                                      detectives continued with the interview anyway.5 According
                                                                      to appellant, the detectives' conduct violated his Fifth
*12 Appellant's lawyer eventually arrived at the jury room.           Amendment right to counsel. Appellant also argues that the
The lawyer was allowed into the jury room and he asked for            trial court should have suppressed his December statement
a break to speak with appellant. When the lawyer asked if             because he had previously invoked his right to counsel
there was a warrant out for appellant, the detectives denied          regarding another offense and he could not be approached
there was. The attorney then told the detectives that if              regarding any other offense unless his counsel was present. In
appellant wanted to continue talking with them, the interview         appellant's view, the fact the detectives approached him in
could continue after the break. The first interview ended at          December 2009 violated his Sixth Amendment right to
that point in time. The second interview started a few minutes        counsel. We disagree that the detectives' handling of the
later. Sergeant Holtke began the second interview by stating          December interview violated either appellant's Fifth
that appellant's attorney had told them that appellant wanted         Amendment or Sixth Amendment rights to counsel.
to continue talking with them. Appellant did not disagree and
participated in the interview. At the end of the second
interview, appellant was allowed to leave the jury room. The
third interview occurred later the same day, when appellant                       1. Fifth Amendment right to counsel
exited the courthouse and voluntarily got into Holtke's vehicle
to look at photo spreads. At the end of that brief interview,         *13 The Fifth Amendment right to have an attorney present
appellant was allowed to leave Holtke's vehicle.                      during any custodial police interrogation applies to any
                                                                      offense about which the police might want to question a
                                                                      suspect. State v. Gobert, 275 S.W.3d 888, 892
The trial court found that appellant voluntarily participated in      (Tex.Crim.App.2009). Among the rights about which the
all of his interviews with the detectives investigating Veazie's      police must advise a suspect whom they have arrested is the
murder. It further concluded that appellant was not in custody        right to have counsel present during any police-initiated
during the January 2009 statements. Applying the appropriate          interrogation. Id. Once the suspect in custody has invoked his
standard of review, we conclude that the record, summarized           Fifth Amendment right to counsel, police interrogation must
above, supports the trial court's conclusion that appellant's         cease until counsel has been provided or the suspect himself
first January 2009 interview was not the product of a                 reinitiates the dialogue.Edwards v. Arizona, 451 U.S. 477,
custodial interrogation. See Turner, 252 S.W.3d at 582.               484–85 (1981); Gobert, 275 S.W.3d at 892.
Because the first January interview was not a custodial
interrogation, we need not further address whether appellant
adequately invoked his right to counsel, which would have             The State does not contest that appellant was in custody
required the detectives to stop the interview until appellant         during the December interview and instead points out that the

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Smith v. State, Not Reported in S.W.3d (2015)




trial court found he received the required warnings at the            suppress his December statement to the extent it was based on
beginning of the interview. The State goes on to argue that           the Fifth Amendment right to counsel.
appellant did not unambiguously invoke his right to counsel
during the December interview. The State then contends that
appellant voluntarily waived his rights when he answered
“alright” to Sergeant Holtke's statement that he would explain                    2. Sixth Amendment right to counsel
why they were talking to him when appellant wanted to speak
with them. We agree with the State.                                   *14 With regard to his Sixth Amendment right, appellant
                                                                      contends that once he had invoked his right to counsel on
                                                                      other charges, the police were not allowed to speak with him
We turn first to the question whether the record supports the         regarding the Veazie murder unless his attorney was present.
trial court's conclusion that appellant waived his rights at the      We disagree.
beginning of the December interview. Although appellant did
not expressly state that he waived his rights at the beginning
of the December interview, we conclude that he did so                 The Sixth Amendment right to counsel is offense specific.
implicitly by responding “alright” and answering questions            Rubalcado v. State, 424 S.W.3d 560, 570
after being read his rights. See Turner, 252 S.W.3d at                (Tex.Crim.App.2014). Thus, the right does not prevent the
583–84. The next question is whether appellant thereafter             police from asking about an offense different from the offense
invoked his right to counsel, requiring the detectives to stop        regarding which the suspect has previously invoked his right
the interview. Because there was no unambiguous invocation            to counsel.Cobb v. State, 85 S.W.3d 258, 263–64
of his right to counsel after he had implicitly waived his            (Tex.Crim.App.2002). “In other words, the invocation of the
rights, we conclude that he did not.                                  right viz one charge or prosecution does not encompass all
                                                                      future, yet distinct, offenses and prosecutions therefor.” Romo
                                                                      v. State, 132 S.W.3d 2, 4 (Tex.App.–Amarillo 2003, no pet.).
Appellant points out that he asked at the beginning of the            The critical inquiry for purposes of the Sixth Amendment
December interview, “I got a lawyer?” He argues this                  right to counsel is whether the offenses are the same. See
question was a sufficiently unambiguous invocation of his             Blockburger v. United States, 284 U.S. 299, 304 (1932)
right to counsel that the detectives should have stopped the          (announcing test to determine whether offenses are the same);
interview until he had had an opportunity to speak with an            Cobb, 85 S.W.3d at 264; Romo, 132 S.W.3d at 4.
attorney.6 But not every mention of a lawyer by a suspect will
suffice to invoke the Fifth Amendment right to the presence
of counsel during questioning. Gobert, 275 S.W.3d at 892.             Here, appellant does not argue that the capital murder charge
An ambiguous or equivocal statement with respect to counsel           is the same as the other offenses regarding which he had
does not even require officers to seek clarification, much less       previously invoked his right to counsel.8 Therefore, appellant
halt their interrogation. Id. Whether the mention of a lawyer         has not shown that the detectives violated his Sixth
constitutes a clear invocation of the right to counsel will           Amendment right to counsel when they interviewed him on
depend upon the statement itself and the totality of the              December 9, 2009. We conclude that the trial court did not
circumstances. Id. The test is an objective one and the suspect       err when it denied appellant's motion to suppress to the extent
must articulate his desire to have counsel present sufficiently       the motion was based on the Sixth Amendment right to
clearly that a reasonable police officer in the circumstances         counsel. Having addressed and rejected each argument raised
would understand the statement to be a request for an                 in appellant's third issue, we overrule that issue.
attorney. Id. at 892–93.

                                                                      IV. The record on appeal contains a signed and certified
Based on the totality of the circumstances, we conclude that          Criminal Bill of Costs that supports the trial court's
appellant's question was not a clear and unequivocal                  assessment of $614 in court costs against appellant.
invocation of his right to counsel. See Davis v. United States,       In his fourth issue, appellant contends there is no bill of costs
512 U.S. 452, 462 (1994) (holding that statement “Maybe I             in the appellate record, and therefore the evidence supporting
should talk to a lawyer” was not request for counsel).7               the trial court's assessment of court costs against him is
Because appellant's question did not clearly and                      insufficient. We review the assessment of court costs on
unambiguously request counsel, the detectives were under no           appeal to determine whether there is a basis for the costs, not
obligation to halt the interview or even to seek clarification        whether there was sufficient evidence offered at trial to prove
from appellant. Gobert, 275 S.W.3d at 892. We conclude that           each cost. Johnson v. State, 423 S.W.3d 385, 390
the trial court did not err when it denied appellant's motion to

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Smith v. State, Not Reported in S.W.3d (2015)




(Tex.Crim.App.2014).                     Traditional
sufficiency-of-the-evidence standards do not apply. Id.


Generally, a bill of costs must (1) contain the items of cost,
(2) be signed by the officer who charged the cost or the
officer who is entitled to receive payment for the cost, and (3)
be certified. Id. at 392–93; see Tex.Code Crim. Proc. Ann.
arts. 103.001, 103.006 (West 2005). The record in this case
contains a Criminal Bill of Costs signed and certified by the
district clerk and a deputy clerk. The Criminal Bill of Costs
lists the costs assessed, and the amount totals $614, the
amount of court costs assessed against appellant. Under
Johnson, a criminal bill of costs such as the one contained in
the appellate record of this case provides a sufficient basis for
the trial court's assessment of costs. Id. at 392–96. In addition,
there is no requirement that the bill of costs be brought to the
trial court's attention. Id. at 394. We therefore hold the
Criminal Bill of Costs supports the assessment of $614 in
court costs against appellant. We overrule appellant's fourth
issue.



                           Conclusion

*15 Having addressed and rejected each of the issues raised
by appellant, we affirm the trial court's judgment.



All Citations

Not Reported in S.W.3d, 2015 WL 3751776



Footnotes

1        Miranda v. Arizona, 384 U.S. 436 (1966).


2        Appellant explained that a “grip” means “a bunch of money.”


3        Appellant also includes in his first issue an assertion that the trial court's admission of these photographs violated his right to a fair
         trial under the Eighth and Fourteenth Amendments to the United States Constitution. Appellant does not, however, support this
         assertion by providing appropriate citations to the record and legal authority in his discussion of the issue. We therefore hold he has
         waived this portion of the issue due to inadequate briefing. See Tex.R.App. P. 38.1(i).

4        Arguably, this review should include only trial evidence up to the point in the trial when the court made its final ruling on the
         suppression issue. We need not resolve this scope question, however, because the parties do not argue that it affects the outcome of
         our analysis in this case.




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Smith v. State, Not Reported in S.W.3d (2015)




5      We already have determined that appellant was not in custody during the January interviews. Therefore, even if appellant
       unambiguously asked for an attorney during those interviews, the detectives were not obligated to provide appellant with an attorney
       or to terminate the interview at that time. See Estrada v. State, 313 S.W.3d 274, 296 n.26 (Tex.Crim.App.2010) (noting that the
       “defendant's remedy in a noncustodial setting where the police continue questioning the defendant after the defendant has
       unambiguously invoked his right to silence is to simply get up and leave ...”).

6      This is the only reference to an attorney that appellant points out in his brief. We have listened to the entire recording of the December
       interview and conclude that this was the only time during the interview that appellant mentioned the word “lawyer” or “attorney”.

7      See also Mbugua v. State, 312 S.W.3d 657, 665 (Tex.App.–Houston [1st Dist.] 2009, pet. ref'd) (holding that question “Can I wait
       until my lawyer gets here?” was not clear and unambiguous assertion of right to counsel); Gutierrez v. State, 150 S.W.3d 827, 832
       (Tex.App.–Houston [14th Dist.] 2004, no pet.) (holding that question “Can I have [my attorney] present now?” was ambiguous and
       did not clearly and unequivocally invoke right to counsel); Halbrook v. State, 31 S.W.3d 301, 304 (Tex.App.–Fort Worth 2000, pet.
       ref'd) (holding that question “Do I get an opportunity to have my attorney present?” did not constitute clear and unambiguous
       invocation of right to counsel); Flores v. State, 30 S.W.3d 29, 34 (Tex.App.–San Antonio 2000, pet. ref'd) (holding that question
       “Will you allow me to speak to my attorney before?” was not clear and unambiguous invocation of right to counsel).

8      Appellant testified during his trial that his previous criminal charges included: (1) unauthorized use of a motor vehicle; (2) evading
       arrest in a motor vehicle; and (3) attempted injury to a child.

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