                                  NO. 07-10-00032-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL A

                                      JULY 19, 2011


                             ARSENIO PETTY, APPELLANT

                                             v.

                           THE STATE OF TEXAS, APPELLEE


               FROM THE 16TH DISTRICT COURT OF DENTON COUNTY;

       NO. F-2009-0413-A; HONORABLE CARMEN RIVERA-WORLEY, JUDGE


Before CAMPBELL, and HANCOCK and PIRTLE, JJ.


                                         OPINION


       Appellant, Arsenio Petty, appeals from a conviction for capital murder.1        The

State did not did not seek the death penalty, therefore, appellant was automatically

sentenced to incarceration for life in the Institutional Division of the Texas Department of

Criminal Justice without the possibility of parole.2 Appellant appeals contending that the

trial court committed reversible error in admitting his videotaped confession, and in



       1
           See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011).
       2
           See TEX. PENAL CODE ANN. § 12.31(a) (West 2011).
admitting State’s exhibit 58, a picture drawn by one of appellant’s victims. Further,

appellant contends that the automatic life sentence mandated by statute is

unconstitutional under both the United States Constitution and the Texas Constitution.

We affirm.


                          Factual and Procedural Background


       Appellant does not object to the sufficiency of the evidence to sustain the jury’s

verdict. Therefore, only that portion of the factual and procedural background that is

relevant to appellant’s contentions on appeal will be discussed.


       On December 30, 2008, appellant and at least two other men entered a

convenience store, The Gas Pipe, in Carrollton, Texas. A surveillance camera reflects

that, as the first two men enter the store, appellant reaches and takes a handgun from

Maurice Hall and begins shooting at the employees and patrons in the store. In the

ensuing melee, appellant shot and struck Rebecca Kemp in the upper left chest. Kemp

died as a result of this wound. All of the assailants, including appellant, fled the store

after the shooting. No money was obtained in the robbery.


       Having no clear leads or suspects in the shooting, the police released the

surveillance videotape to local media outlets. As a result of the video being played on

local television stations, information was furnished to the police identifying appellant as

the individual doing the shooting in the video. Upon further investigation, the police

interviewed appellant’s sister, Shadara Perry, who told the police that appellant had told

her he thought he had shot somebody during the robbery shown on television.




                                            2
       Appellant was subsequently arrested and, after his arrest, he gave a videotaped

statement to the police confessing to his actions in the shooting.    Appellant filed a pre-

trial motion to suppress the confession. After viewing that portion of the statement that

was at issue, the trial court overruled the motion to suppress. During the trial, the

videotape in question was introduced into evidence as State’s exhibit 54 and played for

the jury.


       During the trial of appellant, a number of witnesses were called to testify that

appellant had either told them of his participation in the robbery/murder, or about

observing appellant’s reaction when the television news had played the surveillance

video of the event. The State also introduced State’s exhibit 58 during the testimony of

Holly Arceneaux. Arceneaux was in The Gas Pipe convenience store at the time of the

shootings. As part of her personal therapy, she had drawn a picture of the incident.

The State offered Arceneaux’s drawing. Appellant objected to the introduction of the

picture on the basis of relevance, prejudice, and best evidence.            The trial court

overruled the objections and allowed the picture to be introduced before the jury. Upon

submission of the case to the jury, the jury found appellant guilty of the offense of

capital murder.    Because the State had waived the death penalty, appellant was

automatically sentenced to confinement for life without the possibility of parole.


       Appellant filed a motion for new trial, which was denied by the trial court.

Subsequently, appellant requested the trial court file findings of fact and conclusions of

law regarding the admission of the videotaped confession. Because these findings and

conclusions were not included in the original Clerk’s Record filed with this Court, we

abated this matter back to the trial court to file the requested findings and conclusions.

                                             3
These findings and conclusions were subsequently filed and are part of the record in

this appeal.


       Appellant has appealed contending that the trial court’s admission of his

videotaped confession and the Areceneaux picture was reversible error.           Further,

appellant contends that the statutory punishment scheme for a capital murder conviction

where the death penalty is not being sought is unconstitutional.      We disagree with

appellant’s contentions and will affirm.


                                    Motion to Suppress


       Appellant’s first two issues contend that the trial court abused its discretion by

admitting the videotaped confession over appellant’s objection. Issue one is based

upon appellant’s objection that the confession was obtained in violation of article 38.21

of the Texas Code of Criminal Procedure and, therefore, was not admissible pursuant to

article 38.23 of the Texas Code of Criminal Procedure.3 See TEX. CODE CRIM. PROC.

ANN. art. 38.21; art. 38.23 (West 2005). Issue two contends that the same videotaped

confession was inadmissible because it was obtained in violation of the United States

Constitution.


       Initially, we must address the State’s contention that appellant’s motion to

suppress the videotaped confession did not properly apprise the trial court that

appellant was objecting on the basis of the United States Constitution. While the oral

motion to suppress was not the model of clarity, we feel certain that, when appellant’s

trial counsel urged that the videotaped confession was inadmissible because the same
       3
          Further reference to the Texas Code of Criminal Procedure will be by reference
to “article ___” or “art. ___.”

                                            4
was coerced by the promise made to appellant, the trial court understood appellant to

be urging exclusion of the evidence on the basis of the United States Constitution. See

Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct 1246, 113 L.Ed.2d 302 (1991).

Accordingly, we do not agree with the State that appellant has waived his United States

Constitutional claim.   Further, upon review of the trial court’s findings of fact and

conclusions of law, it is clear that the trial court understood appellant’s motion to include

a United States Constitutional claim.


Standard of Review


       To review the denial of a motion to suppress, we apply a bifurcated standard of

review. See Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). We review

the trial court’s application of the law to the facts de novo. Id. However, we defer to the

trial court’s determination of credibility and historical fact. Id. Because the trial court is

in the position to see the witnesses testify and to evaluate their credibility, we must view

the evidence in the light most favorable to the trial court’s ruling. See Wiede v. State,

214 S.W.3d 17, 24 (Tex.Crim.App. 2007). Where a trial court has made findings of fact,

as is the case here, we review the record to determine whether the evidence, viewed in

the light most favorable to the trial court’s ruling, supports the fact findings entered. See

State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006).


Analysis


       Article 38.21


       Turning first to the state statutory argument put forth by appellant, article 38.21

provides that “an accused’s statement may be used against him at trial, if it appears that

                                              5
the same was freely and voluntarily made without compulsion or persuasion, under the

rules hereinafter prescribed.” Appellant is not contending that the rules prescribed by

the statutory scheme were not complied with. It is appellant’s position that the detective

who took appellant’s videotaped confession, Mark Ahearn, made promises to appellant

that resulted in the confession and, therefore, made the confession inadmissible.

Specifically, appellant contends that Detective Ahearn induced appellant’s confession

by promising him that he would be permitted to see his family if he confessed.


      The State contends that the promise that appellant could see his family was

couched in terms of seeing them when they finished the interview process before he

was taken to jail and was not conditional on appellant confessing. Further, whatever the

nature of the promise made, the State contends that it was not of such a nature that it

would cause appellant to speak untruthfully.


      In order for a promise to invalidate a confession under article 38.21, the promise

must be: 1) positive, 2) made or sanctioned by someone in authority, and 3) of such an

influential nature that it would cause a defendant to speak untruthfully. Martinez v.

State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004).4 Appellant and the State agree that

there was a positive promise, that appellant could visit his family, made by a person in

authority, Detective Ahearn. However, it is the third element that is hotly contested,

whether the promise at issue was of such an influential nature that it would cause a

defendant to speak untruthfully.


      4
         See also Perales v. State, No. 2-07-268-CR., 2008 Tex. App. LEXIS 7675, at
*11-*12 (Tex.App.—Fort Worth 2008, pet. ref’d, untimely filed) (not designated for
publication); Wells v. State, No. 2-05-352-CR, 2007 Tex. App. LEXIS 2544, at *10
(Tex.App.—Fort Worth 2007, no pet.) (not designated for publication).

                                            6
       The trial court made specific findings of fact that address the issue of discussions

regarding appellant’s family and promises made to appellant about seeing his family.

The applicable findings are:


       4. Prior to and after the defendant’s admission of capital murder, Detective
       Ahearn told the defendant that after they had finished talking and when
       they got through the entire story once, Detective Ahearn would let the
       defendant talk to his family and say goodbye, and that defendant’s family
       could visit with the defendant before he was taken to the jailhouse.
       5. The defendant was not told that he could not talk or visit with his family
       if he refused to give a confession.
       6. The defendant never requested nor was he denied the right to contact
       any family members.

Our review of the record reveals that the findings of the trial court regarding any promise

made to appellant by Detective Ahearn are supported in the testimony and on the

videotape of the confession. See Kelly, 204 S.W.3d at 818.


       Additionally, we note that, even if we were to agree with appellant that Detective

Ahearn did refuse to allow him to see his family until he confessed, the videotaped

confession would still have been admissible. This is because the type of promise made

was not of the nature or type that conferred such a benefit upon appellant as would

cause him to speak untruthfully. See Martinez, 127S.W.3d at 795 (“Under State law the

determination is whether the officially sanctioned positive promise would be likely to

influence the defendant to speak untruthfully and not whether the defendant in fact

spoke untruthfully.”). Such was the finding of fact entered by the trial court. See Kelly,

204 S.W.3d at 818. Again, the record supports this finding. We are of the opinion that,

even if Detective Ahearn had promised appellant that he could see his family if he




                                            7
confessed, such a promise would not confer any benefit on appellant that would cause

him to speak untruthfully. Accordingly, appellant’s issue one is overruled.


      United States Constitution


      Appellant’s second issue contends that the confession should have been

suppressed because it was obtained in violation of the safeguards contained in the

United States Constitution. When focusing on an alleged due process violation which

resulted in the statement being obtained involuntarily, the standard is whether all of the

attendant circumstances reflect that appellant’s will was overborne. See Dickerson v.

United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); see also

Delao v. State, 235 S.W.3d 235, 239 (Tex.Crim.App. 2007), cert. denied, 552 U.S.

1168, 128 S.Ct. 1128, 169 L.Ed.2d 953, (2008).


      In addition to the promises that appellant contends that Detective Ahearn made,

appellant points to his age, 20 years old, and alleged psychological problems he was

having as a result of his having been previously shot, as part of the totality of the

circumstance requiring the trial court to have found appellant’s confession involuntarily

given. Giving full play to the totality of the circumstances, the record does not support

appellant’s position. That appellant was upset and under stress is borne out in the

video of the confession interview. However, a review of the record shows that the only

matter mentioned to the trial court, other than the promise allegedly made by Detective

Ahearn, was appellant’s age, and this was only argued in a very limited and cursory

manner. Nowhere in the objection during the hearing on the motion to suppress or at

the time State’s exhibit 54, the videotaped confession, was offered does the record



                                            8
reflect that appellant contended that any psychological issues might have weighed on

his decision to confess. To the extent appellant now attempts to argue that subject

matter, he is constrained from doing so as his objection at trial does not comport to that

argument in his brief. See TEX. R. APP. P. 33.1(a)(1)(A). Regarding appellant’s age, at

trial appellant’s attorney only mentions it in passing while arguing the motion to

suppress. We will, however, address this issue as having been brought to the trial

court’s attention. See id.


       Appellant’s age at the time of the statement was, according to his brief, 20 years.

The trial court’s findings of fact recite that the statement was “made knowingly,

intelligently, freely, and voluntarily without any threats, compulsion, persuasion, duress,

coercion, or other improper influence.” In our review of the record to ascertain the

totality of the circumstances, we find nothing indicating that appellant did not understand

the nature of the questions asked him or the implication of his answers. Rather, what

we see is a younger man who understands that he is in a substantial amount of trouble

and appears to decide to confess once he realizes that his family and friends have

already talked to the police about his involvement in the crime.               There is no

demonstrative overreaching by the police, nor is there any apparent coercion. See

Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)

(coercive police activity is a necessary predicate to the finding that a confession was not

voluntary within the meaning of the Due Process Clause). Additionally, in addressing

appellant’s first issue, we found that the trial court’s finding of fact that there were no

promises made to appellant by Detective Ahearn was supported in the record.                In

regard to the second issue, the trial court’s finding of fact regarding a lack of coercion or


                                             9
overreaching is likewise supported in the record. Therefore, we overrule appellant’s

second issue. See Kelly, 204 S.W.3d at 818.


                             Admission of State’s Exhibit 58


       Appellant’s third issue contends that, when the trial court allowed State’s exhibit

58 to be admitted before the jury, the trial court abused its discretion. State’s exhibit 58

was a picture drawn by Holly Arceneaux shortly after the incident in question.

Arceneaux had been one of the customers inside The Gas Pipe at the time of the

shooting.   According to the record, Arceneaux drew the picture in question while

undergoing therapy as a result of witnessing the events of that day.          According to

Arecneaux’s testimony, the picture represents both the shooting and the immediate

aftermath of the shooting with the victim and others depicted. Appellant objected that

the picture was irrelevant, prejudicial, and that better evidence existed in the form of the

surveillance camera photographs. The trial court overruled the objection and the exhibit

was admitted before the jury.


Standard of Review


       When dealing with issues regarding the admission of evidence, the standard of

review is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.

2000). A trial court abuses its discretion only when the reviewing court can say with

confidence that no reasonable perception of the matter under consideration could have

yielded the decision made by the trial court. See Montgomery v. State, 810 S.W.2d

372, 391 (Tex.Crim.App. 1990) (op. on reh'g). If the trial court's decision is correct on




                                            10
any theory of law applicable to the case, the decision will be sustained. See State v.

Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).


Analysis


        Evidence is relevant if it tends to make the existence of a fact of consequence

more or less probable than it would be without the evidence. See TEX. R. EVID. 401.5

Relevant evidence is generally admissible unless otherwise provided. See Rule 402.


        The evidence at issue allegedly portrayed the scene of the shooting as it

occurred and immediately after it occurred. However, from our review of the exhibit, it is

difficult to see how the picture in question contributed anything of consequence toward

proof of any of the elements of the offense. At best, the picture was simply cumulative

of the testimony of the witness. If we assume the evidence had such limited relevancy

that it should not have been admitted, we must make further inquiry about the harm to

appellant from the admission of the exhibit.


        An erroneous admission of evidence is judged for harm under the non-

constitutional harm analysis of Texas Rule of Appellate Procedure 44.2(b). See Russell

v. State, 155 S.W.3d 176, 181 (Tex.Crim.App. 2005). In conducting such an analysis,

we may disregard the error if, after examining the entire record, we have a fair

assurance that the error did not influence the jury, or had but a slight effect. See

Guevara v. State, 152 S.W.3d 45, 53 (Tex.Crim.App. 2004).




        5
            Further reference to the Texas Rules of Evidence will be by reference to “Rule
___.”

                                             11
       A review of the record reveals that the events depicted in State’s exhibit 58 were

testified to by several other witnesses, including Arceneaux. Specifically, appellant was

identified by another participant in the shooting.      The victim’s condition after the

shooting was described by several witnesses. The surveillance videos displayed the

actions of appellant and the other participants. The appellant confessed to being the

shooter.      Nothing in the record indicates that the State unduly emphasized State’s

exhibit 58.


       Thus, from our review of the entire record, we are assured that the admission of

State’s exhibit 58 did not influence the jury, or, at most, had a very insubstantial

influence in their returning a verdict against appellant. Id. Therefore, we find that the

admission of said exhibit did not affect appellant’s substantial rights. Id. Accordingly,

the error in admission of the exhibit was harmless and will be disregarded. See Rule

44.2(b). Appellant’s third issue is overruled.


                                 Mandatory Life Sentence


       Appellant’s fourth and fifth issues contend that the conviction is invalid because

the imposition of a mandatory life sentence without parole violates the Eighth

Amendment of the United States Constitution (issue four) and Article 1, Sections 13 and

15, of the Texas Constitution (issue five) because such an “automatic” sentence denied

appellant his right to an individualized sentence.


       First, the record does not include any objection during the trial to the application

of the statute governing punishment for capital murder when the State waives the death

penalty. See TEX. PENAL CODE ANN. § 12.31(a). Thus, it appears that appellant’s claim,


                                            12
which we read to be attacking the sentencing scheme as being applied to appellant

under a disproportionate sentence analogy, is an “as applied” attack against the statute

as opposed to a “facial” challenge against the statute.6 Appellant has failed to preserve

this objection for our review. Rule 33.1(a)(1)(A). The inaction of appellant at trial leaves

the Court with nothing to review.7 Accordingly, appellant’s fourth and fifth issues are

overruled.


                                           Conclusion


       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                                        Mackey K. Hancock
                                                             Justice


Publish.




       6
         Even if we viewed the issues as being a facial attack against the statute,
appellant’s failure to object at trial would have forfeited his issues. See Karenev v.
State, 281 S.W.3d 428, 434 (Tex.Crim.App. 2009).
       7
        Even were we to accept that appellant had no requirement to object at trial, the
decided case law is against appellant and we would not sustain his fourth and fifth
issues. See Sierra v. State, 157 S.W.3d 52, 64-65 (Tex.App.—Fort Worth 2004), aff’d,
218 S.W.3d 85 (Tex.Crim.App. 2007).

                                            13
