                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-08-360-CR


FREDERICK DEW AYNE                                                     APPELLANT
MALONE A/K/A FREDERCK
DEW ANGE MALONE

                                            V.

THE STATE OF TEXAS                                                           STATE

                                        ------------

           FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

      A jury convicted Appellant Frederick Dewayne Malone a/k/a Frederck

Dewange Malone of capital murder, and, the State having waived the death penalty

option, he received an automatic life sentence. In five points, Appellant contends

that the evidence is legally and factually insufficient to support his conviction and

complains about the admission of his oral confession and the State’s closing



      1
           See Tex. R. App. P. 47.4.
argument at the guilt-innocence phase. Because we hold that the evidence is legally

and factually sufficient to support Appellant’s conviction and that the trial court did

not err, we affirm the trial court’s judgment.

                                        Facts

      Mrs. Eloida Marin testified that on December 21, 2006, she and her husband,

Antonio, arrived in Fort W orth to visit with their son, Ruben, and his family. On

December 30, after 8:00 p.m., Mrs. Marin, Antonio, Ruben, and Ruben’s two children

were sitting in the living room when Mrs. Marin heard a knock on the door. Ruben

got up to answer the door. He did not see anyone through the peephole. He

opened the door about six inches, and then two young African-Americans slammed

it open and forced him to the floor. Mrs. Marin described the men as each having

“a little bit of beard” and stated that one was tall and the other one was short. She

clarified her earlier testimony about the two men slamming the door open, explaining

that the short one had come in first and had taken Ruben to the ground. The tall one

had pointed a gun at her husband and her. By this time, she and her husband had

stood up. Mrs. Marin testified that the first shot occurred when the short man shot

Ruben; the tall man was pointing his gun at her husband and her. Her husband

moved to help Ruben, and then the tall man shot her husband. But neither Mrs.

Marin nor her husband realized that he had been shot until the paramedics had

removed Ruben from the apartment. The paramedics took both men to the hospital,

where Antonio later died.


                                           2
      Mrs. Marin testified that she did not identify the two intruders from a photo

spread. In court, she tentatively identified Appellant as the person who had shot her

husband, stating that she was not sure.

      On cross-examination, Mrs. Marin indicated that she had initially told the police

that the short person had shot both her husband and her son. She also admitted

when asked, “And do you remember indicating or telling Ms. Reyes that you thought

maybe the tall one shot your husband, but then you later told Ms. Reyes that you

didn’t see who shot your husband because you were nervous and your eyes were

on your son?”, that “[she] always ha[d] said that, [but had] recalled very well that the

taller one shot [her] husband.”

      Ruben Marin testified that on December 30, he arrived home about 8:00 or

8:30 p.m. He had more than $1,000 in his wallet. He was sitting on the love seat

close to the front door, talking with his parents and children, when he heard a knock

on the door. He looked through the peephole and saw an unfamiliar African-

American man. Ruben then opened the front door about three or four inches to see

what the stranger wanted. The stranger tried to get into the apartment. Ruben tried

to close the door, but the stranger put his foot down and wedged his hand in to

prevent the door from closing. Ruben recalled that the stranger had a medium-sized

black revolver in his hand. Ruben tried to take the gun away from the stranger.

Ruben testified that they struggled for the gun but that he let go when he realized

that his children were nearby. Ruben testified that during the struggle, he noticed


                                           3
that another unfamiliar African-American man had come in and had moved toward

his parents. Ruben testified that the second man had a silver gun, like a square, and

that the second man pointed the gun at the elderly Marins. Ruben testified that

when the second man came in, the first man shot Ruben in the side. The first man

then ripped Ruben’s left pocket, removing a magazine, and took Ruben’s wallet from

his right pocket. Ruben’s dad moved closer to Ruben to help him, and then Ruben

heard but did not see another shot. The second intruder was beside Ruben’s dad,

and the first intruder was still behind Ruben, near the front door, when Ruben heard

the shot. Ruben testified that the second man was taller than the first, with a fuller

face, and that the second man had a shaved head.

      Detective Billy W . Randolph testified that a few days after the Marin robbery,

he began to suspect Desmond Brooks, a resident of Ruben Marin’s apartment

complex who had committed a robbery earlier in December. Detective Randolph

testified that Desmond Brooks was about five feet, six inches tall or five feet, seven

inches tall and weighed about 160 pounds. Detective Jose Hernandez testified that

Brooks was five feet, seven inches tall and weighed 140 pounds. The police

arrested Brooks on outstanding warrants and interviewed him for several hours.

Detective Randolph testified that during the Brooks interview, Appellant’s name

came up (the detective testified that Brooks said that Appellant was his next-door

neighbor), and Brooks also told the police where to find evidence of the Marin

robbery.


                                          4
      Officer Bill Yeager testified that he participated in the search of Apartment 229

at Ruben’s apartment complex and collected two weapons, ammunition, and

personal effects. Relying on information gleaned from the Brooks interview, the

police found one of the weapons, a firearm, in a sock in a laundry basket in the

bedroom closet. Officer Yeager also found a wallet in the air conditioning unit. At

trial, Detective John Livesay identified the firearm found in the sock, State’s Exhibit

37, as a .22 caliber revolver, and he identified the wallet as Ruben’s.

      Detective Livesay searched the car of Brooks’s girlfriend. He found receipts

showing that Appellant rented Apartment 228, the apartment next to Brooks’s, which

Detective Livesay confirmed with the apartment’s management. Officer Yeager also

searched Apartment 228.

      Appellant was subsequently arrested for the Marin robbery in Austin County.

Detectives Hernandez, Livesay, and Randolph went to that county to interview

Appellant, who Randolph testified was about six feet, two inches tall and weighed

about 175 pounds. All three detectives identified Appellant at trial. During the

interview, which was recorded, Appellant admitted to knowing that his cousin,

Brooks, was going to rob someone, agreeing to be Brooks’s driver, entering the

apartment with a gun at his side, and ushering the two wounded men and the elderly

woman into the bathroom after the robbery and shootings. He denied shooting

anyone and claimed that he had purchased the .22 recovered upon his arrest from

Brooks after the robbery.     He also stated that he was a psychopath, saw a


                                          5
psychiatrist, and was on Trazadone and Restidol. The interview took place in the

wee hours of the morning, and Appellant yawned occasionally during the two–three

hour interview.

      After the interview, Detective Randolph took custody of Appellant’s

possessions and personal effects with which he had been arrested, including a pistol

that was sealed in a bag. Detective Randolph did not open the bag. Detective

Livesay testified that the pistol recovered from Appellant was a .22 caliber.

      In comparing the .22 caliber pistol found at Brooks’s apartment and the .22

caliber pistol recovered when Appellant was arrested, Detective Livesay testified that

Appellant’s gun had a longer barrel (four inches) and a nine-shot capacity. The

revolver found in Brooks’s apartment had about a two-and-a-half-inch barrel.

Michael W ard, senior forensic scientist in the firearms and tool mark unit of the Fort

W orth Police Department’s crime laboratory, testified that the bullet recovered from

the elder Mr. Marin’s body, State’s Exhibit 31C, had been fired from State’s Exhibit

52, the .22 seized upon Appellant’s arrest. W ard also testified that the same bullet

was not fired from State’s Exhibit 50, the .22 retrieved from Brooks’s apartment.

      A jailhouse informant also testified that Appellant admitted to participating in

the crime, but the informant’s report of some of the details of the offense, such as

the location of the bullet wounds on the Marin men, differed from the forensic

evidence admitted at trial.




                                          6
                            Legal and Factual Sufficiency

      In his first point, Appellant challenges the legal sufficiency of the evidence

supporting his conviction. The indictment alleges that Appellant intentionally caused

the death of Antonio Marin by shooting him with a firearm in the course of committing

or attempting to commit the offense of robbery of Antonio Marin or Ruben Marin.

The jury charge includes a charge on the law of parties.

      Section 19.03(a) of the penal code provides in relevant part that “[a] person

commits [capital murder] if the person commits murder as defined under Section

19.02(b)(1) and . . . the person intentionally commits the murder in the course of

committing or attempting to commit . . . robbery.” 2 Section 19.02(b)(1) of the penal

code provides that a person commits murder if he “intentionally or knowingly causes

the death of an individual.” 3 Section 29.02 of the penal code provides in relevant

part that a person commits robbery “if, in the course of committing theft . . . and with

intent to obtain or maintain control of the property, he . . . intentionally, knowingly,

or recklessly causes bodily injury to another.” 4

      Appellant contends that Brooks committed the offense and that he was just

Brooks’s pawn and has always maintained his innocence. But Appellant’s own

statement is evidence that at a minimum, he agreed to be the getaway driver and


      2
           Tex. Penal Code Ann. § 19.03(a) (Vernon Supp. 2009).
      3
           Id. § 19.02(b)(1) (Vernon 2003).
      4
           Id. § 29.02(a)(1).

                                           7
then escalated his participation by entering the apartment carrying a loaded gun and

by ushering the adult Marins into the bathroom after the robbery and shootings.

Applying the appropriate standard of review, 5 we hold that the evidence is legally

sufficient to support Appellant’s conviction for capital murder.         W e overrule

Appellant’s first point.

       In his second point, Appellant contends that the evidence is factually

insufficient to support his conviction for capital murder. Again, though, his own

statement provides evidence of his culpability in the offense, as does the ballistics

match of the bullet taken from the elder Marin’s body and the .22 seized upon

Appellant’s arrest. Applying the appropriate standard of review, 6 we hold that the

evidence is factually sufficient to support Appellant’s conviction for capital murder.

W e overrule his second point.

                              Appellant’s Confession

       In his third point, Appellant contends that the trial court erred by denying his

motion to suppress his oral statement taken in violation of article 38.22 of the code

of criminal procedure, claiming that he did not understand the warnings under article


       5
        See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) (both providing
standard for reviewing the legal sufficiency of the evidence).
       6
         See Steadman v. State, 280 S.W .3d 242, 246–47 (Tex. Crim. App. 2009);
Lancon v. State, 253 S.W .3d 699, 704 (Tex. Crim. App. 2008); Watson v. State, 204
S.W .3d 404, 414–15, 417 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W .3d 1,
8–9, 12 (Tex. Crim. App. 2000) (all providing standard for reviewing the factual
sufficiency of the evidence).

                                           8
38.22, that he would not have given a statement had he understood that he could

terminate the interview, that he was on medication that prohibited him from

understanding the interview process, and that his will was overborne. He also

contends that “[t]he officer used a method to induce . . . [him] to give a statement

that was in violation of the due process clause of the State and Federal

Constitutions” and that the statement was involuntary, violating Article 38.21.

      Article 38.21 of the code of criminal procedure provides that “[a] statement of

an accused may be used in evidence against him if it appears that the same was

freely and voluntarily made without compulsion or persuasion, under the rules

hereafter prescribed.” 7 Article 38.22, section three of the code of criminal procedure

provides,

      (a) No oral . . . statement of an accused made as a result of custodial
      interrogation shall be admissible against the accused in a criminal
      proceeding unless:

            (1) an electronic recording, which may include motion picture,
      video tape, or other visual recording, is made of the statement;

             (2) prior to the statement but during the recording the accused is
      given the warning in Subsection (a) of Section 2 above and the
      accused knowingly, intelligently, and voluntarily waives any rights set
      out in the warning;

            (3) the recording device was capable of making an accurate
      recording, the operator was competent, and the recording is accurate
      and has not been altered;

               (4) all voices on the recording are identified; and

      7
           Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005).

                                            9
            (5) not later than the 20th day before the date of the proceeding,
      the attorney representing the defendant is provided with a true,
      complete, and accurate copy of all recordings of the defendant made
      under this article.

      (b) Every electronic recording of any statement made by an accused
      during a custodial interrogation must be preserved until such time as
      the defendant’s conviction for any offense relating thereto is final, all
      direct appeals therefrom are exhausted, or the prosecution of such
      offenses is barred by law.

      ....

      (e) The courts of this state shall strictly construe Subsection (a) of this
      section and may not interpret Subsection (a) as making admissible a
      statement unless all requirements of the subsection have been satisfied
      by the state, except that:

               (1) only voices that are material are identified; and

            (2) the accused was given the warning in Subsection (a) of
      Section 2 above or its fully effective equivalent. 8

Appellant does not provide any specific arguments or analysis to support his

contentions, nor does he point to any specific violations of these statutes.

      The trial court found that

•     Appellant was “advised of the statutory warnings as required by Article 38.22
      . . . [and that he] freely, voluntarily, intelligently, and knowingly waived those
      rights and agreed to answer questions”;

•     Appellant never requested to have a lawyer present or to terminate the
      interview;

•     “the Court was not convinced that [Appellant’s yawning] had anything to do
      with any type of inability to comprehend what was going on”; and

      8
           Id. art. 38.22.

                                           10
•     Appellant “was lucid throughout the interview and was able to address and to
      answer questions or respond in an appropriate manner to the questions.”

The trial court concluded as a matter of law that all the requirements of article 38.22

had been met.

      Our review of Appellant’s statements shows that it was taken in compliance

with articles 38.21 and 38.22 as well as the state and federal constitutions.

Appellant was Mirandized, and his statement was recorded. All speakers were

identified. Appellant told the questioning officers that he was on Trazadone and

Restidol, that he was a psychopath, that he saw a psychiatrist, and that the medicine

helped him relax. He also yawned occasionally during the interview, which was

taken in the early morning hours. But nothing in our review of his statement, or the

other evidence in the record, for that matter, raises an issue of any incompetence

of Appellant or any failure by him to understand the interview proceedings. 9 Further,

while we note that the officers used permissible trickery, deceit, and other persuasive

techniques in their questioning of defendant, our review of the recorded interview

does not show that any of their actions appear calculated to produce an untruthful

confession or one that is offensive to due process, 10 and Appellant does not

otherwise point to any such actions.       W e cannot conclude that his will was




      9
           See Lucas v. State, 791 S.W .2d 35, 62 (Tex. Crim. App. 1989).
      10
            See Creager v. State, 952 S.W .2d 852, 856 (Tex. Crim. App. 1997).

                                          11
overborne.11 Based on the applicable standard of review, 12 we hold that the trial

court properly denied Appellant’s motion to suppress. W e overrule Appellant’s third

point.

         In his fourth point, Appellant contends that the trial court abused its discretion

by overruling his rule 403 objection to the admission of his oral statement. Rule 403

provides that “[a]lthough relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or needless presentation

of cumulative evidence.” 13 A trial court is not required to perform a balancing test in

a formal hearing on the record. 14 Given the inability of the Marins to positively

identify Appellant as one of the robbers and the risk that the jailhouse informant’s

mangling of some of the details of the offense as compared to the forensic testimony

could have made him appear less than credible to the jury, as could the fact that he

was allowed to plead to a lesser offense in an unrelated case in exchange for his

testimony against Appellant, Appellant’s statement was highly probative and was



         11
               See id.
         12
         See Amador v. State, 221 S.W .3d 666, 673 (Tex. Crim. App. 2007);
Estrada v. State, 154 S.W .3d 604, 607 (Tex. Crim. App. 2005); Johnson v. State, 68
S.W .3d 644, 652–53 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W .2d 85, 89
(Tex. Crim. App. 1997).
         13
               See Tex. R. Evid. 403.
         14
               Williams v. State, 958 S.W .2d 186, 195–96 (Tex. Crim. App. 1997).

                                             12
crucial to the State’s case. Further, as we held above, Appellant does not point to

any improper actions by the officers in taking his statement. Accordingly, the trial

court could have properly decided that the probative value of Appellant’s statement

was not substantially outweighed by the danger of unfair prejudice. W e overrule

Appellant’s fourth point.

      In his fifth point, Appellant contends that the trial court erred by denying his

motion for mistrial when the prosecutor commented that a composite sketch looked

like Appellant to him. At trial, Appellant objected that the argument was “outside the

record” and “improper.” Appellant argues on appeal that the argument was improper

because it stated the prosecutor’s personal opinion and because the prosecutor was

not subject to direct or cross-examination. The trial court sustained his objection,

instructed the jury to disregard the improper argument, and denied Appellant’s

motion for mistrial.

      W hen a trial court sustains an objection and instructs the jury to disregard but

denies a defendant’s motion for a mistrial, the issue is whether the trial court abused

its discretion in denying the mistrial. 15 Only in extreme circumstances, when the

prejudice caused by the improper argument is incurable, that is, “so prejudicial that

expenditure of further time and expense would be wasteful and futile,” will a mistrial




      15
            Hawkins v. State, 135 S.W .3d 72, 76–77 (Tex. Crim. App. 2004).

                                          13
be required. 16 In determining whether a trial court abused its discretion in denying

a mistrial, we balance three factors: (1) the severity of the misconduct (prejudicial

effect), (2) curative measures, and (3) the certainty of conviction absent the

misconduct. 17 Given the trial court’s prompt instruction to disregard the prosecutor’s

comment, Appellant’s confession, and the ballistics match between his .22 and the

bullet taken from Antonio Marin’s body, we cannot conclude that the trial court

abused its discretion by denying a mistrial. W e overrule Appellant’s fifth point.

                                     Conclusion

      Having overruled Appellant’s five points, we affirm the trial court’s judgment.




                                                     LEE ANN DAUPHINOT
                                                     JUSTICE

PANEL: DAUPHINOT, GARDNER, and W ALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 11, 2010




      16
         Id.; see also Simpson v. State, 119 S.W .3d 262, 272 (Tex. Crim. App.
2003), cert. denied, 542 U.S. 905 (2004).
      17
        Hawkins, 135 S.W .3d at 77; Mosley v. State, 983 S.W .2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

                                          14
