                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00218-CR



         KIVEAN DESHAI COFFEY, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 276th District Court
                Morris County, Texas
              Trial Court No. 10,751CR




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                            OPINION
        Kivean Deshai Coffey was found guilty by a jury of aggravated sexual assault and was

sentenced to seventy-five years’ imprisonment. On appeal, 1 Coffey argues that the trial court

erred (1) in allowing the State to file a notice of intent to seek enhanced punishment after voir

dire, and (2) in overruling his motion to suppress his recorded statement. We find that the

State’s notice of intent to seek enhancement was timely filed and that the error in denying

Coffey’s motion to suppress his recorded statement was harmless. Consequently, we affirm the

trial court’s judgment.

I.      Notice of Intent to Seek Enhancement

        The right to notice of the State’s intention to use prior convictions as enhancements is

rooted in due process. Villescas v. State, 189 S.W.3d 290, 293 (Tex. Crim. App. 2006). Thus,

prior convictions used as enhancements must be pled in some form so the defendant has an

opportunity to prepare a defense to them. Pelache v. State, 324 S.W.3d 568, 577 (Tex. Crim.

App. 2010); Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997).

        The State filed notice of its intent to seek an enhancement of Coffey’s range of

punishment based on an April 14, 2008, juvenile conviction for burglary of a habitation. 2 The

notice was filed after the jury had been selected, but prior to Coffey pleading to the indictment.




1
 In our case number 06-13-00219-CR, Coffey also appeals another conviction of aggravated sexual assault on the
same grounds.
2
 The notice of enhancement incorporated the judgment from Coffey’s 2008 conviction, which was rendered by the
76th Judicial District Court of Morris County, Texas.

                                                      2
Coffey argued that the State’s notice of intent to seek enhancement was untimely and constituted

a violation of his due process rights. 3

            Coffey claimed neither that he was surprised by the enhancement allegations, nor that he

required a continuance to better prepare his defense. 4 Coffey’s counsel stated,

            I did know about the prior juvenile [offense], of course, because I represented
            [Coffey during these proceedings]. And [the State] did give me notice that they
            may use it at the trial, but they’ve never given me any notice that they were going
            to try to enhance punishment until this morning when they handed me the motion.

The State responded that Coffey could not claim to be surprised by the notice because the State

produced a witness list containing the name of his juvenile community supervision officer. The

trial court overruled Coffey’s objection, specifically relying on the fact that Coffey’s trial

counsel had also represented Coffey in the 2008 prosecution.

            “[T]he determination of whether proper notice of enhancements was given does not

require that notice be given within a particular period of time before trial or before the guilt

phase is completed.” Pelache, 324 S.W.3d at 577. “[W]hen a defendant has no defense to the

enhancement allegation and has not suggested the need for a continuance in order to prepare one,

[even] notice given at the beginning of the punishment phase satisfies” due process requirements.

Villescas, 189 S.W.3d at 294–95; Pelache, 324 S.W.3d at 576–77 (finding post-guilt, pre-
3
 Coffey argues that he had the right to be advised that a greater penalty was available for the charged offense.
Aggravated sexual assault is a first degree offense. TEX. PENAL CODE ANN. § 22.021(e) (West Supp. 2013). The
2008 juvenile conviction increased the minimum confinement period from five to fifteen years. TEX. PENAL CODE
ANN. § 12.42(c)(1) (West Supp. 2013). However, the trial court’s punishment charge informed the jury that the
minimum period of confinement was five—not fifteen—years and also allowed the jury to assess a term of
community supervision if it found that Coffey was not previously convicted of a felony offense. The State appears
to suggest that it withdrew its notice of enhancement because it failed to object to the jury charge. There is no
express withdrawal of the notice of enhancement in the record, and we will not imply a withdrawal in light of the
trial court’s written findings on this matter. The State’s arguments are better suited for a harm analysis.
4
    Coffee also argues that the right to enhance his punishment was waived.
                                                            3
punishment-phase notice of State’s intent to enhance punishment satisfied due process

requirements).

       In this case, Coffey presented no defense to the enhancement allegation and did not seek

a continuance to prepare a defense.          Therefore, due process was satisfied when the State

provided notice of intent to enhance Coffey’s punishment prior to his arraignment. Accordingly,

we overrule Coffey’s first point of error.

II.    Admission of Coffey’s Recorded Statement Was Harmless Error

       A.        Factual and Procedural Background

       Coffey’s second point of error stems from the trial court’s mid-trial ruling on his motion

to suppress his recorded statement. Prior to the hearing on the motion to suppress, the victim had

already testified, describing her violent rape and positively identifying Coffey as the perpetrator

of the sexual assault. The victim met Coffey during a gathering at the home of her friends, Josh

and Adrianna White. The victim and Coffey were both invited to spend the night at the Whites’

home. The victim testified,

       [T]hat night after I went to sleep, [Coffey] came in the room, and I woke up, and
       he was looking out the window. And I told him to leave, and that happened
       another time. And then the third time when he came in, I was asleep, and I heard
       him come in. And he jumped on top of me and started hitting me in the face
       repeatedly. And then he kind of threw me onto the floor, and I tried to call for
       help. And he came from behind me and choked me. And then he finally told me
       he’d let me go if I wouldn’t scream. And if I did, he would kill me. And then I
       stood up, and he told me to turn the lamp on that was beside the bed. And then he
       told me to take my clothes off. And then he made me lay [sic] down on the bed,
       and that’s when he raped me. And then he made me perform oral sex on him.
       And then after he was done with all that, he left the room. . . . And then
       periodically he would come back into the bedroom. . . . And at one point he found
       a pair of scissors and a knife and handed it to me and basically said that if I
       thought I could do anything to him, to go ahead and do it, but it wouldn’t be
                                                   4
       worth it because he had a gun. And he was wearing -- at that time when he came
       in, he was wearing a tank top and sweats. And at that time I could see the outline
       of what looked to me like a handgun in his waistband of his pants. And at a
       different time he came in the room and told me that he was in a gang, and if
       anybody -- if I told anybody, that they would all kill me. And that proceeded to
       go on until about 9:00 o’clock in the morning when he finally left.

Although Josh and Adrianna were asleep in the same house, they did not hear any commotion

and were unable to come to their friend’s aid.

       In fact, when Josh found Coffey asleep on the living room couch, he offered to drive him

to the Relax Inn, a motel in Daingerfield. As soon as Josh returned from dropping Coffey off at

the motel, Adriana reported the victim’s rape to him. Josh described the victim’s gut-wrenching

state and the scene in his guest bedroom. He testified, “Her eye was swollen shut, her lip was

caught in her braces . . . . Her hair was stuck to her ear, glued by the blood. There was . . .

[b]lood all over the sheets, all over the pillows,” and she had bruises on her neck indicating that

she had been choked. Josh immediately called 9-1-1.

       Robbie Gray, a Sergeant with the Morris County Sheriff’s Department, testified that the

victim suffered extensive physical injury during the assault; she required immediate medical

care, including facial reconstructive surgery. The victim told the police that Coffey’s DNA

would be found on a black shirt that he left in her room and that Coffey stole her Samsung

Galaxy tablet and its charger after the sexual assault. Officer Stephen Blythe with the Lone Star

Police Department in Morris County, Texas, testified that police soon located Coffey at the

Relax Inn, found the victim’s tablet in Coffey’s motel room, and brought Coffey in for

questioning. Blythe took Coffey’s recorded statement at the Lone Star Police Department.

Blythe testified that he submitted a black shirt found at the crime scene and a buccal swab
                                                 5
obtained from Coffey during the recorded interview for DNA analysis. Coffey stipulated to the

chain of custody of the DNA samples. During the interview, Blythe also took photographs of

Coffey’s hands and the scratches on his forehead, which were admitted into evidence at trial

without objection.

           After the testimony and physical evidence referenced above was introduced, Coffey filed

a motion to suppress both the recorded statement and the buccal swabs that were taken during the

interview, claiming that the statement was involuntary because he never received proper

Miranda 5 warnings. At the hearing on the motion to suppress, Blythe testified that he orally read

a piece of paper containing Miranda warnings to Coffey prior to conducting his interrogation.

However, Blythe admitted that he did not read the warnings word-for-word and did not ask

Coffey specifically whether he wished to waive his rights. Blythe believed that Coffey affirmed

his understanding of Blythe’s oral admonishments by nodding his head up and down.

           In response to Blythe’s initial questioning, Coffey denied engaging in sexual conduct

with anyone on the morning of the victim’s rape and explained that he had simply found the

victim’s tablet on the ground. Blythe received no information of consequence until he stated

(1) that Coffey was being charged with aggravated sexual assault, (2) that Blythe was going to

conduct a buccal swab, (3) that Coffey’s DNA was going to be compared to a shirt found at the

scene of the rape, and (4) that Coffey needed to be honest. Thereafter, Coffey admitted that he

was at the Whites’ home with several other acquaintances and claimed that his acquaintances




5
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                  6
were having consensual sex with two women. Coffey told Blythe that he had consensual oral

sex with one of the women “[f]or like two seconds,” and denied that he hit either woman.

           During the interview, Coffey stated that he would not mind giving his DNA, provided

that Blythe also obtained DNA samples from the other people at the gathering.                               Prior to

obtaining the buccal swab, Blythe gave Coffey a written copy of his Miranda rights and obtained

Coffey’s signature that the rights were read to him and that he understood them. 6 Blythe also

informed Coffey that his entire interview was being recorded. He then passed Coffey a buccaal

swab and had Coffey collect a sample of his DNA from his cheek. Blythe testified that Coffey

never protested or interfered with his questioning. 7




6
 Miranda “indisputably requires a law enforcement agent to give the appropriate legal warnings before any
questioning or ‘discussion interview,’ not merely prior to signing a written statement after all the custodial
interrogation is complete.” Jones v. State, 119 S.W.3d 766, 774 n.16 (Tex. Crim. App. 2003) (citing Miranda, 384
U.S. at 445, 457, 465, 468, 474, 478).
7
    No search warrant was obtained prior to conducting the buccal swab. The trial court stated,

           I find and it was stipulated that there was a warrantless search conducted in order to get the DNA
           sample, the buccal swab, from Mr. Coffey. I do find that Mr. Coffey did not voluntarily consent
           to the taking of the buccal swab, the DNA sample. Because he didn’t voluntarily consent to it, a
           search warrant was required and it wasn’t given, and therefore the Court is going to exclude the
           DNA sample and evidence related to and which would be derived from the buccal swab.

However, shortly after receiving this favorable ruling, Coffey’s counsel informed the trial court that Coffey wanted
to “withdraw his objections to the DNA swabs not being voluntary or consensually taken from Officer Blythe during
the time the video was taken” and that Coffey did not plan “to object to the DNA experts testifying . . . in regard to
the DNA results of the buccal swabs taken . . . by Officer Blythe.” After admonishing Coffey about the matter, the
trial court accepted Coffey’s waiver of any objection to the DNA testimony. However, Coffey still objected to the
recorded statement being played for the jury on the ground that the statement was not voluntarily given.
                                                           7
         After hearing Blythe’s testimony and watching the recorded statement, the trial court

denied Coffey’s motion to suppress, ruling that “[t]he warnings were substantially correct and

the effective equivalent of the statutory warnings for video statements.” 8

         B.       Standard of Review

         We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion

and will not disturb that ruling so long as it is within the zone of reasonable disagreement.

Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011); Crain v. State, 315 S.W.3d 43,

48 (Tex. Crim. App. 2010); Hutchison v. State, 424 S.W.3d 164, 175 (Tex. App.—Texarkana

2014, no pet.). In reviewing such a ruling, we apply a bifurcated standard of review. Wilson v.

State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010); Carmouche v. State, 10 S.W.3d 323,

327 (Tex. Crim. App. 2000). “We approach our review with two standards, ‘giving almost total

deference to a trial court’s determination of historic facts and mixed questions of law and fact

that rely on the credibility of a witness, but applying a de novo standard of review to pure

questions of law and mixed questions that do not depend on credibility determinations.”’

Hutchinson, 424 S.W.3d at 175 (quoting Martinez, 348 S.W.3d at 922–23); see State v. Johnston,

336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Wilson, 311 S.W.3d at 458; Carmouche, 10

S.W.3d at 327; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

         At a suppression hearing, the trial judge is the sole trier of fact and exclusive judge of the

credibility of the witnesses and the weight to be given their testimony. St. George v. State, 237
8
 After finding that an accused was properly admonished of his Miranda and statutory rights, the trial court must also
find that the accused knowingly, intelligently, and voluntarily waived those rights prior to the admission of
statements made during a custodial interrogation. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(b) (West Supp.
2013). Here, the trial court found that Coffey’s statement was voluntarily given, but also submitted the issue of
voluntariness to the jury. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 7 (West Supp. 2013).
                                                         8
S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. A trial court’s ruling on a

motion to suppress will be affirmed if it is reasonably supported by the record and is correct

under any theory of law applicable to the case. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim.

App. 2009) (per curiam).

         C.       Required Warnings and Waiver of Rights

         “Under both the Federal constitutional standard and the Texas Confession Statute,

evidence obtained as a result of a custodial interrogation is inadmissible unless the State proves

the officer gave proper warnings and shows an affirmative waiver of rights by the accused.”

Hutchinson, 424 S.W.3d at 175 (footnotes omitted) (citing TEX. CODE CRIM. PROC. ANN. art.

38.22 (West Supp. 2013); Miranda, 384 U.S. at 444; Ramos v. State, 245 S.W.3d 410, 418 (Tex.

Crim. App. 2008)). 9 “Prior to any questioning, the person must be warned that he has a right to

remain silent, that any statement he does make may be used as evidence against him, and that he

has a right to the presence of an attorney . . . .” Miranda, 384 U.S. at 444.

         Article 38.22 of the Texas Code of Criminal Procedure precludes the use of oral

statements that result from custodial interrogation absent compliance with additional procedural

safeguards. TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2(a), 3(a). Specifically, the interrogator

must inform the accused that:



9
 The prosecution may not use statements stemming from the custodial interrogation of a defendant unless it
demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. Miranda,
384 U.S. at 444; Alvarado v. State, 853 S.W.2d 17, 20 (Tex. Crim. App. 1993). In order for the Miranda safeguards
to apply, there must be two showings: (1) the suspect must have been “in custody,” and (2) the police must have
“interrogated” the suspect either by express questioning or its functional equivalent. See Rhode Island v. Innis, 446
U.S. 291, 300–02 (1980); Jones v. State, 795 S.W.2d 171, 174 (Tex. Crim. App. 1990). Here, the State concedes
that the statements were made as the result of custodial interrogation.
                                                         9
                (1)     he has the right to remain silent and not make any statement at all
         and that any statement he makes may be used against him at his trial;

                  (2)    any statement he makes may be used as evidence against him in
         court;

                (3)    he has the right to have a lawyer present to advise him prior to and
         during any questioning;

                (4)    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; and

                  (5)    he has the right to terminate the interview at any time . . . .

TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2(a), 3.

         Unless the accused is given these admonishments or their “fully effective equivalent,” an

oral statement resulting from custodial interrogation is inadmissible. TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 3(e)(2).        “As long as the substance of the warnings are adequately

communicated, the failure to give the warnings precisely as set forth in Miranda does not

invalidate a subsequent confession.” Hutchinson, 424 S.W.3d at 175 n.7 (citing California v.

Prysock, 453 U.S. 355, 360–62 (1981); Clark v. State, 627 S.W.2d 693, 704 (Tex. Crim. App.

1982) (op. on reh’g)).

         The State first argues that Blythe substantially complied with the requirements in Article

38.22.    The transcript of the recorded statement included the following pre-interrogation

warnings given by Blythe: “You have the right to remain silent, anything you say can and will

be used against you in a court of law. You have the right to an attorney. If you can’t afford one,

one will be represented [sic] for you. You can decide at any time to exercise these rights and not

answer any of my questions.” These warnings substantially complied with all but the third

                                                   10
essential requirement enumerated in Article 38.22, Section 2(a). While Blythe informed Coffey

that he had the right to an attorney and that one would be “represented” to him, Blythe failed to

inform Coffey that he had the “right to have a lawyer present to advise him prior to and during

any questioning.” 10 See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)(3) (emphasis added).

        The United States Supreme Court wrote in Miranda,

        The circumstances surrounding in-custody interrogation can operate very quickly
        to overbear the will of one merely made aware of his privilege by his
        interrogators. Therefore, the right to have counsel present at the interrogation is
        indispensable to the protection of the Fifth Amendment privilege under the
        system we delineate today. Our aim is to assure that the individual’s right to
        choose between silence and speech remains unfettered throughout the
        interrogation process. . . . [T]he need for counsel to protect the Fifth Amendment
        privilege comprehends not merely a right to consult with counsel prior to
        questioning, but also to have counsel present during any questioning if the
        defendant so desires.

Miranda, 384 U.S. at 470–71. Blythe failed to inform Coffey of a right the United States

Supreme Court has characterized as “an absolute prerequisite to interrogation.” Id. at 471. We

find that Blythe failed to substantially comply with Miranda and the requirements of Article

38.22. See Prysock, 453 U.S. 356–60.

        Coffey also argues that he did not knowingly, intelligently, and voluntarily waive his

Miranda and statutory rights. Both Miranda and Article 38.22 require the State to prove two

distinct elements—that the prescribed warnings were given to the suspect and that the suspect

waived those rights. Miranda, 384 U.S. at 479, Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim.

App. 2010). Blythe was asked to confirm that, after giving Coffey the Miranda warnings,


10
 “[W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a
warning being given.” Miranda, 384 U.S. at 468.
                                                    11
                  Q.       he voluntarily assented by shaking his head affirmatively, yes –

                  A.       Yes.

                  Q.       -- that he understood and waived those rights?

                  A.       Yes, sir.

         The Texas Court of Criminal Appeals has acknowledged that a defendant is not required

to “explicitly” waive the Miranda rights, but must do so knowingly, intelligently, and

voluntarily. Joseph v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010). To make such a

determination we must review whether such relinquishment was the product of a free and

deliberate choice, with full awareness of the nature of the right being abandoned and

consequences of the decision to abandon it. Only if the totality of the circumstances surrounding

the interrogation reveals both an uncoerced choice and the requisite level of comprehension may

a court properly conclude that the Miranda rights have been waived. Id. We have determined

that the warnings did not adequately advise Coffey of his right to counsel prior to and during

interrogation; therefore, he could not have intentionally waived that right. 11

         Yet, the State argues that Blythe was not required to give the Miranda and statutory

warnings, relying on an exception in Article 38.22, which provides that the proscribed warnings

“shall not apply to any statement which contains assertions of facts or circumstances that are

found to be true and which conduce to establish the guilt of the accused, such as the finding of

11
  In a concurring opinion in Joseph, Judge Cochran noted a “rising trend in which Texas law-enforcement officers
fail to explicitly ask a suspect if he is willing to give up his Miranda rights and speak to them.” Joseph, 309 S.W.3d
at 28–29 (Cochran, J., concurring). Judge Cochran explains that the prosecution’s burden is great when the waiver
is not express. “Thus, law-enforcement officers are well advised to expressly ask a suspect to waive his Miranda
rights so as to avoid later, protracted litigation and the very real possibility that a suspect’s statement must be
excluded because the totality of the circumstances are insufficient to meet the State’s ‘heavy burden’ to show an
implied waiver.” Id. at 30 (Cochran, J., concurring).
                                                         12
secreted or stolen property . . . .” See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(c). The State

argues that this exception should apply because Coffey’s statements obtained during the

interview led them to the victim’s stolen tablet computer charger.

       First, because Section 3(c) only applies to the statutory warnings of Article 38.22,

Miranda warnings were still required even if Section 3(c) were invoked by the facts of this case.

Robertson v. State, 871 S.W.2d 701, 714 (Tex. Crim. App. 1993); see Perillo v. State, 758

S.W.2d 567, 575 (Tex. Crim. App. 1988). Second, the State’s argument that Section 3(c) applies

is simply unsupported by the record.

       In an attempt to demonstrate Section 3(c)’s applicability, the State claims, “[Coffey]

informed the police during his interview that the charger to the stolen tablet was still in

Daingerfield at the motel.” The State continues, “The presence of whereabouts of the charger

was unknown until defendant revealed during his video statement that the charger was still at the

Daingerfield motel.” Contrary to the State’s assertions, Coffey claimed that the charger that was

in his motel room was his charger, not the charger for the tablet computer that he allegedly found

on the ground. Further, another officer plainly told Blythe during the interview, “[T]here’s a

charger for [the tablet] in his room.” Coffey’s statements did not assert facts that were later

found to be true and did not lead officers to the allegedly secreted or stolen property; the charger

had already been found. Therefore, the Section 3(c) exemption does not apply.

       Because Coffey was not provided with the required Miranda and statutory warning that

he had the right to have an attorney present during questioning and could not have waived that




                                                13
right knowingly, intelligently, and voluntarily, the recorded statement was inadmissible. We

now address whether the error in admitting the statement was harmful.

       D.      Harm

       In a criminal case, the erroneous denial of a motion to suppress a statement taken in

violation of Miranda is constitutional error subject to review under the standard set forth in Rule

42.2(a) of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 44.2(a); Jones v. State,

119 S.W.3d 766, 777 (Tex. Crim. App. 2003). Reversal is required unless we can determine,

beyond a reasonable doubt, that the failure to suppress Coffey’s statement did not contribute to

the jury’s verdict. TEX. R. APP. P. 44.2(a); see Snowden v. State, 353 S.W.3d 815, 818 (Tex.

Crim. App. 2011); Jones, 119 S.W.3d at 777.

       The emphasis of a harm analysis pursuant to Rule 44.2(a) should not be on the propriety

of the outcome of the trial. Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007). “[T]he

question for the reviewing court is not whether the jury verdict was supported by the evidence.

Instead, the question is the likelihood that the constitutional error was actually a contributing

factor in the jury’s deliberations in arriving at that verdict.” Id. In reaching that decision, we

may consider (1) whether the recorded statement was cumulative of other evidence, (2) the

importance of the recorded statement to the State’s case, (3) the probable weight a juror would

place upon the recorded statement, (4) the presence or absence of evidence corroborating or

contradicting the recorded statement on material points, and (5) the overall strength of the

prosecution’s case. See id.; Jones, 119 S.W.3d at 778.




                                                14
       “In situations where a recording is improperly admitted, yet the recording is cumulative

of . . . properly admitted live testimony on the same issue, courts often disregard the error . . . .”

Land v. State, 291 S.W.3d 23, 29 (Tex. App.—Texarkana 2009, pet. ref’d). “Redundancy from

properly admitted or nonchallenged evidence does not cure or moot the original error. It is,

however, a consideration in our harm analysis.” Id. (citing Matz v. State, 14 S.W.3d 746, 747

(Tex. Crim. App. 2000)).

       Here, the State continued Blythe’s direct examination after it played the recorded

statement. During the examination, Blythe testified that Coffey (1) initially denied knowing the

victim, (2) initially denied having sexual relations with anyone during the morning of the

victim’s attack, (3) later admitted that his acquaintances were involved, (4) admitted that he had

consensual oral sex with the victim, (5) denied beating the victim, (6) admitted that he had

injuries to his hands, arms, elbow, and scratches on his forehead, and (7) claimed that the injuries

on his body were caused by a fall he sustained after getting drunk and losing his balance.

       Coffey complained of the admission of the substantive statements he made during the

interview. Blythe’s testimony, admitted without objection, highlighted the important substantive

statements made by Coffey during his interview and, thus, was cumulative of the recorded

statement. Moreover, (1) the recorded statement was not essential to the State’s case because it

did not contain a confession of the alleged crime, (2) because the statement contained no

confession, the probable weight a juror would have placed it would have been slight, (3) the jury

had already heard the testimony of the victim and Josh White identifying Coffey as the

perpetrator, (4) photographs suggesting that Coffey had been involved in a recent struggle were

                                                 15
also admitted without objection, (5) the jury later learned that the DNA analysis of samples

collected from the black shirt and from underneath the victim’s fingernails failed to exclude

Coffey as a contributor of the DNA, and (6) overall, the State’s case against Coffey was strong.

        Here, we are confident, beyond a reasonable doubt, that the admission of Coffey’s

recorded statement did not contribute to the conviction. Scott, 227 S.W.3d at 690. Therefore, we

find that the error in admitting Coffey’s recorded statement was harmless and overrule Coffey’s

last point of error.

III.    Conclusion

        The judgment of the trial court is affirmed.




                                              Jack Carter
                                              Justice

Date Submitted:        May 8, 2014
Date Decided:          June 13, 2014

Publish




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