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


                  No. 06-14-00029-CR



          MARGARET SUE RUFF, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 196th District Court
                 Hunt County, Texas
                Trial Court No. 28910




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                         OPINION
       After Margaret Sue Ruff was convicted by a Hunt County jury of robbery, the trial court

sentenced her to ten years’ confinement. She has appealed, complaining that a video recording

of the robbery was improperly admitted, that statements she made to police did not constitute

admissible evidence because she was not administered proper warnings before giving the

statements, and that she did not receive effective assistance of counsel at trial. We find no merit

in her claims of error and affirm the action of the trial court.

       The robbery occurred at a convenience store in Greenville, Texas, run by Noor Ali

Mukhida, who was familiar with Ruff (whom he knew as Peggy) because she had been a regular

customer of his for years. On the afternoon of New Year’s Eve 2012, a woman entered the

convenience store wearing a cap and a “do-rag” and carrying what appeared to be a gun. The

woman demanded that Mukhida hand over money from the cash register and a drawer under the

counter. Although the appearance of the robber was partially obscured by the cap and do-rag,

Mukhida was able to see her gold tooth, which led him to recognize Ruff as the robber. At some

point during the robbery, Mukhida observed “red things” on the gun and considered it might not

be a genuine firearm. Steeling himself to the possibility the robber might in fact have a real gun,

Mukhida picked up a large flashlight and began to attack the robber, chasing her outside the

store. Outside the store, a vehicle with another woman inside it was waiting to retrieve the

robber. The vehicle’s driver yelled to the robber to shoot Mukhida; even so, Mukhida slammed

the vehicle’s windshield with the flashlight, apparently smashing it.




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         Investigating police officers found an empty vehicle with a smashed windshield a few

blocks away from the convenience store; the vehicle’s registration revealed it to belong to Ruff.

Ruff herself was later located at one of her relative’s house; when located, Ruff bore at least one

laceration on her forehead.           When Greenville police officer Greg Hughes questioned her

whereabouts at the time of the robbery, Ruff said she had gone to the store to confront Mukhida

about a friend of Ruff’s whom Ruff alleged that Mukhida had been paying for sex. Hughes did

not recall Ruff mentioning anything at that time about having given birth to a child sired by

Mukhida. However, when Detective Jaimie Fuller interviewed Ruff three days later, Ruff said

that at some earlier time, Mukhida had impregnated Ruff and that the resulting child had died

while still a small infant. 1 Ruff said she went to talk to Mukhida because she heard that “he

was . . . talking disrespectful about me and certain individuals that he had slept with.” She said

she also wanted to talk to Mukhida about the deceased infant but before she could tell him the

child had died, Ruff said Mukhida began to yell at her, apparently believing that she was asking

for child support. According to Ruff, this confrontation escalated to the point that Mukhida

attacked her, chased her out of the store, and struck the windshield of her car. She said she

pulled her own money out of her pocket to show Mukhida she had no need for his money. Ruff

denied having carried a gun, but if she was shown to have had one, it was only because she

picked up anything she could find in the store to defend herself against Mukhida’s attack. She




1
 Ruff did not elaborate, but from the context of her testimony, it appears this birth happened several years before the
instant events. Ruff also said she became pregnant despite Mukhida’s use of a condom. Mukhida denied any such
relationship.
                                                          3
denied having attempted to rob Mukhida and maintained that she was not the robber who was

portrayed on the recorded store surveillance video.

        The store and its exterior were both monitored by surveillance cameras, and Mukhida

provided police with copies of the video recordings of the robbery as captured by these

surveillance cameras.

I.      Video Exhibit Properly Authenticated

        Ruff’s first complaint argues that the trial court erred in allowing the admission of the

video recordings. If there was a way for the surveillance system to make duplicates of its

recordings, Mukhida was unaware how to do so. Therefore, Mukhida’s daughter used a video

camera to record the display of the surveillance videos as they were played back on the store’s

monitors. This copy was provided to law enforcement. Ruff argues that because the video

exhibit was only a copy of one actually recorded on the store’s surveillance cameras, it lacked

the proper authentication to be admitted.

        “The requirement of authentication or identification as a condition precedent to

admissibility is satisfied by evidence sufficient to support a finding that the matter in question is

what the proponent claims.” TEX. R. EVID. 901(a). In Angleton v. State, 971 S.W.2d 65, 67

(Tex. Crim. App. 1998),2 the State offered an enhanced audio recording of the murder suspect

and his brother discussing the murder of a woman. Rule 901 was satisfied when, as a predicate

to its introduction, the sponsoring officer testified that (1) the officer had knowledge of the

contents of both the original and the enhanced copies of the recording, (2) there was nothing

2
 “The standard of review for a trial court’s ruling under one of the rules of evidence is abuse of discretion.”
Angleton, 971 S.W.2d at 67 (citation omitted).
                                                      4
audible on the enhanced copy that had not been audible on the original, (3) the officer was able

to identify the speakers because he had had conversations with both men, and (4) there were

distinctive elements of the conversation, such as a discussion about the killing of a woman and

referencing the specific code used to deactivate the woman’s home alarm system. Id. at 67.

       In the case before us, Mr. Mukhida testified he had multiple cameras monitoring both the

interior and exterior of his store. After the robbery, he watched the recording with the police.

Mukhida’s daughter later filmed the video as it played on the store’s surveillance monitor, and

Mukhida watched that copy. Mukhida said the copy, produced at trial, showed the same events

as the original. Some of the events of the robbery to which Mukhida testified can be seen on the

video exhibit (the robber coming into the store wearing a white baseball cap, exhibiting a gun,

going behind the counter, and taking money from the register and drawer). Two police officers

watched the surveillance video recording as it was shown on the store’s system and recognized

Ruff as the robber.

       Mukhida testified that he watched the copy that was offered and admitted into evidence

and that it accurately showed the events of the robbery. In her brief, Ruff inaccurately argues

that when the State asked if the displayed version provided a fair and accurate copy of the

original recording, Mukhida did not answer the question. This is not correct. Rather, Mukhida

answered that the copy which was displayed was a “[f]air copy. I give this copy to the police

officer.” Reading the totality of Mukhida’s testimony, it is a reasonable inference English was




                                               5
not his native language. 3 That said, his narrative was generally coherent (at least it appears so on

the printed page), and his testimony was sufficient to establish the exhibit was what the State

purported it to be—a recording of the events surrounding the robbery of Mukhida’s store. The

video recording exhibit was sufficiently authenticated, and the trial court did not abuse its

discretion in admitting it.

II.     Ruff’s Recorded Statements

        Detective Jaimie Fuller conducted two interviews with Ruff about three days after the

robbery occurred.       The day following those interviews, an arrest warrant was secured and

executed.

        The first interview lasted about two hours and Fuller testified that Ruff was not in

custody at the time of the interview, that she was free to leave when she wished, and that she did,

indeed, leave after the interview took place. Fuller said that the purpose of this interview was to

obtain Ruff’s version of the events surrounding the robbery.

        After this interview (which took place in the late morning), Ruff returned to the police

station to secure release of some of her personal items. At this time, the second encounter

between Fuller and Ruff occurred, this consuming about ten minutes. The thrust of this meeting

was that Ruff was inquiring about recovery of some of the personal property items in her

automobile and nothing even approaching an inculpatory statement or statement which might

have lead to discovery of evidence was mentioned. Although there was no predicate laid at the

3
 Mukhida’s use of grammar and idioms was not absolutely in keeping with what would commonly be heard from
native or accomplished speakers of the American version of the English language. He sometimes asked for
definitions or explanations of terms. Even so, we observe that sometimes definitions or explanations are required
for one stratum of American society to fully understand what someone from a different stratum thereof has said.
                                                       6
time of the introduction of the recording of this encounter that established that Ruff was not in

custody at the time, the interview terminated with Ruff and Fuller leaving together to see about

recovery of the personal property items. The recording of this interview, while tendered into

evidence, does not appear to have been played for the jury. 4

         The State offered video recordings of these two interviews into evidence; they were

admitted over Ruff’s objection.

         Ruff’s trial objection was:

         Your Honor, I would actually object under Texas Code of Criminal Procedure
         38.22. 5 These interviews were not voluntary.
                 In other words, they had her vehicle. She felt coerced in order to talk to
         the police under the circumstances. It wasn’t a voluntary interview. These are
         not voluntary confessions; and as a result, they should not be admitted.

Ruff’s appellate complaint is that Fuller’s questioning of her was designed to circumvent the

requirements of Miranda v. Arizona 6 and that admission of the recorded interviews was error

where Fuller did not read Ruff her Miranda rights.

         Ruff’s point of error assumes that she was in custody; the need for the Miranda warnings

and the constraints on the use of statements of the accused as set out in Article 38.22 of the

Texas Code of Criminal Procedure apply only to custodial interrogations. See Wolfe v. State,

917 S.W.2d 270, 282 (Tex. Crim. App. 1996); Shiflet v. State, 732 S.W.2d 622, 623 (Tex. Crim.

4
The content of this interview was so inconsequential (appearing to be evidence of nothing), it is something of a
mystery as to the reason that it was proferred as evidence.
5
See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2013) (regulating when custodial statements of accused
may be admitted and prescribing procedures for such).
6
 Miranda v. Arizona, 384 U.S. 436, 445, 469–72 (1966) (suspect to be informed before custodial interrogation of
constitutional right to remain silent, that any statements could be used against suspect in court, and of suspect’s right
to consult with a lawyer.
                                                           7
App. 1985). She cites Gardner v. State 7 and Nguyen v. State, 8 in seeking to maintain her claim

that she was in fact in custody when Fuller conducted the interviews.                        Although her trial

objection does not precisely comport with her appellate point of error, in the interest of justice,

we will treat this matter as preserved for our review.

        The Texas Court of Criminal Appeals has outlined four general situations which may

constitute custody for purposes of the application of the Miranda case or Article 38.22 of the

Texas Code of Criminal Procedure:

        (1)     when the suspect is physically deprived of his freedom of action in any
        significant way;

        (2)      when a law enforcement officer tells the suspect that he cannot leave;

        (3)      when law enforcement officers create a situation that would lead a
        reasonable person to believe that his freedom of movement has been significantly
        restricted; and

        (4)      when there is probable cause to arrest and law enforcement officers do not
        tell the suspect that he is free to leave.

Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); see Gardner, 306 S.W.3d at

294. Ruff claims that the third and fourth factors are applicable to her situation.




7
 Gardner v. State, 306 S.W.3d 274, 293–95 (Tex. Crim. App. 2009) (defendant presented himself to Mississippi
sheriff to “turn himself in” for his wife’s murder; defendant not under arrest when he spoke by telephone with Texas
investigating officer, even if officer had probable cause to secure warrant, which he had not done; defendant failed
to establish he was in custody during telephone conversation with Texas officer).
8
 Nguyen v. State, 292 S.W.3d 671, 677 (Tex. Crim. App. 2009) (defendant was in custody after he was arrested for
traffic violations, so statement regarding possession or ownership of drugs was custodial).
                                                         8
         As to the fourth Dowthitt factor, Ruff acknowledges that Fuller told her she was free to

leave. 9 Fuller denied having threatened or coerced Ruff, and no such tactics are observed on the

recording of the interview. Throughout the interview, Fuller questioned Ruff about Ruff’s

behavior as she had observed it on the store’s surveillance video recording, and Fuller

demonstrated unrestrained skepticism of Ruff’s explanation of the occurrences that were

preserved on the recording. While we find no moment where Fuller actually told Ruff that she

was a suspect, 10 it is apparent from Fuller’s questioning that Ruff was then being investigated for

her participation in the robbery. At least once during the interview, Fuller said that from her

perspective, she believed Ruff had robbed Mukhida, saying “Peggy, from what I’m looking at,

we’re looking at a robbery.” Even being the “focus” of an investigation does not necessarily

render a person “in custody” for purposes of providing the warnings mandated by Miranda or by

Article 38.22. Gardner, 306 S.W.3d at 294. Rather, “the ultimate inquiry is simply whether

there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a

formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (quoting Oregon

v. Mathiason, 429 U.S. 492, 495 (1977)).

         Ruff was subjected to nothing which approached a formal arrest. Ruff came to the police

station of her own volition. She was never placed in any kind of restraints at any time during the

recorded interview. After the interview concluded, Ruff was allowed to leave. She returned

about three and one-half hours after the conclusion of the first interview for a brief discussion
9
Fuller testified to this at trial and is heard to tell Ruff in the beginning of the interview that she was free to leave
whenever she liked.
10
  Officer Greg Hughes testified that he told Ruff she was a suspect when he located her the night of the robbery. He
read Ruff her Miranda rights, but no statement she made that evening is at issue here.
                                                           9
with Fuller about the status of her seized vehicle and its contents, after which some of her

personal effects were returned to her. Again, Ruff was permitted to leave. While at that point

Fuller may well have had probable cause to seek an arrest warrant for Ruff (which was indeed

done the next day), at no point did she tell Ruff she was not free to leave, and Ruff, in fact, left

the police station on both occasions after talking to Fuller. Even if probable cause to arrest Ruff

existed at the time of Fuller’s interview, there is no “manifestation of probable cause, combined

with other circumstances, [which] would lead a reasonable person to believe that [s]he [was]

under restraint to the degree associated with an arrest.” Dowthitt, 931 S.W.2d at 255; see also

Herrera, 241 S.W.3d at 532 (state of custody is reviewed on ad hoc basis considering all the

circumstances and asking whether, under all those circumstances, “‘a reasonable person [would]

have felt he or she was not at liberty to terminate the interrogation and leave’”) (quoting

Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

       Ruff does not explain how the interview technique employed by Fuller somehow

circumvented the requisites of Miranda. She acknowledges the situation at bar is not akin to

those found in Missouri v. Seibert, 542 U.S. 600 (2004), or Martinez v. State, 272 S.W.3d 615

(Tex. Crim. App. 2008), wherein police action was found to have been effectively designed to

question arrested defendants without administering Miranda warnings, giving the warnings only

later, after incriminating statements had been made. Because there is no indication that Ruff was

in custody when she was interviewed by Detective Fuller, the requirements of Miranda and

Article 38.22 of the Texas Code of Criminal Procedure did not apply. The second point of error

is overruled.

                                                10
III.    No Showing of Ineffective Assistance of Counsel

        Ruff claims her trial counsel was ineffective for a variety of reasons, listing the

following: (1) counsel’s failure to discuss possible defenses during voir dire and using the term

“burden of persuasion” rather than “burden of proof” at that time; (2) counsel’s failure to object

to the admission of Ruff’s affidavit in which she said she went to the store to discuss the child

she claimed Mukhida had fathered; (3) counsel’s failure to secure rulings on pretrial motions;

(4) the failure of counsel to move for a directed verdict at the conclusion of the State’s case or to

request a lesser-included offense instruction in the jury charge; and (5) counsel’s failure to

complain about potential circumvention of the requirement for Miranda warnings associated

with the interviews of Ruff. Although Ruff concedes that trial counsel “performed well in some

circumstances,” she argues that the aggregate effect of the above alleged failures rendered

counsel’s performance below the standard of objective reasonableness required by Strickland v.

Washington. 11

        Ineffective assistance of counsel claims cannot “be built on retrospective speculation,”

but must be firmly rooted in the record, with the record itself affirmatively demonstrating the

alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). The

appellant must show that trial counsel’s representation fell below an objective standard of

reasonableness. Fox v. State, 175 S.W.3d 475, 485 (Tex. App.—Texarkana 2005, pet. ref’d).

We indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable, professional assistance, and was motivated by sound trial strategy. See Strickland,

11
  Strickland v. Washington, 466 U.S. 668, 687 (1984) (to establish ineffective assistance of counsel, defendant must
show counsel’s performance was constitutionally deficient and such deficient performance prejudiced defense).
                                                        11
466 U.S. at 689; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). “If counsel’s

reasons for his conduct do not appear in the record and there is at least the possibility that the

conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny

relief on an ineffective assistance claim on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88–89

(Tex. Crim. App. 2002).

       The record on direct appeal is often insufficiently developed to support a claim of

ineffective assistance of counsel, even if it were to exist. The best way to make a sufficient

record to support such a claim is by the use of a hearing on a motion for new trial or a hearing on

a petition for habeas corpus. Jackson, 877 S.W.2d at 772–73 (Baird, J., concurring). When

facing a silent record as to defense counsel’s strategy, an appellate court will not speculate as to

counsel’s tactics or reasons for taking or not taking certain actions. Id. at 771. Because the trial

record is directed to the issues of guilt/innocence and punishment, an additional record focused

specifically on the conduct of counsel (such as a record of a hearing on a motion for new trial

asserting ineffective assistance of counsel) is generally needed. Kemp v. State, 892 S.W.2d 112,

115 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Only when “‘counsel’s ineffectiveness is

so apparent from the record’” will an appellant prevail on direct appeal absent a hearing on a

motion for new trial asserting an ineffective assistance of counsel claim. Freeman v. State, 125

S.W.3d 505, 506–07 (Tex. Crim. App. 2003) (quoting Massaro v. United States, 538 U.S. 508

(2003)); Kemp, 892 S.W.2d at 115.

       Here, there was no motion for new trial filed, and we find nothing in the record to suggest

that Ruff attempted to make a record of her trial counsel’s strategies (or lack thereof) and his

                                                12
reasons for trying this case as he did.       Other than her list of criticisms of trial counsel’s

performance, Ruff does not elaborate on how any of these alleged shortcomings might have

prejudiced her defense. An appellant who claims to have lacked the effective assistance of

counsel must “affirmatively prove prejudice,” and she “must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 693–94. Failure to satisfy either prong of the Strickland

test is fatal to such a claim. See Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App.

2006).    A reviewing court may consider the prejudice prong without considering whether

performance was deficient if it is easier to dispose of an ineffective assistance claim on that

basis. Strickland, 466 U.S. at 697.

         Ruff has shown no reasonable probability that the outcome of her trial would have been

different if not for the purported inadequacies of her trial attorney. The State presented video-

recorded evidence which revealed a woman in the convenience store. Three people (the victim

and two police officers) each identified the woman as Ruff. The woman in the surveillance

video is portrayed as entering the store with what appeared to be a pistol and then taking money

from both the cash register and from another drawer beneath the counter. Ruff’s vehicle was

found with a smashed windshield, damage which corresponded with testimony from Mukhida

that he struck the robber’s vehicle with a large flashlight.

         In her interview, Ruff recounted her version of events, wherein she claimed she went to

the store to discuss a deceased child whom she claimed that Mukhida fathered; the jury could

                                                 13
have disbelieved Ruff’s story that Mukhida had berated and attacked her. There is nothing in

Ruff’s briefing to hint at any prejudice her defense suffered because of what she claims were

ineffective aspects of her trial representation. We overrule this point of error.

       We affirm the trial court’s judgment and sentence.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:        June 11, 2014
Date Decided:          June 25, 2014

Do Not Publish




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