Opinion filed May 20, 2010




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-08-00157-CR
                                        __________

                       JOHN MICHAEL GATELY, Appellant
                                    V.
                          STATE OF TEXAS, Appellee


                             On Appeal from the 35th District Court
                                     Brown County, Texas
                                Trial Court Cause No. CR19181


                                         OPINION
       The jury convicted John Michael Gately of possession of methamphetamine with the
intent to deliver in the amount of four grams or more but less than two hundred grams.
Appellant pleaded true to an enhancement allegation, and the jury assessed his punishment at
ninety-nine years confinement and a fine of $10,000. The trial court sentenced him accordingly.
Appellant presents seven issues for review. We affirm.
                                          Background
       Detective Bruce Spruill, a narcotics investigator for the Brownwood Police Department,
received information from a confidential informant that appellant was transporting
methamphetamine from the Metroplex to Brownwood.           Detective Spruill set up a covert
operation to observe appellant. After receiving information that appellant would be delivering
drugs to Brownwood on April 11, 2007, Detective Spruill conducted surveillance of an
apartment in Brownwood.        At that time, Detective Spruill observed appellant get into the
passenger’s side of a white, Toyota Scion. Police officers stopped the vehicle. John Phy was
driving the vehicle, and appellant was a passenger in the vehicle. Detective Spruill obtained
Phy’s consent to search the vehicle. During the search, the officers found over twenty-nine
grams of methamphetamine in between the driver’s seat and a console.
        Appellant does not challenge the sufficiency of the evidence to support his conviction.
We have reviewed the evidence in its entirety. The State presented overwhelming evidence of
appellant’s guilt.
                                  Denial of Challenge for Cause
        In his first issue, appellant argues that the trial court erred in failing to excuse a
veniremember for cause. Appellant challenged Veniremember Robert Northcutt for cause. The
trial court denied appellant’s challenge. Appellant did not use a peremptory strike on Northcutt.
Rather, appellant used his peremptory strikes on other veniremembers and then requested an
additional peremptory strike for the purpose of striking Northcutt.         The trial court denied
appellant’s request for an additional strike, and Northcutt served on the jury.
        To preserve error on a trial court’s denial of a challenge for cause, an appellant must take
the following steps: (1) assert a clear and specific challenge for cause; (2) use a peremptory
strike on the complained-of veniremember; (3) exhaust his peremptory strikes; (4) request
additional peremptory strikes; (5) identify an objectionable juror; and (6) claim that he would
have struck the objectionable juror with a peremptory strike if he had one to use. Allen v. State,
108 S.W.3d 281, 282 (Tex. Crim. App. 2003). Because appellant did not use a peremptory strike
on Northcutt, appellant failed to preserve error on his first issue. Appellant’s first issue is
overruled.
                                    Recorded Statement of Phy
        Appellant contends in his second issue that the trial court erred in admitting the statement
of Phy, a codefendant. The stop of the vehicle was recorded by equipment in Brownwood Police
Officer John C. Harper’s patrol vehicle. During Officer Harper’s testimony, the State sought to
introduce into evidence the DVD of the stop. The DVD lasts over an hour. During the vast
majority of time, the DVD is silent. However, the DVD includes a few statements made by Phy

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about the methamphetamine that the officers found in the car. Phy stated, “It’s not my dope.
He’s the dealer.” Phy also stated, “I can tell you people where it’s going to.” Appellant objected
to the admissibility of Phy’s statements on the ground of hearsay. The trial court admitted the
DVD over appellant’s objection. The DVD was not played for the jury when the trial court
admitted it into evidence.
       We note that the record is not clear as to whether the jury watched the DVD of the stop.
During jury deliberations, the jury sent the trial court a note asking whether it could see the DVD
of the stop. The trial court suggested sending a laptop into the jury room so that the jurors could
watch the DVD. Neither party objected to the trial court’s suggestion. The record shows that
this discussion occurred at 1:22 p.m. At 2:08 p.m., the trial court announced that the jury had
reached a verdict. The jury could not have watched the entire DVD during this forty-six minute
time period. However, for the purposes of addressing appellant’s issue, we will assume that the
jury watched the portions of the DVD containing Phy’s statements.
       Phy testified at trial. Phy said that he agreed to drive appellant to Brownwood. Phy said
that, in exchange for the ride to Brownwood, appellant promised to give him gas and cigarettes.
Phy testified that appellant hid drugs in the car before they left for Brownwood. He testified that
the drugs were about the size of a softball. Phy believed that the drugs were methamphetamine.
He testified that, when they were about halfway to Brownwood, appellant retrieved the drugs and
started handling them inside the car. Phy said that, when they arrived in Brownwood, he drove
to a house and appellant got out of the car. Phy testified that appellant took the drugs with him
and then got into a maroon, Chevrolet van with a woman. Phy said that he followed the van to
an apartment complex and then waited outside for appellant. He said that appellant returned to
the car and that they left the apartment complex. Phy testified that the police surrounded them
and pulled them over. According to Phy, appellant said, “We’re going to prison for a long time.”
Phy testified that appellant shoved the drugs between the seats. Phy said that he gave a police
officer consent to search the car.
       Even if the trial court erred in admitting the portions of the DVD containing Phy’s
statements, appellant would not be entitled to a reversal of his conviction unless the error
constituted reversible error under Rule 44.2 of the Rules of Appellate Procedure. TEX. R.
APP. P. 44.2.   A violation of the evidentiary rules resulting in the erroneous admission of
evidence is nonconstitutional error and is, therefore, subject to a harm analysis under Rule

                                                3
44.2(b). Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998). Under Rule 44.2(b), we are to disregard any error
unless it affected appellant’s substantial rights. A substantial right is affected when the error had
a substantial and injurious effect or influence on the jury’s verdict. King v. State, 953 S.W.2d
266, 271 (Tex. Crim. App. 1997).
       Phy’s statements on the DVD were consistent with his trial testimony. In fact, Phy’s trial
testimony provided much more detail than his statements on the DVD. The admission of Phy’s
statements on the DVD was harmless because those statements were cumulative of his trial
testimony. Couchman v. State, 3 S.W.3d 155, 160 (Tex. App.—Fort Worth 1999, pet. ref’d); see
Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986). Under these circumstances, the
error, if any, in admitting the DVD was harmless. Appellant’s second issue is overruled.
                                 Recorded Statement of Appellant
       In his third issue, appellant complains that the trial court erred in admitting his recorded
statement. Detective Spruill took the recorded statement from appellant. Appellant objected to
the admissibility of the statement on the ground that he did not knowingly, intelligently, and
voluntarily waive his right to counsel before providing the statement. The trial court admitted
the statement, and it was played for the jury. The recording of appellant’s statement establishes
that, before appellant gave his statement, Detective Spruill gave appellant the warnings required
by Miranda v. Arizona, 384 U.S. 436 (1966), and TEX. CODE CRIM. PROC. ANN. art.
38.22 (Vernon 2005), including the warning that appellant had the right to have a lawyer present
to advise him prior to and during any questioning. Appellant acknowledged in the trial court that
Detective Spruill gave him the necessary warnings.           However, appellant argued that the
statement was inadmissible because he did not expressly waive his right to counsel.
       Neither a written nor an oral express waiver is required to support a finding that an
accused waived his Miranda rights. Joseph v. State, No. PD-1111-08, 2010 WL 625072, at *3
(Tex. Crim. App. 2010); Watson v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988). A valid
waiver will not be presumed simply from the silence of the accused after warnings are given or
simply from the fact that a confession was in fact eventually obtained. Miranda, 384 U.S. at
475. However, a waiver need not assume a particular form, and in some cases, a “waiver can be
clearly inferred from the actions and words of the person interrogated.” Joseph, 2010 WL
625072, at *3 (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). The question is not

                                                 4
whether an accused “explicitly” waived his Miranda rights, but whether he did so knowingly,
intelligently, and voluntarily. Joseph, 2010 WL 625072, at *3. Whether an accused waived his
Miranda rights is determined from the totality of the circumstances. Id.; Castillo v. State, 616
S.W.2d 620, 622 (Tex. Crim. App. 1981); Turner v. State, 252 S.W.3d 571, 583 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d).
       After Detective Spruill advised appellant of his rights, Detective Spruill asked appellant,
“Do you understand your rights?” Appellant responded, “Yes, sir.” Detective Spruill also asked
appellant whether he had any questions about his rights, and appellant responded, “No, sir.”
Detective Spruill then asked appellant, “Do you want to talk to me?” Appellant responded, “I
would like to talk to you.” Appellant told Detective Spruill that “[his] head [was] pounding,” but
appellant continued the interview. Later, appellant said, “I’m willing to help wherever I can.”
Following this statement, appellant said, “Right now my head is banging.” However, appellant
again continued the interview.
       Although appellant never expressly waived his rights, appellant willingly participated in
the interview. Based on the totality of the circumstances, a waiver can clearly be inferred from
appellant’s words and actions. The recorded interview establishes that appellant knowingly,
intelligently, and voluntarily waived his rights. Appellant’s third issue is overruled.
       In his seventh issue, appellant contends that the trial court erred in admitting evidence
that he exercised his constitutional right to terminate the interview. About seventeen minutes
into the interview, appellant stated, “I’ve been bullshitting.” He also stated, “I want to be
straight forward.”     He requested Detective Spruill to do the interview the next day.
Detective Spruill said that he could not guarantee that he could talk with appellant the next day.
Later, appellant again said that his head was pounding. Detective Spruill said “okay” and
concluded the interview.
       Detective Spruill testified that, at some point, appellant requested to cease the interview
and that he ceased it upon appellant’s request.        Appellant objected to Detective Spruill’s
testimony on the ground that it was an improper comment on his right to terminate the interview.
Evidence of the invocation of the constitutional right to terminate an interview is inadmissible.
Cooper v. State, 961 S.W.2d 222, 226 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The
State may not inform the jury that the accused invoked his constitutional rights because the jury



                                                 5
may improperly consider the invocation as an inference of guilt. Hardie v. State, 807 S.W.2d
319, 322 (Tex. Crim. App. 1991).
       Appellant’s recorded interview does not indicate that he was invoking his constitutional
right to terminate the interview. A police officer need not stop questioning a suspect unless the
suspect’s invocation of rights is unambiguous. Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim.
App. 2008); Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). The officer is not
required to clarify ambiguous remarks. Ramos, 245 S.W.3d at 418; Dowthitt, 931 S.W.2d at
257. In Dowthitt, the accused stated the following during a statement: “I can’t say more than
that. I need to rest.” The Court of Criminal Appeals held that these statements were not an
unambiguous invocation of the right to remain silent. Dowthitt, 931 S.W.2d at 257. Likewise,
appellant did not unambiguously invoke his right to terminate the interview. At most, the
recorded statement indicates that appellant wanted to stop the interview for the day because his
head was pounding and then continue the interview the next day. Because appellant did not
exercise his constitutional right to terminate the interview, Detective Spruill’s testimony was not
improper. Appellant’s seventh issue is overruled.
                               Trial Court’s Statements to Witness
       In his fourth issue, appellant asserts that the trial court erred in causing Ruben Gonzales
Jr. to testify under duress. Gonzales and appellant were former cellmates. The State called
Gonzales as a witness. He immediately informed the trial court that he did not want to testify.
The trial court excused the jury and addressed the issue. Gonzales had pleaded guilty to a
felony. As part of the plea agreement, Gonzales had agreed to testify in appellant’s case. The
trial court admonished Gonzales of the potential consequences of his failure to testify. The trial
court also appointed counsel to advise Gonzales of his rights.        The prosecutor questioned
Gonzales outside of the jury’s presence. Gonzales’s court-appointed attorney was present during
this questioning. The trial resumed the next morning. Gonzales’s attorney was present in court.
In response to questioning by the prosecutor, Gonzales said that he had decided to testify.
Gonzales then testified before the jury.
       The record does not support appellant’s argument that the trial court improperly caused
Gonzales to testify. The trial court appointed counsel for Gonzales. The record demonstrates
that Gonzales voluntarily testified. We note that Gonzales never invoked his Fifth Amendment
right against self-incrimination. Instead, he apparently did not want to testify because he was

                                                6
concerned about the way he might be treated in prison if he did. However, for the purposes of
our analysis, we will assume that Gonzales’s testimony was sufficient to invoke his right against
self-incrimination. If a witness invokes his right against self-incrimination, the trial court cannot
compel him to answer the question unless it is perfectly clear, from a careful consideration of all
the circumstances in the case, that he is mistaken in asserting the privilege and that the answer
cannot possibly tend to incriminate him. Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim.
App. 1984); Boler v. State, 177 S.W.3d 366, 371 (Tex. App.—Houston [1st Dist.] 2005, pet.
ref’d). In this case, the prosecutor did not ask Gonzales any incriminating questions, and
Gonzales’s answers to the prosecutor’s questions did not incriminate him. Therefore, assuming
that Gonzales invoked his right against self-incrimination, the trial court properly compelled him
to testify. In addition, appellant has not provided this court with any authority demonstrating
that he has a right to complain about an alleged violation of Gonzales’s right against self-
incrimination. Appellant’s fourth issue is overruled.
                         Prosecutor’s Statements During Jury Arguments
       In his fifth issue, appellant asserts that the trial court erred in allowing the prosecutor to
comment on his failure to testify during jury arguments in the guilt/innocence phase and the
punishment phase. A comment on a defendant’s failure to testify offends the Texas and United
States Constitutions, as well as Texas statutory law. U.S. CONST. amend. V; TEX. CONST. art. I,
§ 10; TEX. CODE CRIM. PROC. ANN. art. 38.08 (Vernon 2005). A prosecutor’s comment amounts
to an impermissible comment on a defendant’s failure to testify only if, when viewed from the
jury’s standpoint, the comment is manifestly intended to be, or is of such character that a typical
jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify.
Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d
761, 765 (Tex. Crim. App. 2001).
       During jury argument in the guilt/innocence phase, the prosecutor argued that the
confidential informant had received about two grams of methamphetamine from appellant.
Dennis Mason Arial was the confidential informant.          He testified at trial. Arial said that
appellant gave him methamphetamine and that he later gave it to Detective Spruill.
Detective Spruill testified that Arial gave him methamphetamine. The prosecutor stated in his
argument that “[t]here is nothing to controvert the testimony of Mr. Arial, that that is where he
got the drugs from.” Appellant contends that this statement was a comment on his failure to

                                                 7
testify. However, viewed in context, the prosecutor’s statement appears to refer to a lack of
evidence that Arial obtained the methamphetamine after he left appellant’s presence and was not
a comment on appellant’s failure to testify. This conclusion is evidenced by the prosecutor’s
argument immediately before the above-quoted statement:
       So, from there, [appellant] remains and Mr. Arial departs. [Arial] travels over to
       Walgreen’s where he meets Bruce Spruill and hands over to him the drugs, that
       almost 2 grams of methamphetamine in the cellophane wrapper that has been
       admitted and described for you.

           Now, Mr. Arial was searched before this began. The car was new. It was
       searched. He was searched. No drugs found. Where in the world did the drugs
       come from if they didn’t come from [appellant] as Mr. Arial says? Did he go to
       somebody on the street corner, buy some drugs? Would that make sense? Of
       course not. Okay? It’s as simple as that.

Evidence as to whether Arial obtained the methamphetamine after leaving appellant’s presence
would not be provided through the testimony of appellant because appellant would not know
what Arial did after leaving his presence.      Therefore, no relationship existed between the
complained-of statement by the prosecutor and appellant’s failure to testify. We conclude that
the prosecutor’s statement was not manifestly intended to be, nor was of such character that a
typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to
testify. Cruz, 225 S.W.3d at 548. As such, the statement did not constitute an impermissible
comment on appellant’s failure to testify.
       After appellant objected to the prosecutor’s statement at trial, the trial court stated as
follows:
       I will overrule the objection, but will emphasize, once again, ladies and gentlemen
       of the jury, and admonish all counsel that everybody in a criminal case who is
       accused of a crime has an absolute constitutional right not to testify. It cannot be
       held against them in any way. You cannot comment on it or allude to it, period.

Even if the prosecutor’s statement constituted a comment on appellant’s failure to testify, the
trial court’s instruction to the jury cured any harm caused by the statement. Moore v. State, 999
S.W.2d 385, 405-06 (Tex. Crim. App. 1999) (Except in the most blatant cases, an instruction to
disregard a comment on the defendant’s failure to testify will cure any harm caused by the
comment.).




                                                8
       During jury argument in the punishment phase, the prosecutor commented on appellant’s
work history. The following exchange took place:
          [PROSECUTOR]: Of all the evidence that was presented, the only evidence
       of his workmanship, the ability to work in a legitimate job was that possibly
       sometime in 2006, he worked --

          [DEFENSE COUNSEL]: I object. It’s a comment on the failure [of] the
       Defendant to testify and give forth that evidence.

           THE COURT: Overruled.

           [PROSECUTOR]: That he worked for a period of 2000, 2006 hanging some
       wallpaper. Other than that, the only evidence you have is that he sold drugs,
       distributed drugs for a living.

           [DEFENSE COUNSEL]: Judge, same objection.

           THE COURT: Overruled.

In the above argument, the prosecutor was referring to testimony by appellant’s family members
about his employment history. Appellant contends that the prosecutor’s statements commented
on his failure to testify because they called attention to testimony that only he could provide.
However, any number of individuals, including former employers, coworkers, family members,
or acquaintances, could have provided testimony about appellant’s employment history. The
prosecutor’s statements were not a comment on appellant’s failure to testify. Appellant’s fifth
issue is overruled.
                                 Evidence of Extraneous Offense
       In his sixth issue, appellant asserts that, in the guilt/innocence phase, the trial court erred
in admitting evidence of extraneous conduct involving his delivery of drugs to Sady Huro.
Gonzales testified about conversations he had with appellant when they were cellmates.
Gonzales said that appellant told him that, on the day he was arrested, he had brought between
thirty-four and forty grams of methamphetamine into town. Appellant also told Gonzales that he
had planned to drop off the methamphetamine to a lady named Sady. According to Gonzales,
appellant made it clear that Sady was his customer. Gonzales also said that appellant told him
that he had dropped off drugs to Sady a couple of weeks before he was arrested.
       Appellant did not object to Gonzales’s testimony about his delivery of drugs to Sady
Huro. To preserve error for appellate review, the complaining party must make a timely, specific

                                                 9
objection in the trial court and obtain a ruling on the objection. TEX. R. APP. P. 33.1(a);
Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); Broxton v. State, 909 S.W.2d 912,
918 (Tex. Crim. App. 1995). Appellant did not preserve the alleged error for review.
       Additionally, even if appellant had objected to Gonzales’s testimony at trial, the trial
court would not have abused its discretion in allowing the testimony. Gonzales testified about
one extraneous offense in the portion of the record cited by appellant in his brief. Specifically,
Gonzales testified that appellant told him that he had delivered drugs to Sady Huro a couple of
weeks before his arrest.    Rule 404(b) of the Rules of Evidence provides that evidence of
extraneous offenses is not admissible “to prove the character of a person in order to show action
in conformity therewith.” TEX. R. EVID. 404(b). However, Rule 404(b) allows evidence of
extraneous offenses if the evidence has relevance apart from character conformity. For example,
extraneous offense evidence may be admissible to prove motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Rule 404(b); Prible v. State, 175
S.W.3d 724, 731 (Tex. Crim. App. 2005); Carter v. State, 145 S.W.3d 702, 707 (Tex. App.—
Dallas 2004, pet. ref’d). Evidence that appellant had delivered drugs to Sady Huro about two
weeks before his arrest was relevant to show that, on the date of his arrest, he possessed the
methamphetamine with the intent to deliver. See Payton v. State, 830 S.W.2d 722, 730 (Tex.
App.—Houston [14th Dist.] 1992, no pet.) (Evidence that the defendant sold drugs two days
before his arrest was relevant to whether he possessed drugs with intent to deliver). Therefore,
the extraneous offense evidence was admissible. Appellant’s sixth issue is overruled.
                                        This Court’s Ruling
       The judgment of the trial court is affirmed.




                                                              TERRY McCALL
                                                              JUSTICE

May 20, 2010
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.



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