Bates v. State, 06–14–00096–CR

CourtCourt of Appeals of Texas
Citation494 S.W.3d 256
Docket NumberNo. 06–14–00096–CR,06–14–00096–CR
Parties Mickey Lee Bates, Appellant v. The State of Texas, Appellee
Decision Date17 June 2015

494 S.W.3d 256

Mickey Lee Bates, Appellant
The State of Texas, Appellee

No. 06–14–00096–CR

Court of Appeals of Texas, Texarkana.

Submitted: March 4, 2015
Decided: June 17, 2015
Rehearing Overruled August 11, 2015
Discretionary Review Refused December 16, 2015

Gary L. Waite, Paris, for Appellant.

Gary Young, Dist. Atty., Jeffrey W. Shell, Rockwall, for The State of Texas.

Before Morriss, C.J., Moseley and Burgess, JJ.


Opinion by Justice Moseley

Mickey Lee Bates rammed his Ford pickup truck into the porch of his neighbor's apartment, pinning his neighbor, Tommy Whitlock, between the truck and the detritus of the destroyed porch. As a result of this conduct, Bates was charged with aggravated assault with a deadly weapon. A jury convicted Bates of the charge, and he was sentenced to ten years' confinement. Appealing the conviction, Bates raises several challenges to the audio portion of a audio/video recording which was admitted to evidence. This recording allowed the jury to hear both the statements of witnesses and statements by Bates as given to investigating officers at the scene. In addition to his complaints about the admission of the audio/video recording, Bates also claims his trial counsel was constitutionally ineffective.

Although we concur with Bates' claim that some of the evidence from the recording was admitted in error, we find the error harmless beyond a reasonable doubt. We also find that Bates has failed in his burden to demonstrate that his trial counsel provided ineffective assistance. We, therefore, affirm the trial court's judgment and sentence.

I. Factual Circumstance

At the time of the events giving rise to the assault charge, Bates was staying in an apartment with James Dunagan in Paris. The apartment complex appears to be a collection of small frame buildings rather than the contemporary, multi-family, multi-story complexes commonly built and seen over the past decades. Dunagan said that in the early evening of July 19, 2013,

494 S.W.3d 262

he was inside the apartment watching television, while Bates was outside on the porch, drinking Bloody Marys.1 Bates had previously installed a video camera from which he could monitor his truck in the parking lot, and a small television display of the view from the camera was on or near Dunagan's television set. Through Bates' monitoring device, Dunagan saw Bates get into his truck, appearing to be ready to leave the premises. This concerned Dunagan because he believed the amount of alcohol he had witnessed Bates consume that day would impair Bates' ability to drive. Walking onto the porch, Dunagan observed Bates first back up the manual transmission truck and then lunge forward over a concrete curb stop and across something of a courtyard where he slammed the truck into the front porch of Whitlock's apartment. Whitlock (an older man) and J.D. Duncan, a friend of Whitlock's, were sitting on Whitlock's porch. Duncan, seeing the rapidly-approaching truck, was able to evacuate the porch before the collision, but Whitlock was not. Dunagan testified that after smashing into Whitlock's porch, Bates backed up his truck and proceeded to slam into the porch a second time. After this second collision, Bates' truck became entangled with the debris from the porch, and Bates could not extricate it. Bates turned off the key and started to walk away. A neighbor of Dunagan's took Bates by the arm and led him to a chair on Dunagan's front porch, where Bates sat until the police arrived.

Whitlock corroborated Dunagan's description of events. Whitlock stated that he and Duncan were sitting on Whitlock's porch having a drink. He indicated that Bates and Duncan had recently argued regarding “something about somebody owed somebody or something.” Whitlock believed that Bates and Duncan were not getting along very well that day. Whitlock testified that he watched as Bates got into his truck, backed the truck down what he described as a long driveway, and then sped forward (sounding like a “tornado”), smashing into Whitlock's porch. Whitlock then described Bates backing up and ramming the porch a second time. This second collision caused Whitlock to be pinned between the door of his apartment and the front of Bates' truck. Whitlock stated that while he was trapped between his apartment and the truck, Bates put the truck in reverse and attempted to back up (Whitlock believing that he intended to back up and run into the porch a third time), but by this juncture, the truck was entangled in the debris and could not be moved.

As a result of the incident, Whitlock sustained a broken leg, a broken rib, and abrasions, and he required daily home health care for a brief period. As a long-term consequence, he found it necessary to use a cane much more frequently than he had in the past. Whitlock was the named victim in the indictment; the State alleged, and the jury found, that Bates used or exhibited the pick-up truck as a deadly weapon.

II. Controversy Over Admission of Audio/Video Recording

Three of the four points of error raised by Bates on appeal deal with the introduction of an audio/video recording introduced by the State. This recording, admitted as State's Exhibit 3, was captured by a dashboard camera (dash cam) in one of the responding police officers' cars. There are three points of error we must address concerning admission of this recording,

494 S.W.3d 263

each having to do with the admissibility of the audio portion of the recording and with Bates' statements recorded on it.

The recording commences with the travel of the patrol car to the scene and continues after the patrol car comes to a stop in the parking lot of the apartment units. The audio portion records the statements of several witnesses at the scene, as well as comments made by Bates in response to questions posed to him by the police who appeared at the scene. Almost immediately after the policeman exits the patrol car, a burly, shirtless man approaches him and says, “[H]e just tried to kill that man.” A woman's voice is recorded as saying, “Oh, my God.” The burly man appears to be quite agitated and excited, pacing back and forth in front of the patrol car, and tells the policemen, “Get him man. Get him. Don't let him go nowhere 'cause I'm gonna do something stupid.” Although some of the audio portion of the recording is somewhat unintelligible, it appears that the burly man says the name “Mickey Bates.”

Immediately after this exchange, one of the officers (who is outside the range of the camera) says, “Come here; what's the deal, man?” Almost assuredly, this question was directed at Bates, because the speaker responds, “Man, I started my truck up and put it in gear and let out on the clutch and it took off and I couldn't stop it and it just kept going ... ain't run over nobody on purpose ... I swear to God.” The officer then asks the speaker (obviously Bates) if he has any weapons on him; and, notably, if he was driving the vehicle. Bates responds with what sounds like, “I cranked it....” Shortly, the sound of handcuffs being applied is heard. From witness testimony at trial, it appears that at this point, Bates was handcuffed and put in a police car.2

Over the next five or six minutes, the police officers' voices are heard to request that people who were witnesses to the event come talk to them. At least two people are then heard responding to police questioning and by stating that they saw someone drive a truck rapidly into Whitlock's porch, back up, and then repeat the collision. After one of these recitations, one of the officers is heard asking the witness for her contact information.

After talking to these witnesses, the voices of the officers are heard conversing with one another, but their conversation is mostly indecipherable, although the word “arrest” is clearly audible at some point during these discussions. At no point does anyone provide Bates with the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). One officer asks Bates (who is then sitting handcuffed in the rear of the patrol car) his name. Bates identifies himself and says that he lives in the apartment complex. A voice apparently belonging to a police officer3 asks Bates, “What's going on Mickey,” and Bates' response (which is difficult to understand) indicates that he had put his truck in the wrong gear “and let out on the gas and ... couldn't get off of it ... gas pedal got stuck.” The officer then inquired how much alcohol he had consumed, and Bates responded that he had not had much. When Bates was asked if he knew Whitlock, he responded in the affirmative and volunteered that he would never intentionally hurt the man, maintaining that the collision had been the

494 S.W.3d 264

result of an accident. When asked if he had tried to help Whitlock, Bates answered that he had been knocked unconscious by the collision.

After talking to Bates, the police officers are heard talking, apparently out of Bates' hearing. One officer asked, “We're gonna get him for assault, right?” Another officer responds affirmatively, saying Bates would be charged with aggravated assault with a deadly weapon. Within two minutes thereafter,...

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