Beham v. State

• Decision Date: 18 September 2015
• Docket Number: No. 06–14–00174–CR,06–14–00174–CR
• Citation: 476 S.W.3d 724
• Parties: Roderick Beham, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

476 S.W.3d 724

Roderick Beham, Appellant

v.The State of Texas, Appellee

No. 06–14–00174–CR

Court of Appeals of Texas, Texarkana.

Submitted: August 18, 2015

Decided: September 18, 2015

Alwin A. Smith, Attorney at Law, Texarkana, TX, for appellant.

Lauren Sutton, Assistant District Attorney, Texarkana, TX, for appellee.

Before Morriss, C.J., Moseley and Carter,^* JJ.

OPINION

Opinion by Justice Carter

Roderick Beham was convicted of aggravated robbery and sentenced to twenty-five years' imprisonment. On appeal, Beham contends that the trial court erred in: (1) denying his motion to suppress his statements because he invoked his right to counsel and to remain silent; (2) limiting his cross-examination of an accomplice; (3) admitting evidence of extraneous bad acts during the punishment phase without first making a finding that he committed the acts beyond a reasonable doubt; and (4) admitting evidence of extraneous bad acts during the punishment phase because its probative value was substantially outweighed by its unfair prejudice.

We affirm Beham's conviction, but reverse his sentence and remand the case for a new punishment trial.

I. Facts

At 10:30 p.m., Arneisha Hall entered the lobby of the Country Inn & Suites hotel in Texarkana, Texas, and asked to use the bathroom. A few minutes later, two masked men entered the lobby, and one of them pointed a gun at Amanda Gardner, the lone clerk, demanding the key to the safe. When Gardner informed them that she did not have the key, the man with the gun took a wallet and gift cards out of the clerk's purse and fled. Several hours later, Hall and Beham walked into the Walmart in Ashdown, Arkansas, where Hall pulled out a wallet that appeared to be the one stolen earlier and tried to use a gift card. According to police testimony, a comparison of video surveillance footage from the hotel and the Ashdown Walmart confirmed that the clothing Beham was wearing at the Walmart matched the clothing of one of the men who robbed the hotel. Beham was identified from the security footage, arrested, and charged with aggravated robbery, a first degree felony. Beham moved to suppress statements he made during an interview with the police, but the trial court denied his motion, and the audio-recorded statement was played for the jury. At trial, Hall, having pled guilty to similar charges filed against her, testified as an accomplice witness. The jury convicted Beham, and the court sentenced him to twenty-five years' imprisonment.

II. Invocation of Right to Counsel

In his first point of error, Beham contends that the trial court should have suppressed the statements he made during his recorded interview with the police because he invoked his right to counsel.

A. Standard of Review

We review the trial court's decision to deny Beham's motion to suppress evidence by applying a bifurcated standard of review. See Graves v. State, 307 S.W.3d 483, 489 (Tex.App.—Texarkana 2010, pet. ref'd) ; Rogers v. State, 291 S.W.3d 148, 151 (Tex.App.—Texarkana 2009, pet. ref'd).

Because the trial court is the exclusive trier of fact and judge of witness credibility at a suppression hearing, we afford almost total deference to its determination of facts supported by the record. State v. Ross, 32 S.W.3d 853, 856–57 (Tex.Crim.App.2000) ; Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000) ; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We also afford such deference to a trial court's rulings on application-of-law-to-fact questions, also known as mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996).

While we defer to the trial court's determination of historical facts and credibility, we review de novo its application of the law and its factual determinations not turning on credibility and demeanor. Carmouche, 10 S.W.3d at 332 ; Guzman, 955 S.W.2d at 89 ; Graves, 307 S.W.3d at 489. Since all evidence is viewed in the light most favorable to the trial court's ruling, we are obligated to uphold the denial of Beham's motion to suppress if it was supported by the record and was correct under any theory of law applicable to the case. See Carmouche, 10 S.W.3d at 328 ; State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999). "[I]n determining whether a trial court's decision is supported by the record, we generally consider only evidence adduced at the suppression hearing, because the ruling was based on that evidence, rather than evidence introduced later at trial." Herr e ra v. State, 80 S.W.3d 283, 286 (Tex.App.—Texarkana 2000, pet. ref'd).

If a suspect requests counsel at any time during a custodial interview, "he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). This secondary Miranda¹ right to counsel is " ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.’ " Id . (quoting Michigan v. Harvey, 494 U.S. 344, 350, 110 S.Ct. 1176, 108 L.Ed.2d 293 (1988) ).

"A suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present." Id . However, in the context of invoking the Miranda right to counsel, a suspect must do so "unambiguously." Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," then an officer is required neither to end the interrogation nor ask questions to clarify whether the accused wants to invoke his or her Miranda rights. Davis, 512 U.S. at 459, 114 S.Ct. 2350.

The United States Supreme Court has observed that a " ‘statement either is such an assertion [of the right to counsel] or it is not.’ " Smith v. Illinois, 469 U.S. 91, 97–98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (quoting People v. Smith, 102 Ill.2d 365, 80 Ill.Dec. 784, 466 N.E.2d 236, 241 (Ill.1984) (Simon, J., dissenting) (alteration in original)). To unambiguously invoke his right to counsel, a suspect need not "speak with the discrimination of an Oxford don," Davis, 512 U.S. at 476, 114 S.Ct. 2350 (Souter, J., concurring in judgment), but he "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney," Davis, 512 U.S. at 459, 114 S.Ct. 2350. If the suspect's statement fails to meet that level of clarity, the officers do not have to cease questioning the suspect. Id.

B. Analysis

Early in the interrogation, the following conversation between Beham and Detective Billy Giddens occurred:

Beham: I was gonna try to see if I could get a lawyer.

Giddens: Okay.

Beham: My pops told me to get a lawyer—you get a lawyer for me.

Giddens: Okay, so you don't want to talk?

Beham: Aaahh, I [unintelligble] want to talk to the lawyer and see what's going on.

Giddens: Okay. So you don't even know why I'm here then, huh?

Beham: Yea, they said that—that you had to talk to me about something.

Giddens: Okay.

Beham:—bout, bout something, about uh, about the girl that I was with at the uh, Walmart.

Giddens: Mmhmm. Do you want to talk about that?

Beham said he dropped the girl off in Texarkana, and Giddens said, "Well, I'm kind of in a bind here. Either we want to discuss it or we don't. Like I said, if it gets too hot on you, you can shut her down, man—is what I'm talking about." Beham hesitated and then said, "I'll see what you got to say first." Beham signed a statement acknowledging his rights and later confessed to his involvement in the robbery.

In his motion to suppress his recorded statement, Beham argued that he unambiguously invoked his right to counsel. After reviewing the recorded interview, the trial court denied Beham's motion and found that Beham did not clearly and unambiguously invoke his right to counsel.

In Davis, the defendant stated, "Maybe I should talk to a lawyer," and the United States Supreme Court found that this statement was not an unambiguous request for counsel. Id . at 462, 114 S.Ct. 2350. The Texas Court of Criminal Appeals has likewise required an unambiguous assertion of the right to counsel. Davis v. State, 313 S.W.3d 317, 334 (Tex.Crim.App.2010) (defendant's statement during police interview—"I should have an attorney."—did not expressly invoke right to counsel). Here, the trial court found that there was "no unambiguous request for an attorney."

We are to evaluate whether Beham's right to counsel was invoked based on the totality of the circumstances surrounding the statement. See id. at 339. Here, Beham signed a document stating that he understood and waived his rights, including his right to counsel. A review of the recorded interview fails to reveal an unambiguous request for counsel. Beham's first statement, that he was "gonna try to see if [he] could get a lawyer" fails to definitively request counsel. In his second statement, he said, "Aaahh, I [unintelligible] want to talk to the lawyer and see what's going on." However, the unintelligible word or words could have been any number of different words, and because the statement is open to two or more reasonable interpretations, it is ambiguous. When Giddens again asked whether Beham wanted to talk, reminding him that he could terminate the interview at any time, rather than clearly invoking his right to counsel, Beham said he would see what Giddens had to say first.

Based on precedent from the United States Supreme Court and the Texas Court of Criminal Appeals, we find that Beham did not clearly and unambiguously invoke his right to counsel and that a reasonable officer in light of the circumstances would have...