Brossette v. State, 06-01-00189-CR.

• Decision Date: 03 February 2003
• Docket Number: No. 06-01-00189-CR.,06-01-00189-CR.
• Parties: Keith Joseph BROSSETTE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

99 S.W.3d 277

Keith Joseph BROSSETTE, Appellant, v. The STATE of Texas, Appellee.

No. 06-01-00189-CR.

Court of Appeals of Texas, Texarkana.

Submitted January 15, 2003.

Decided February 3, 2003.

COPYRIGHT MATERIAL OMITTED

Troy A. Hornsby, Miller, James, Miller & Hornsby, LLP, Texarkana, for Appellant.

Marcus D. Taylor, Wood County Dist. Atty., Henry Whitley, Special Asst. Dist. Atty., Quitman, for State.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Keith Joseph Brossette appeals from a criminal conviction of indecency with a child by sexual contact. Brossette entered a plea of not guilty to the charges against him, and the case was tried to a jury. On September 12, 2001, the jury found Brossette guilty of the offense. The trial court imposed a ninety-nine-year sentence. Brossette now appeals, asserting three points of error. First, Brossette contends the statement he gave to police was inadmissible because it was given in violation of his constitutional request for an attorney during interrogation. Next, Brossette asserts the trial court erred when it sustained an objection concerning a prior bad act and instructed the jury to disregard, rather than grant, a mistrial. Finally, Brossette argues there was fundamental error when the court reporter failed to record the judge's reading of the jury charge.

C.O. is a five-year-old girl who lives with her mother and Nicholas Ford. Brossette is Ford's uncle. Brossette allegedly had a travel trailer at Lake Hawkins in Wood County, where C.O. would sometimes spend the night with him. The State alleges, and Brossette denies, that he had sexual contact with C.O.

In March 2001, C.O. was attending "Head Start" in Mineola, Texas. Deena Schoaf, C.O.'s teacher, was having lunch with C.O., and C.O. told Schoaf her "pee pee" hurt. After an inquiry by Schoaf, C.O. stated, "nobody is messing with me, not even Uncle Keith." A report was made to Child Protective Services (CPS), and an investigation ensued. C.O. gave a statement to Shanta Grundy Lockett, a CPS investigator, implicating Brossette of sexual contact on April 11, 2001. C.O. also testified at trial that Brossette "touched her."

Brossette went to the Texas Department of Public Safety office in Tyler to take a polygraph test. He requested an attorney before the test was administered. No attorney was provided after the request. Then Lieutenant Joyce Box entered the room and spoke with Brossette. Box testified that Brossette did not request an attorney in her presence, although she knew that Brossette had previously requested an attorney. Brossette gave a statement to Lieutenant Box during that interview on May 4, 2001. Brossette was arrested on May 27, 2001.

Brossette filed a motion to suppress the written statement he gave to police on May 4. This motion was denied by the trial court. This statement was admitted into evidence at trial.

A. Constitutionality of Admission of Brossette's Statement

Brossette first contends that his written statement should have been excluded from evidence because it was taken in violation of the Fifth Amendment. Brossette presented a motion to suppress the statement; the trial court denied this motion on August 8, 2001. A trial court's ruling on a motion to suppress is generally reviewed for an abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim. App.1999). However, when there is solely a question of law based on undisputed facts, we apply de novo review. Id.; Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim. App.1997). A motion to suppress alone appropriately preserves error concerning the admission of an accused's statement. Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim.App.1992).

During trial, when Lieutenant Box began to testify, Brossette objected to her testimony concerning his statement and the admission of the statement on constitutional grounds. The jury was excused, and the direct examination and cross-examination of Lieutenant Box was conducted outside the presence of the jury. After Box's testimony, the court found that Brossette was not in custody and that his statement was voluntary. Lieutenant Box was then allowed to testify concerning the statement. Brossette's counsel preserved error with the motion to suppress; however, as the statement was actually being offered during trial by the State, Brossette's counsel stated, "[w]e don't have any objection." Even after vigorously objecting to specific evidence, when the evidence is actually offered into evidence and counsel states, "no objection," this waives the challenge of the admissibility of the challenged evidence. Id. There is no requirement for counsel to renew the objection once the jury has been reseated; however, if counsel does state, "no objection" when the evidence is actually offered, this waives the objection. Id.

However, even if Brossette's counsel had not waived his objection to the admission of Brossette's statement, the statement was properly admitted into evidence. Brossette correctly asserts that the Fifth Amendment right to counsel "requires, at a minimum, some statement that can be reasonably construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." Guidry v. State, 9 S.W.3d 133, 143 (Tex.Crim.App.1999) (citing McNeil v. Wisconsin, 501 U.S. 171, 178, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991)). Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Crivello v. State, 4 S.W.3d 792, 803-04 (Tex.App.-Texarkana 1999, no pet.) (citing Berkemer v. McCarty, 468 U.S. 420, 428, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). In determining whether an individual was in custody, the court must examine all the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there [was] a `formal arrest or restraint of movement' of the degree associated with formal arrest." Rodriguez v. State, 939 S.W.2d 211, 216 (Tex.App.-Austin 1997, no pet.) (citing California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983)). The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). In light of the reasonable person test, an officer's knowledge and belief may bear on the Miranda¹ custody issue if they are conveyed to the individual being questioned; however, even a clear statement by an officer that the person under interrogation is the prime suspect is not in itself dispositive of the custody issue, because some suspects are free to come and go until the police decide to make an arrest. Stansbury, 511 U.S. at 325, 114 S.Ct. 1526.

Lieutenant Box testified to the following: that Brossette drove his own vehicle to the police station to take a polygraph test that Brossette requested to take; that she advised Brossette of all his rights, including his right to an attorney, and that he waived those rights and gave a statement; that Brossette was not handcuffed or restrained in any way; and that Brossette was not in custody when the statement was given.

Before the polygraph test was administered, Brossette requested an attorney. Lieutenant Box testified that Brossette requested to speak with her; that no attorney was provided to Brossette after his request; that Lieutenant Box entered the room with Brossette after he had requested an attorney and that she conducted the interview where the statement was given; that she knew Brossette had previously requested an attorney and no attorney had been provided; that the request for an attorney was related to the polygraph test only; that he never made the request for an attorney to her; and that Brossette left after giving the statement and was later indicted and arrested.

We find a reasonable person would not have viewed Brossette's situation as being unable to leave or being restrained in any way. Thus, Brossette was not in custody at the time his statement was given.

When an individual is in custody and requests an attorney, the individual cannot be further interrogated by the police until counsel has been provided for him or unless the suspect reinitiates the interrogation. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). While the evidence is undisputed that Brossette did request an attorney and that Lieutenant Box further interrogated Brossette after this request and before an attorney was provided, it is clear that Brossette was not in custody. Rather, Brossette was at the police station on his own volition, and he was free to leave in his own vehicle at any point. Therefore, the Edwards standard requiring termination of all police interrogation once an attorney is requested is not applicable in this case. This point of error is overruled.

B. Denial of Mistrial Concerning Testimony of Prior Bad Acts

Brossette next contends the trial court erred when it denied his request for a mistrial after a CPS investigator testified she was involved in a prior investigation where Brossette was the alleged perpetrator. We review a trial court's denial of a mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999).

Lockett, the CPS investigator, stated, "I have not had contact with [Brossette] but we had prior contact with him being the alleged perpetrator with [C.O.]." The interactions following that testimony were as follows:

[Defense Counsel]: We object to that. THE COURT: Let me ask counsel to approach.

. . .

[Defense Counsel]: That's inflammatory, you instructed her not to do that.

THE COURT: That was something if [sic] you were asked to approach.

[State]: Well, we did. In other words,...