Carmen v. State

• Decision Date: 04 April 2012
• Docket Number: No. 01–10–00124–CR.,01–10–00124–CR.
• Citation: 358 S.W.3d 285
• Parties: Ashton Joel CARMEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

358 S.W.3d 285

Ashton Joel CARMEN, Appellant,

v.The STATE of Texas, Appellee.

No. 01–10–00124–CR.

Court of Appeals of Texas, Houston (1st Dist.).

June 30, 2011.Discretionary Review Refused April 4, 2012.

John J. Davis, Angleton, TX, for Appellant.

David Bosserman, Assistant Criminal District Attorney, Angleton, TX, for State.

Panel consists of Justices KEYES, HIGLEY, and YATES.^*

OPINION

EVELYN V. KEYES, Justice.

Appellant, Ashton Joel Carmen, appeals a judgment convicting him for the murder of his father, Reginald Carmen. See Tex. Penal Code Ann. § 19.02 (West 2003). Appellant pleaded not guilty before the jury. The jury found appellant guilty of murder, returned a negative finding on the special issue of sudden passion, and assessed his punishment at life confinement in the institutional division of the Texas Department of Criminal Justice and a $5,000 fine. In three issues, appellant contends that (1) the trial court erred by admitting photographs and a video recording made during a walkthrough of appellant's father's house, (2) his trial counsel rendered ineffective assistance by failing to timely and properly object to the admission of physical evidence seized from the house, and (3) the trial court erred by overruling his objection to the State's argument on punishment that “if [appellant] kills again, that is on you.” We conclude that the trial court properly admitted the evidence, that appellant's trial counsel was not ineffective, and that the trial court properly overruled appellant's objection to the State's argument on punishment. We affirm.

Background

Appellant was born prematurely to a mother who had used crack cocaine during her pregnancy. Although he initially lived with his mother, who continued to use cocaine, appellant's maternal grandmother was his primary caretaker. When he was about six years old, appellant went to live with his father.

The next year, appellant's father whipped appellant with a belt, causing bruising on the side of appellant's body. After a teacher discovered the bruises, appellant was taken to the hospital. Child Protective Services removed appellant from his father's custody and placed him with his mother. Six months later, after appellant's father had completed anger management classes, appellant returned to live with his father.

In the years before his father's death, appellant's behavior and grades in school deteriorated. His father, being a strict disciplinarian, meted out punishments, which included whipping appellant with a belt and prohibiting him from seeing his friends. Appellant attempted to run away numerous times. Less than a month before his father's death, a juvenile court placed appellant on probation for truancy subject to certain conditions, including a requirement that he attend school every day.

On December 8, 2005, appellant returned to his father's house after school. His father's bedroom, the master bedroom, was located on the ground floor of the house. The door to the master bedroom was locked. Appellant went into the backyard and removed a screen covering a window to the master bedroom. He broke the glass and entered through the window. Appellant located a locked suitcase containing several thousand dollars cash and a .40–caliber SIG Sauer semi-automatic pistol. Taking the suitcase with him, appellant exited the room and went upstairs. Using a hammer, appellant forced the suitcase open, and he removed about $2,000 dollars and the pistol. After his father arrived home, appellant fired multiple gunshot rounds from the pistol at his father, killing him. Appellant placed a bandana over his father's face, took a shower upstairs, and then left in his father's car.

After appellant's father failed to show up to work the next morning, Friday, December 9, 2005, his employer contacted the police. The employer provided the police with appellant's father's address and a description of his car, a black Lexus. Officers DeSilvia and Herrera of the Pearland Police Department were dispatched to the house, arriving around 9:30 a.m. Officer DeSilvia knocked on the door and rang the doorbell but received no response. The front door was locked. The officers looked through a window above the door and saw a man lying on his back, not moving, with something covering his face.

Officer Herrera kicked the door open, setting off the security alarm. The officers discovered that the man lying on the floor—appellant's father—was deceased; his body was slightly stiff with rigor mortis, and he did not have shoes on his feet. Near the body lay spent shell casings and live rounds of ammunition. Officer Herrera walked from the foyer through the laundry room into the garage. The garage door was closed, and the black Lexus was missing.

After other officers arrived, Officers DeSilvia and Herrera searched the rest of the house, looking for other victims and suspects. On the dining-room table, they found a can of roach spray, a knife, a golf club, an open bottle of Dr. Pepper, and an earplug. Finding the door to the master bedroom locked, they proceeded upstairs. On the stairs, they found a spent shell casing. In appellant's bedroom, they found an earplug package matching the earplug found in the dining room. After checking the upstairs, they returned to the locked master bedroom door, which Officer DeSilvia kicked open. The room was very messy; some of the dresser drawers had been emptied out. On the floor lay an Airsoft gun resembling a small machine gun. After searching the house, Officer DeSilvia secured the premises and stood in front of the house to ensure that only authorized persons entered the property.

Officer Bort, a crime scene investigator, arrived about 30 minutes after Officers DeSilvia and Herrera. In the backyard, Officer Bort saw the screen and glass from the broken window. He then conducted a walkthrough of the house. In the foyer, he saw a black glove, a hat, a bag of groceries, and some mail near the body. He also saw bullet holes in the walls. In the laundry room, he saw the appellant's father's shoes. In the kitchen, he saw a box of ammunition next to a SIG Sauer owner's manual. He also saw a little napkin with what appeared to be a bloodstain. Upstairs, he saw a Nike glove package on a ledge overlooking the foyer. In the entertainment room, he saw a briefcase, which appeared to have been forced open with a nearby hammer. He also saw a Lexus manual and a SIG Sauer magazine. Officer Bort recorded a video of his walkthrough and took photographs of the items he observed.

That same morning, the general manager of a hotel in Texas City discovered in the parking lot an unidentified black Lexus, which was missing a front tire. Later that morning, the manager noticed that the Lexus had been moved to a nearby Sears parking lot. The manager called the police, who informed her that the car had been involved in a crime. The manager contacted Sears and discovered that Sears employees were fixing the car's tire. The manager told the Sears employees to work slowly because the police were en route. When Texas City police arrived, they found both appellant and his father's car.

Officer Hunt of the Pearland Police Department was the detective assigned to investigate the death of appellant's father. He telephoned appellant's school and learned that appellant was absent. He then contacted appellant's probation officer, who drafted a directive to apprehend based on appellant's violation of the conditions of his probation. After learning that the Texas City police had found appellant and the car, Officer Hunt went to the Sears parking lot. Shortly before 11:00 a.m., Texas City police took appellant into custody pursuant to a directive to apprehend. In the Sears parking lot, Officer Hunt observed a pistol in plain view on the floorboard of the back seat of the Lexus; however, he did not seize the pistol at that time. Both appellant and the car were transported back to Brazoria County.

Around 1:30 p.m., a magistrate judge read appellant his rights outside the presence of law enforcement personnel. After waiving his rights, appellant gave an oral statement to police, in which he admitted killing his father. Appellant stated that he was having some problems with gang members from school and that he had heard that they were going to come over to his house. He accordingly took the weapon to protect himself. Appellant claimed that he shot his father because he had mistaken him for a gang member. Within an hour, appellant disavowed this statement.

Appellant reduced his second story to a written statement. He stated that his parents had engaged in an argument about his mother's picking him up early from school and that his father had told her that he was going to impose corporal punishment on appellant sometime soon. Appellant claimed that this brought back memories of an incident seven years before in which his father's punishment resulted in appellant's hospitalization.

Shortly before 4:30 p.m. that same afternoon, December 9, the police obtained search-and-seizure warrants for appellant's father's house and car. From the house, Officer Bort seized the items that he had observed and documented during his walkthrough. From the car, he seized the pistol, which Officer Hunt had previously seen in plain view.

Before trial, appellant's counsel filed two motions to suppress. In the first motion to suppress, appellant's counsel contended that the police illegally arrested appellant without a valid warrant, probable cause, or reasonable suspicion. The first motion sought to suppress (1) evidence seized as a result of appellant's arrest, (2) evidence seized as a result of the search of appellant's person, papers, and effects, and (3) any written or oral statements that appellant made after his arrest. In the second motion to suppress, appellant's counsel contended that the police had illegally arrested appellant without a valid warrant or authority to arrest without a warrant...