Fontenot v. State, No. 14-05-01140-CR (Tex. App. 4/26/2007)
| Decision Date | 26 April 2007 |
| Docket Number | No. 14-05-01140-CR.,14-05-01140-CR. |
| Parties | ERNEST JOSEPH FONTENOT, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 1017374.
Affirmed.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
Appellant Ernest Joseph Fontenot appeals his conviction for aggravated robbery, asserting that the trial court erred in (1) allowing the State to make an opening statement during the punishment phase of his trial, (2) admitting evidence obtained from a warrantless search of his hotel room, and (3) overruling his objection to an allegedly impermissibly suggestive pretrial identification process. Because there is no statutory preclusion of opening statements during the punishment phase, we hold the trial court did not err in permitting the State to make such a statement. We further hold that the trial court did not abuse its discretion by overruling appellant's evidentiary objection. Finally, we hold that appellant has not demonstrated that the in-court identification of him by an extraneous offense witness was in any way tainted by an allegedly impermissibly suggestive pretrial identification procedure. Thus, we affirm the judgment of the trial court.
Appellant has not challenged the legal or factual sufficiency of the evidence, we therefore discuss the facts only briefly here and throughout the opinion as necessary to address appellant's issues.
Around 11:00 p.m. on January 27, 2005, appellant accosted the complainant, a male Rice University graduate student, with a gun outside the complainant's apartment, demanding the complainant's money. He then ordered the complainant to remove his clothing, but, after discovering the complainant lived alone, ordered him to put his clothes back on. Appellant followed the complainant into his apartment, ordered him to crawl into his bedroom, and again ordered him to remove his clothes. After binding the complainant's hands and feet, appellant began rummaging around his apartment.1 At some point thereafter, appellant returned and released the complainant. Appellant then sexually assaulted the complainant, after which he rebound the complainant's hands and feet. After threatening to kill the complainant if he moved and telling him he would be back shortly, appellant left. The complainant remained still for about ten to fifteen minutes, but then realized appellant was not coming back and managed to free himself from the binding. He got dressed and quickly went to a nearby apartment to call the police. After an investigation, appellant was arrested in February 2005.
During his trial, appellant sought to suppress certain evidence obtained by police through a warrantless search of a hotel room he occupied. He argued that he did not consent to this search. After a hearing conducted outside the presence of the jury, the trial court found that appellant had consented to the search and admitted this evidence. A jury found appellant guilty of aggravated robbery and, after hearing extensive evidence regarding extraneous offenses and finding two enhancement paragraphs true, sentenced him to life in prison.
Appellant presents three issues for our review. First, he complains that the trial court improperly allowed the State to make an opening statement during the punishment phase of trial. Second, he contends that the trial court erroneously admitted evidence obtained from appellant's hotel room because the State failed to present sufficient evidence that his consent was freely and voluntarily given. Finally, appellant asserts that the trial court erred in overruling his objection to an impermissibly suggestive pre-trial identification procedure.
In his first issue, appellant argues that the trial court erred in permitting the State to make an opening statement during the punishment phase of trial because such statements are permitted only during the guilt/innocence phase of trial.2
Although article 36.01 of the Texas Code of Criminal Procedure specifically provides for opening statements and sets forth the order of proceedings for the guilt/innocence portion of trial, that article does not apply to the punishment phase. See Penry v. State, 903 S.W.2d 715, 760 (Tex. Crim. App. 1995) (per curiam) (). On the other hand, article 37.07, which establishes procedures for the punishment phase, is silent regarding opening statements. See TEX. CODE CRIM. PROC. ANN. art. 37.07 (Vernon Supp. 2005); cf. Penry, 903 S.W.2d at 760 ().3 Moreover, nothing in Penry indicates that the State is prohibited from presenting an opening statement at the punishment phase. Finally, appellant has not cited, and we have not found, any case holding that the State is prohibited from presenting an opening statement during the punishment phase of trial4 when the same opportunity is provided to the defendant.5
Here, the trial court afforded both the State and appellant the opportunity to present opening statements. Because article 37.07 does not prohibit such statements at punishment and both parties had the opportunity to present them, we hold the trial court did not err in permitting the parties an opportunity to do so in this case. Thus, we overrule appellant's first issue.
In his second issue, appellant contends that he did not consent to the search of his hotel room where the inculpatory evidence was found. Thus, he asserts that the trial court erred in admitting this evidence over his objection.
We review a trial court's ruling on a motion to suppress for abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc). At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991) (en banc). The judge may believe or disbelieve any or all of the witnesses's testimony. Id. If the trial court's fact findings are supported by the record, we may not disturb them unless the trial court clearly abused its discretion. Id.
In this case, the trial court held a hearing outside the presence of the jury to determine the voluntariness of appellant's consent to search his hotel room. At this hearing, Sergeant Frank Quinn and retired officer Julie Hardin from the Houston Police Department testified for the State.6 Quinn testified that he read appellant his rights and that he was present when appellant signed a written consent form allowing officers to search his storage unit at a storage facility. According to Quinn, appellant voluntarily consented orally to the search of his hotel room, but subsequently refused to sign another written consent form. Quinn testified that no promises or threats were made to obtain appellant's consent to the searches. Hardin testified that she also advised appellant of his rights before questioning him and obtaining his consent to search. According to Hardin, appellant voluntarily consented orally to the search of his hotel room after he had already signed the written consent for the search of his storage unit. She testified that he was unwilling to sign any more papers. Hardin also stated that appellant was not threatened before he consented to the searches.
During cross-examination of the officers, appellant pointed out some apparent inconsistencies between the officers' live testimony and the notes made in Hardin's offense report. Both officers, however, described a similar sequence of events surrounding appellant's consent to search his hotel room. Finally, appellant testified that he signed the written consent form authorizing the search of his storage unit, but that he did not consent to the search of his hotel room.
In determining that the evidence obtained from the searches was not inadmissible based on a lack of consent, the trial court found that "consent was freely and voluntarily given without any threats, without any promises, without any coercions [sic] after a warning given by two officers." Thus, the trial found the officers' testimony more credible than appellant's testimony. The trial court was authorized to make this determination and these factual findings are supported by clear and convincing evidence in the record. Further, appellant does not explain how the trial court's decision to admit this evidence is arbitrary or unreasonable. Under these circumstances, we cannot conclude that the trial court abused its discretion.7 We overrule appellant's second issue.
In his third issue, appellant complains that the trial court improperly overruled his objection to an allegedly impermissibly suggestive pre-trial identification procedure. "In considering the scope of due process rights afforded a defendant with regard to the admission of identification evidence, the United States Supreme Court has held that a pretrial identification procedure may be so suggestive and conducive to mistaken identification that subsequent use of that identification at trial would deny the accused due process of law." Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001). It is therefore not the pretrial identification procedure itself that denies an accused due process of law, but rather the subsequent use of an in-court identification obtained through an impermissibly suggestive pretrial procedure that...
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