Hartwell v. State

• Decision Date: 02 July 2015
• Docket Number: NUMBER 13–14–00087–CR
• Parties: Ross Allen Hartwell, Appellant, v. The State of Texas, Appellee.
• Court: Texas Court of Appeals

476 S.W.3d 523

Ross Allen Hartwell, Appellant,

v.The State of Texas, Appellee.

NUMBER 13–14–00087–CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed July 2, 2015.

Rehearing Overruled on Merits September 3, 2015

Discretionary Review Refused December 9, 2015

Rehearing Denied February 10, 2016

Paul M. Evans, Austin, TX, for Appellant.

Rosemary Lehmberg, District Attorney, Angie D. Creasy, Assistant District Attorney, Austin, TX, for Appellee.

Before Justices Rodriguez, Garza, and Longoria

OPINION

Opinion by Justice Rodriguez

Appellant Ross Allen Hartwell appeals from a judgment rendered by the 390th District Court of Travis County, Texas.¹ A jury found Hartwell guilty of aggravated robbery with an affirmative deadly weapon finding. See TEX. PENAL CODE ANN. § 29.03 (West, Westlaw through 2015 R.S.). The jury found two enhancement paragraphs to be true and assessed punishment of seventy years' imprisonment. Hartwell raises ten issues on appeal. We affirm in part and reverse and remand in part.

I. BACKGROUND

Christina Morman, the complainant, testified at trial that on March 26, 2012, she was working the night shift at a Popeye's restaurant in Austin, Texas. She finished her shift at 11 p.m. and was in the process of leaving the Popeye's premises when she realized that she forgot her cigarette lighter. She parked her van near the front entrance of the restaurant, left her engine running, and went back inside to get her lighter. Upon returning to her vehicle she saw a person in the front passenger seat of her van. Morman ran to her van, put her hand on the door, and said "[h]ey, this is my car." The driver then reversed out of the parking space in such a way that the front end of the vehicle struck Morman and knocked her to the ground. The driver paused for a few seconds before running Morman over. Morman was dragged underneath the vehicle for approximately 246 feet before being dislodged. Co-worker Alexis Blount witnessed the event and corroborated Morman's testimony at trial.

Co-defendant Joshua Voigt testified that he was with Hartwell when they stole Morman's vehicle: Voight was in the passenger seat, and Hartwell was in the driver's seat. Voight saw Morman run to the van and testified that she tried to open the rear passenger sliding door. He heard her "cuss", "yell at [them] to stop", and say, "[h]ey, this is my car." When Hartwell reversed the vehicle and knocked Morman to the ground, Voigt saw Morman lying on the ground in front of the vehicle. When Hartwell put the vehicle in drive and ran over Morman, Voigt testified that he heard a thump and felt the wheels go over Morman's body. He also testified that he could hear Morman screaming.

Detective Steve Boline with the Austin Police Department interviewed Hartwell that same day. The trial court admitted a redacted video of the custodial interview into evidence. The recording showed that Hartwell initially denied any involvement but later admitted to stealing Morman's vehicle. Hartwell admitted that he was the driver and that he put the van in reverse and backed out of the parking space. Hartwell claimed he decided to abandon the robbery upon seeing people running towards him after he reversed out of the parking space. He claimed Voigt reached over and grabbed the door, preventing him from exiting the vehicle. Hartwell also claimed that he was pressing on the brake, but Voigt reached down and depressed the gas pedal with his hand. Hartwell admitted during the interview that he saw someone in front of the vehicle but denied knowledge that he ran over anyone.

The jury found Hartwell guilty of aggravated robbery with an affirmative deadly weapon finding. See id. Hartwell elected to have the jury decide punishment and entered a plea of "not true" to the enhancement allegations put forth by the State. The jury found two enhancement paragraphs to be true and assessed a term of seventy years' imprisonment, and the trial court sentenced Hartwell accordingly. This appeal followed.

II. FIFTH AMENDMENT RIGHT TO COUNSEL

By his first issue, Hartwell contends that he invoked his right to counsel during his custodial interview and that any statements made after he invoked his right to counsel were inadmissible.

A. Standard of Review & Applicable Law

In reviewing claims concerning the admission of statements made as the result of custodial interrogation, we conduct the bifurcated review articulated in Guzman v. State.See Pecina v. State, 361 S.W.3d 68, 78–79 (Tex.Crim.App.2012) (citing Guzman v. State , 955 S.W.2d 85, 89 (Tex.Crim.App.1997) ). We afford almost total deference to the trial court's rulings on questions of fact and on questions involving the application of law to fact that turn upon a witness' credibility and demeanor.² Id. at 79. We review de novo the trial court's rulings on questions involving the application of law to facts that do not turn upon a witness' credibility and demeanor. Id. However, as the Pecina Court explained, in deciding whether an accused has "actually invoked his right to counsel," the Supreme Court has dictated that we use an objective standard "to avoid difficulties of proof and to provide guidance to officers conducting interrogations." Id. (citing Davis v. United States, 512 U.S. 452, 458–59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ).

When a defendant asks for a lawyer, questioning must cease until counsel has been provided or the defendant initiates further communication with the police. Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Once a suspect has invoked his right to counsel, no subsequent exchange initiated by the police can serve to undermine the clarity of the invocation. State v. Gobert, 275 S.W.3d 888, 894–95 (Tex.Crim.App.2009).

However, before a duty to terminate an interrogation arises, a defendant's request for counsel must be clear—the police are not required to attempt to clarify ambiguous or equivocal remarks. Davis v. United States, 512 U.S. 452, 461–62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ; Pecina, 361 S.W.3d at 79. The accused must unambiguously request counsel during a custodial interrogation. Pecina, 361 S.W.3d at 79. To unambiguously request counsel, the accused "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. "A statement either is such an assertion of the right to counsel or it is not." Id. We view the totality of circumstances from the viewpoint of the objectively reasonable police officer conducting a custodial interrogation. Id. at 458–59, 114 S.Ct. 2350 ; Pecina, 361 S.W.3d at 79.

B. Discussion

Detective Boline interviewed Hartwell after he was arrested for the instant offense. Hartwell waived his Miranda rights³ and agreed to speak with Detective Boline. Though Hartwell initially denied any knowledge of the incident, the following exchange occurred during the interrogation:

Hartwell: Okay. What—what would you do—I know it's hard for you to put yourself in this situation but—

Det. Boline: Try me.

Hartwell: Should I—should I call that attorney friend of mine to see what he thinks?

Det. Boline: That's a decision you have to make. I mean, I can't—I can't answer that for you.

Hartwell: I mean, even in most (inaudible) anybody's willing to—I mean, I'd be willing to let anybody in also with—with—with me and my lawyer or—or me—he's not my lawyer, he's just a friend of my attorney but—

Det. Boline: Let me ask you this, was he there?

Hartwell: My attorney?

Det. Boline: Yeah, was he there that night?

Hartwell: No.

Det. Boline: So what is he going to be able—I mean, this is your call. I'm not gonna try and talk you out of one way or another; if you want to call him, that's fine, but you and I will not be able to talk again and—and I'm—and this is—this is—

Hartwell: See that's what I mean. I mean you're nice and—and—

Det. Boline: No, no, no, no.

Hartwell: —you're great but—

Det. Boline: They're not gonna let me talk to you. Would I want to come down—I can come down and visit with you but I'm not gonna be able to help you try and help yourself. Does that make sense? This is weighing—this is weighing heavy on you. It's not gonna go away. The only thing you can do at this point is to try and help yourself out, and by—by that, I mean explaining your side of it.

Hartwell continued to talk to Detective Boline and went on to admit his involvement in stealing Morman's vehicle. He also wrote two statements regarding the events of the night in question—those statements, along with a redacted version of his oral interview—were admitted into evidence at trial.

We must initially determine whether Hartwell's statements to Detective Boline constituted an unambiguous invocation of his right to counsel. See Pe c ina, 361 S.W.3d at 79. The Supreme Court in Davis found Davis's statement that "maybe [he] should talk to a lawyer" was not a request for counsel. 512 U.S. at 461–62, 114 S.Ct. 2350. The Court stated it was "unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer." Id. at 462, 114 S.Ct. 2350. The court of criminal appeals has also determined that a suspect's statement that he "should have an attorney" was not a clear request for counsel. See Davis v. State, 313 S.W.3d 317, 341 (Tex.Crim.App.2010). In deciding that the above statement was not an unequivocal request for counsel the court of criminal appeals determined "appellant's statement was not in the form of a request nor did appellant expressly say that he wanted a lawyer." Id.

Hartwell agrees that his question to Detective Boline, "should I maybe call my attorney friend and see what he thinks," was not an unequivocal and unambiguous request for counsel. However, Hartwell contends that his question regarding counsel, considered in context with the remainder of the conversation, was an affirmative...