Joseph v. State, No. 13-06-00561-CR (Tex. App. 7/10/2008)

• Decision Date: 10 July 2008
• Docket Number: No. 13-06-00561-CR.,13-06-00561-CR.
• Citation: Joseph v. State, No. 13-06-00561-CR (Tex. App. 7/10/2008), No. 13-06-00561-CR. (Tex. App. Jul 10, 2008)
• Parties: WESLEY CHARLES JOSEPH, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

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Unpublished Opinion

WESLEY CHARLES JOSEPH, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 13-06-00561-CR.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion Delivered and Filed July 10, 2008.

Do Not Publish. Tex.R.App.P. 47.2(b).

On Appeal from the 187th District Court of Bexar County, Texas.

Before Justices RODRIGUEZ, GARZA, and VELA.

MEMORANDUM OPINION

Memorandum Opinion by Justice GARZA.

Appellant, Wesley Charles Joseph, was convicted of murder and sentenced to twenty-five years' imprisonment. See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003). He now challenges his conviction, contending that: (1) he was arrested without a warrant, probable cause, or other lawful authority; (2) he did not make a knowing, intelligent, and voluntary waiver of his right against self-incrimination; (3) the trial court erred in admitting into evidence the entirety of his recorded interview with police; and (4) the trial court erred in failing to require in the jury charge a unanimous verdict on a specific offense. We affirm.

I. Background

On December 6, 2004, San Antonio Police Department officer James Flores was dispatched to the San Antonio Metropolitan Ministries ("SAMM") homeless shelter in downtown San Antonio, to respond to a reported "cutting" or stabbing. The victim was Javier Gonzalez-Diaz, also known as "Bolillo" or "Chilungo." As Officer Flores approached the shelter, several homeless people gave descriptions of two suspects and information as to their location. Another officer, Richard Boyle, heard this information on his radio and went to the specified location, where he identified Joseph, who matched the given description—a black male wearing a dark hooded sweatshirt—and the other suspect, Juan Martinez. At that time, Officer Boyle observed a group of people surrounding Joseph and pointing at him, saying "that's him, that's him, that's the guy." Officer Boyle and another officer commanded Joseph to get down on the ground, but Joseph did not immediately comply. After a brief struggle, the officers forced Joseph to the ground, handcuffed him and conducted a search, which revealed a blood-stained 7.5-inch single-edge knife in Joseph's front sweatshirt pocket. Two other knives were found in a backpack being worn by Martinez.

Joseph was detained and brought to the San Antonio Police Department, where he was interviewed by Detective Sean Walsh. The entire interview, lasting approximately five to six hours, was recorded on video and transcribed. During the interview, Joseph commented that "I wish I hadn't put the knives in his backpack," as well as "I don't want to die in the penitentiary." According to Detective Walsh, Joseph was inconsistent in his recounting of the events of that day, calling one such recollection his "official story." Further, Joseph apparently admitted to the crime in stating that he had done a "stab-by." At no time during the interview did Joseph blame Martinez for the stabbing.

At the same time Joseph was being interviewed by Detective Walsh, Martinez was being interviewed by Detective Curtis Walker. Martinez's interview revealed that he had a potential motive for harming Gonzalez-Diaz; namely, Martinez believed that Gonzalez-Diaz had attacked and raped his wife, Vivian, who was also Joseph's girlfriend. Joseph concedes that he and Martinez "had the same motive for hurting" Gonzalez-Diaz. In fact, Vivian came to the police station during Joseph's interrogation out of concern for Joseph.

On June 29, 2005, a Bexar County grand jury indicted Joseph on one count of murder.¹ The indictment also included an enhancement paragraph alleging that Joseph had been twice previously convicted of burglary of a building in Victoria County, once in 1987 and once in 1992. See id. § 30.02 (Vernon 2003).

A trial was conducted before a Bexar County jury from June 21 to 25, 2006. At trial, the State presented testimony from Officers Flores and Boyle, as well as crime scene technician Joe Rodriguez. Rodriguez testified that he collected three knives from the crime scene, as well as clothing found at the scene; he also testified that Joseph had no wounds, no blood on his hands, and no apparent blood on his clothing at the time of his arrest.

Also testifying for the State was Garon Foster of the Bexar County Criminal Investigation Laboratory, who analyzed the knife recovered from Joseph's pocket. Foster testified that the blood on the knife matched the genetic profile of the victim, Gonzalez-Diaz.

Carlos Ortiz, a friend of Gonzalez-Diaz, testified that he witnessed the stabbing. Ortiz saw Joseph "punch" Gonzalez-Diaz in the stomach five or six times, and he then observed Joseph putting something under the sweater he was wearing. Ortiz testified that he went over to his friend, who was bleeding; he then followed Joseph away from the scene and pointed him out to police officers. Ortiz also observed a woman present at the crime scene but could not identify her.

Dr. Kimberly Molina of the Bexar County Medical Examiner's Office testified that Gonzalez-Diaz had been stabbed three times in the chest region and also suffered some small scratches and bruises, and that he died as a result of the stab wounds.

During Detective Walsh's testimony, the State sought to introduce into evidence the video recording of Joseph's interview, including the alleged confession. The trial court then held a Jackson v. Denno hearing outside the presence of the jury to determine the admissibility of the recorded material.² See Jackson v. Denno, 378 U.S. 368, 380 (1964); see also Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). During that hearing, Detective Walsh testified that he had informed Joseph of his right to remain silent. Detective Walsh also stated that Joseph had signed a card advising him of his rights, expressed that he understood his rights, and did not ask for an attorney or for the interview to cease. The trial court found that the DVD recording of Joseph's statement would be admissible, provided that the State redact portions that were inadmissible or irrelevant, such as declaratory statements made by the police officers and questions asked by the officers which Joseph did not answer affirmatively.³

Joseph testified in his own defense. He stated that he knew Martinez as a friend but acknowledged that he had had sex with Martinez's wife, Vivian. According to Joseph, Martinez telephoned him on December 5, 2004, to inform him of Vivian's report that she had been attacked and raped by Gonzalez-Diaz. Joseph knew Gonzalez-Diaz, as they had both stayed at the SAMM shelter previously. Joseph testified that he accompanied Martinez to the shelter to confront Gonzalez-Diaz, and that he took his backpack with him which contained two knives he used for cooking at his job at a rest stop on Interstate 10. Joseph stated that Martinez took the backpack from him when Joseph went into a store near the shelter to buy beer. He further stated that Martinez intended to beat up Gonzalez-Diaz, not to stab him, and that Joseph was to get involved only if Martinez needed protection.

Joseph testified that he observed Martinez "punching" Gonzalez-Diaz, but that he did not see a stabbing. He then approached the two men in case Martinez needed help, explaining as follows:

[The fight] continues. I walk across the street. I come up on the sidewalk and I saw the knife, and I hit him. I hit him [Martinez] on the arm and the knife fell down, and I said, "Man, are you stupid. You said kick his ass, not kill him. What are you doing." And I grabbed him and I pushed him. I looked down at the knife. Chilungo is still standing there, I looked down at the knife, I didn't see no blood, so I say, okay, he didn't do nothing. I picked it up and put it in my front pouch, because, you know, he's standing there, you know, he's not on the ground, he's not — I don't see no blood on him either . . . so, I'm not going to leave the knife there. Juan, this is my partner. He's punching this dude. Okay? Knife is on the ground. So, if I turn around with the knife on the ground, he'd pick the knife up and he'd stab me or Juan; so, I'm not going to leave the knife on the ground. And plus, it's my knife.

Joseph testified that he and Martinez then walked away from the scene and that he was arrested five to seven minutes later. He explained that he did not get on the ground immediately when asked by the police because another officer was telling him not to move. Further, he explained that his subsequent comments to Detective Walsh at the police station about his "official story" and about doing a "stab-by" were merely jokes. Joseph testified that he did not originally blame Martinez for the stabbing because he wanted to protect Martinez and Vivian, whom he believed Martinez would protect.

The jury unanimously found Joseph guilty as charged in the indictment, found the enhancement allegations in the indictment to be true, and assessed Joseph's punishment at twenty-five years' confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal ensued.

II. Discussion

A. Warrantless Arrest

By his first issue, Joseph claims that all evidence obtained as a result of his arrest, including the knife found in Joseph's sweatshirt pocket and his recorded interview with police, should have been suppressed because his warrantless arrest violated the Fourth Amendment to the United States Constitution. See U.S. Const. amend. IV; Tex. Code Crim. Proc. art. 38.23 (Vernon 2005).⁴ We disagree.

1. Standard of Review

We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give "almost total deference" to the trial court's findings of historical fact supported by the record, but we review its application of the law to the facts under a de novo standard of review. Id. at 327; see Guzman v. State, 955 S.W.2d 85,...