Lemmons v. State

• Decision Date: 13 February 2002
• Docket Number: No. 04-00-00557-CR.,04-00-00557-CR.
• Parties: Logan James LEMMONS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

75 S.W.3d 513

Logan James LEMMONS, Appellant, v. The STATE of Texas, Appellee.

No. 04-00-00557-CR.

Court of Appeals of Texas, San Antonio.

February 13, 2002.

Rehearing Overruled March 21, 2002.

Appeal from the 216th Judicial District, Bandera County, Texas, No. 3753-Kendall

County; No. 3115-99-Bandera County,¹ Stephen B. Ables, Judge.

M. Patrick Maguire, Kerrville, for Appellant.

E. Bruce Curry, District Attorney, Kerrville, for Appellee.

Sitting: SARAH B. DUNCAN, KAREN ANGELINI and SANDEE BRYAN MARION, Justices.

KAREN ANGELINI, Justice.

Logan James Lemmons was convicted of capital murder and sentenced to life imprisonment. On appeal, Lemmons argues that the trial court erred by denying his motion to suppress, by refusing to give a limiting instruction to the jury, by permitting the State to introduce an extraneous offense, by denying his motion for continuance, and by overruling his objections to the State's closing argument. Additionally, Lemmons maintains that he was denied effective assistance of counsel. We affirm the judgment of the trial court.

BACKGROUND

On the night of January 1, 1999, Lemmons was staying with his friend and co-worker Johnny Sizemore. Lemmons borrowed a pair of Sizemore's blue jeans and went to the Star Gate Game Room with Sizemore, Sizemore's brother Alfred, and Sam Pozzi. After spending an hour at the game room, they fished for a couple of hours at a nearby lake. Lemmons, Sizemore, and Pozzi then went back to the Sizemore residence. Sometime between 2:00 a.m. and 3:00 a.m. on January 2, 1999, Lemmons announced that he was going to go have sexual relations and started walking down the road in the direction of a mobile home, occupied by Tracy Baker and Michael Bussey, which is located about a half mile from the Sizemore residence. Lemmons and Sizemore left for work together the next morning. While at work, Sizemore noticed that Lemmons was having a difficult time performing his job and appeared to be in pain. Lemmons showed Sizemore a small puncture wound in his upper right chest, explaining that a piece of glass or a stick had punctured him. Lemmons said that he had been engaging in sexual relations with a girl named Katie when her mom and dad had come home. He claimed that he had jumped out the window and thought he must have fallen on something.

That same morning, Baker and Bussey were found in their mobile home stabbed to death. Investigating the murder scene, Chief Deputy Matthew L. King observed a jacket on the front porch of the mobile home. Clifton Sales, Lemmons's brother, identified the jacket as the one that Lemmons had been wearing on the evening of the murders. Inside the mobile home, King discovered a shirt and an undershirt, which appeared to have blood on them. There was a hole in each shirt, indicating that the person who had been wearing the shirts might be suffering from a stab wound to the upper right chest area. Moreover, a car was missing from the Baker residence and appeared to have been stolen by the killer. The car was found partially concealed among some cedar trees less than 500 feet from the Sizemore residence.

The next day, January 3, 1999, Joyce Sizemore found a pair of blue jeans on her driveway, which she recognized as belonging to her son, Johnny Sizemore. Joyce noticed a grease-like substance on the jeans and threw them into the washing machine with her other laundry. Tests later indicated that the stain on the jeans was blood consistent with Baker's.

Lemmons was arrested on the night of January 3, 1999 and was interrogated into the early morning hours of January 4, 1999 by Texas Rangers Martin and Leal. Ranger Martin warned Lemmons of his rights pursuant to article 38.22 of the Code of Criminal Procedure.² At the end of this interrogation, Lemmons stated,

Lemmons: I'm done for the evening sir, please. I'm ... for the evening at least. If you all would like to talk tomorrow or something, I would be more than willing to talk. But for the evening or until I can get a lawyer ...

Martin: OK.

Lemmons: Please. Because I did not kill them people like that and I got stabbed before I ever stabbed anyone. And I only stabbed one person there. And that's the truth.

Martin: That will conclude the interview with Logan Lemmons.

(emphasis added). Lemmons was then taken before a magistrate and warned again pursuant to article 15.17 of the Code of Criminal Procedure.

On January 11, 1999, Lemmons was again interrogated, this time by Ranger Martin and Chief Deputy King. The police had obtained two pieces of luggage that Lemmons had left at his place of work. Lemmons consented to the search of the luggage, signing a written consent form. The officers then began their interrogation. They pulled some blue jeans from the luggage and asked Lemmons if these were the blue jeans he was wearing on the night of the murders. Lemmons replied that no, those jeans were most likely still at the Sizemore residence. Lemmons repeatedly stated that he did not want to talk to them until he talked to "someone." After about twenty minutes, Lemmons finally unequivocally stated that he wanted an attorney. At no time during this interrogation did the officers read Lemmons his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

On January 14, 1999, King again summoned Lemmons, asking him to consent to a blood sample. Lemmons agreed and signed a consent form.

On January 15, 1999, two officers went to the Sizemore residence to photograph shoes and footprints. While at the residence, they asked Joyce Sizemore if she knew of anything else that might be related to the investigation. Joyce Sizemore gave them the blue jeans she had found in her driveway.³

On April 25, 2000, the State obtained a search warrant to extract a blood sample from Lemmons.

MOTION TO SUPPRESS BLOODSTAINED BLUE JEANS

In his first issue, Lemmons argues that the trial court erred by failing to suppress the blue jeans discovered as a result of the January 11, 1999 interrogation. Lemmons contends that he invoked his right to counsel at the end of the interrogation on January 4, 1999 and that when the officers interrogated him on January 11th, his Fifth, Sixth, and Fourteenth Amendment rights, as well as his rights under article I, section 10 of the Texas Constitution, were violated.⁴ As such, Lemmons maintains that the blue jeans should have been suppressed, because the State learned the location of the blue jeans through an illegal interrogation. The trial court suppressed Lemmons's statements, because it found that the officers had not complied with article 38.22 of the Code of Criminal Procedure, Texas's codification of the Miranda warnings.⁵ However, the trial court did not suppress the blue jeans, because it found that Lemmons had not been coerced during his January 11th interrogation.⁶ See Baker v. State, 956 S.W.2d 19, 24 (Tex.Crim.App.1997) ("[M]ere violations of the Miranda rule are not covered by the state exclusionary rule contained in Article 38.23.").

We review a trial court's ruling on a motion to suppress for abuse of discretion. State v. Mata, 30 S.W.3d 486, 488 (Tex. App.-San Antonio 2000, no pet.). Under this standard, we view "the evidence in the light most favorable to the trial court's ruling," affording almost total deference to findings of historical fact supported by the record. Id. However, when the resolution of factual issues does not turn upon credibility or demeanor, we review the trial court's application of law de novo. Id.

A. Fifth Amendment Right to Counsel

In Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Supreme Court held that a request for counsel must be "unambiguous," meaning that the suspect 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." Merely mentioning the word "lawyer" is not an explicit invocation of the right to counsel. Russell v. State, 727 S.W.2d 573, 575-76 (Tex.Crim.App.1987). Courts have found that suspects did not unequivocally invoke their right to counsel where (1) the suspect asked the officers whether they thought the presence of an attorney was necessary, Id. at 576, (2) the suspect stated, "Maybe I should talk to someone," Dinkins v. State, 894 S.W.2d 330, 350-52 (Tex.Crim.App.1995), and (3) the suspect asked the detective what he thought a lawyer would tell the suspect to do, Id. at 352. Davis itself held that the suspect's comment, "Maybe I should talk to a lawyer," was not an unambiguous articulation of a desire for counsel. Davis, 512 U.S. at 462, 114 S.Ct. 2350. On the other hand, no magic words are necessary to invoke the right to counsel. Dinkins, 894 S.W.2d at 352; Russell, 727 S.W.2d at 576; see Jamail v. State, 787 S.W.2d 372, 375 (Tex.Crim.App.1990) (noting that defendant's statement, "Now it's time for me to call my lawyer," was clear and unequivocal request for counsel).

Lemmons's statement that he would be more than willing to talk to the officers tomorrow "or until I can get a lawyer" is not an unambiguous invocation of his right to counsel. "Or" makes Lemmons's request conditional and thus, equivocal. As Lemmons had not invoked his Fifth Amendment right to counsel at the time the officers questioned him about the blue jeans on January 11th,⁷ his Fifth Amendment rights were not violated.

B. Sixth Amendment Right to Counsel

The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel was made applicable to state felony prosecutions by the Due Process Clause of the Fourteenth Amendment. Wesbrook v. State, 29 S.W.3d 103, 117 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001). Attachment of this...