MBUGUA v. State

• Decision Date: 17 March 2010
• Docket Number: No. 01-07-00690-CR.,01-07-00690-CR.
• Citation: 312 S.W.3d 657
• Parties: Michael MBUGUA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

312 S.W.3d 657

Michael MBUGUA, Appellant, v.The STATE of Texas, Appellee.

No. 01-07-00690-CR.

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

August 21, 2009.

Discretionary Review Refused March 17, 2010.

COPYRIGHT MATERIAL OMITTED

Jani J. Maselli, Houston, TX, for Appellant.

Michael Mbugua, Kenedy, TX, pro se.

Bridget Holloway, Assistant District Attorney-Harris County, Dan McCrory, Assistant District Attorney, Houston, TX, for Appellee.

Panel consists of Justices BLAND, SHARP, and TAFT.^*

OPINION

TIM TAFT, Justice(Retired).

A jury convicted appellant, Michael Mbugua, of the offense of murder and assessed punishment at life in prison.SeeTEX. PENAL CODE ANN. § 19.02(b)(1)(Vernon 2003).We determine whether (1)the trial court abused its discretion in failing to suppress appellant's statement; (2) this appeal should be abated and the trial court required to submit findings of fact and conclusions of law regarding the denial of appellant's motion to suppress; (3)the trial court erred in not submitting a jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure;¹ and (4) the exclusion of portions of appellant's medical records from evidence was reversible error.We affirm.

Facts

Kimberly Watkins and Blair Brown were driving westbound on West Bellfort in Houston, Texas, on the night of May 13, 2006, when they saw the complainant lying facedown in the road.They stopped at an Auto Zone store parking lot, and Watkins exited the car to help the complainant.When Watson approached him, she saw that he was covered in blood.She bent down to check on him and touched his neck.He was breathing and making a humming sound, but was not moving or speaking and did not respond to her.Watson stood up and waved her arms to deter cars from accidentally hitting him, turning around occasionally to check on the complainant.Brown was trying to call 9-1-1; she had borrowed a cell phone from a Pizza Hut delivery driver in the same parking lot, but the phone was not working properly.Within a minute or so, Watson saw a young man come across the street and approach the complainant, and she asked him if the complainant"was okay."He did not answer her and, when she turned, she saw him stabbing the complainant with a knife—first in the back about five times, and then lifting the complainant's head and slitting his throat twice.Brown also saw the attack.The man then stepped back calmly, dropped the knife, and slowly walked away.According to Brown and Watson, the complainant did not have a weapon.After the assault, other cars stopped, and Brown was able to borrow another person's cell phone and place a call to 9-1-1.

After the ambulance arrived, Watson noticed a vehicle across the street in someone's front lawn, as if an accident had occurred.The vehicle was on the opposite side of the street from the Auto Zone and on the same side of the street from whence the assailant had come.

The complainant, later identified as Bruce Caldwell Jr., died from his injuries.Brown and Watson were able to give a description of the assailant to the police, but neither was able to identify him from a police photographic spread.

Houston Police DepartmentSergeant Mark Newcomb investigated the murder scene and noticed that a car had driven up onto a nearby lawn, hitting some landscaping in the yard.The keys were still in the car, the passenger side door was open, and there was blood in the car and a trail of blood leading from the car to the spot on the street where the complainant was attacked.Two knives were recovered from the scene, and another was later found in the car.²A piece of human finger was later recovered from the driver's seat of the vehicle.

Newcomb determined that the wrecked vehicle was registered to appellant and went to appellant's home around 2:30 a.m. on the same night of the incident, but did not find him.The next day, Newcomb spoke to appellant by telephone.At that time, appellant was at his parents' home, being treated by emergency medical technicians for an injury to his hand.Appellant agreed to make a statement and was transported by the police to the Homicide Division, where appellant gave a videotaped oral statement regarding the incident.

In his statement, appellant explained that he and the complainant had been traveling to Wal-Mart in appellant's car, which appellant was driving.He and the complainant were talking about business, but appellant felt that, "between the lines,"the complainant was talking about how he was going to kill appellant.

Appellant said that he and the complainant had been partners in the music business,³ but the complainant had broken the partnership by trying to kill him.According to appellant, the complainant had felt it necessary to put a price on appellant's head, had "a lot of people ... coming to appellant's house trying to kill"appellant, and had told appellant that he was going to kill him, his mother was going to kill him, his father, a police officer,⁴ was going to kill him, and other people were going to kill him.The complainant had threatened appellant periodically over the previous few weeks.Appellant carried two knives in his car for personal protection.Appellant never reported these threats to the police.

The night of the incident, appellant and the complainant"got into an altercation" and appellant"had to pull out his knife."He did not know if the complainant had a weapon; he did not see one.Appellant stabbed the complainant twice in the arm or shoulder.During the scuffle, the complainant cut appellant, injuring him.The complainant grabbed the steering wheel, he turned the car into the yard, and they hit a curb.The complainant then jumped out of the car and ran.Appellant followed the complainant into the median to find out what was wrong with him, to see if he was all right, and to help him; he made it within a few feet of the complainant, but ran when he heard someone rack a shotgun.He kept running because he was afraid that someone was trying to kill him and he walked all night, finally arriving at his parents' house.He expressed surprise in learning from the interviewing officer that the complainant was dead, said, "Damn," repeatedly, and asked, "So, what am I looking at?"When the officer asked appellant why he stabbed the complainant in the median, he answered, "I don't even remember," and when the officer asked appellant if he did not remember stabbing the complainant after leaving the car, appellant answered, "Damn."

After the interview, Newcomb went down to the second floor of the same building, signed a formal complaint charging appellant with murder, and then, once the complaint went to the clerk's office, arrested appellant, who was booked in and charged with murder.

Appellant filed a motion to suppress the oral statement, which was denied after a hearing.The videotaped oral statement was played to the jury at appellant's trial, over appellant's objection.⁵At trial, appellant asserted a claim of self-defense and called two witnesses.The first was his mother, who testified about appellant's fear that the complainant was going to kill him, his arrival at home in the early hours on the morning after the incident, and police actions on the night of the incident and the following morning, as they searched for appellant at his home and ultimately took him to the police station to make a statement.His second witness was Dr. Vincent Di Maio, a forensic pathologist, who testified that the complainant was likely killed by the wound to the heart, not the wounds to the neck, and that appellant's wounds were consistent with being defensive wounds.⁶Appellant did not testify.

Denial of Appellant's Motion to Suppress

In his first issue, appellant contends that the trial court erred by denying his motion to suppress his statements because appellant was in custody and "had clearly invoked his right to an attorney, in violation of state law and the Constitution."In his third issue, appellant contends that the trial court erred in failing to suppress his statement "because he was in custody at the time it was given and he was not given his Miranda⁷ warnings in violation of state law and Constitution."

A.The Motion to Suppress

Appellant filed a motion to suppress any statements made by him,⁸ asserting that:

(1) any conversations between himself and law enforcement officials occurred when he was under arrest or substantially deprived of his freedom by law enforcement officials;

(2) any statements made were involuntary, coerced, and enticed;

(3)he was deprived of his right to counsel and did not make an intelligent and knowing waiver of that right;

(4) his statements were tainted by an illegal and unlawful detention in violation of his constitutional rights under "the Fifth and Fourteenth Amendments of the Constitution to the United States, Article 1, Section 9 of the Texas Constitution, andArticle 38.23 of the Texas Code of Criminal Procedure";

(5) his statements "were taken without the safeguards required by and in violation of Article 38.22 of the Code of Criminal Procedure"; and

(6) the admission of his statements "is a violation of appellant's rights pursuant to the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States, Constitution, Article I, Sections 9and10 of the Texas ConstitutionandArticles 1.05 and 38.23 of the Texas Code of Criminal Procedure."

The trial court held a hearing on the motion, at which the State called four witnesses—Darryl Smith, Hilario Galvan, Anthony Wayne Duncan, and Newcomb.Appellant called his father, Joe Mbugua.The court also had before it the videotape of the interview, a transcript of the same, and several photographs that had been admitted into evidence.

At the conclusion of the evidence, the State argued that the requirements of article 38.22 did not apply because appellant had not been under arrest until after he made his initial admissions, at...