McClenton v. State, 10-03-00099-CR.

• Decision Date: 20 April 2005
• Docket Number: No. 10-03-00099-CR.,10-03-00099-CR.
• Citation: 167 S.W.3d 86
• Parties: Darrell McCLENTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

Page 86

167 S.W.3d 86

Darrell McCLENTON, Appellant, v. The STATE of Texas, Appellee.

No. 10-03-00099-CR.

Court of Appeals of Texas, Waco.

April 20, 2005.

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James Kent Schuster, Hearne, for appellant.

John C. Paschall, Robertson County Dist. Atty., Franklin, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Darrell McClenton was charged by indictment with the first-degree felony offense of aggravated robbery with the exhibition of a deadly weapon (handgun). A jury found McClenton guilty and assessed his punishment at 24 years' imprisonment and a $10,000 fine. McClenton appeals, raising five issues.

We will overrule all five issues and affirm the trial court's judgment.

Provision of Recorded Oral Statements

In his first issue, McClenton complains that the State did not "provide" his attorney with a copy of his recorded oral statements at least 20 days before trial, as required by article 38.22 of the Texas Code of Criminal Procedure, and that the trial court thus erred in admitting one of the statements (in which McClenton admitted committing the offense) into evidence.

Recorded oral statements of an accused, made as a result of custodial interrogation, are not admissible unless: "not later than the 20th day before the date of the proceeding, the attorney representing the defendant is provided with a true, complete, and accurate copy of all recordings of the defendant made under this article." Tex.Code Crim. Proc. Ann. art. 38.22, § 3(a)(1), (a)(5) (Vernon Supp.2004-05). The State is not required to "give" defense counsel a copy of any recorded statements; rather, it is required to "provide access" to the statements. Lane v. State, 933 S.W.2d 504, 515-17 (Tex.Crim.App.1996). "So long as defense counsel is informed of the existence of the recording and is permitted reasonable access to a copy, the purpose of § 3(a)(5) has been met." Id. at 516.

In this case, the pretrial and trial occurred on February 18, 2003, and at the pretrial, the trial court heard McClenton's motion to suppress his two recorded oral statements (audiotapes) on the ground that the State allegedly had not provided his attorney with copies of the two statements until February 10, 2003, which was within 20 days of trial. McClenton's attorney, who had been appointed on August 27, 2002, told the trial court that he had never been told that copies of the tapes were available for him; that for "two or three months" he had the investigating officer's report that refers to the recorded statements; that about two weeks before he had "re-read" the report and realized that there were two tapes; on February 10 he visited the district attorney's office and obtained copies of the tapes; and that prior to then the tapes had not been "provided" to him.

The district attorney informed the trial court that copies of the tapes (of McClenton and two others charged with the robbery) were made on January 6, 2003; that the copies had been in the district attorney's file and available for defense counsel since then; that his office had an "open-file policy"; that the file had been open since the case was filed; that he furnished defense counsel with the written offense report; and that as far as he knew, McClenton's attorney had knowledge of the tapes and their availability.

Several courts have addressed similar scenarios.¹ For example, in Tinker v. State, the defendant argued that his recorded statements were improperly admitted because the State failed to provide defense counsel with copies at least 20 days before trial. Tinker v. State, 148 S.W.3d 666 (Tex.App.-Houston [14th Dist.] 2004, no pet. h.). The defense attorney admitted that he was aware of his client's taped statements and that he had free access to his client's file at the district attorney's office, but the tapes were not in the file. The prosecutor noted that the tapes are not kept in individual files but are kept in a separate filing cabinet and that defense counsel could have obtained them from that cabinet. Following Lane, the court of appeals found: "Nothing in the record indicates defense counsel specifically requested or was denied access to the tape recorded statements at any time prior to trial. Where, as here, defense counsel is aware of the existence of taped statements, the State is only required to `permit reasonable access' to a copy." Id. at 673.

Likewise, we read McClenton's trial attorney's statements to the trial court to be that he was aware of the recorded statements two to three months before trial and that he knew he had access to them. We thus follow Lane and hold that the State "provided" the tapes because McClenton's trial attorney was aware of the recorded statements and had access to them. Lane, 933 S.W.2d at 516. We overrule the first issue.

Victim-Impact Testimony

McClenton's second issue complains that the trial court erred in admitting "victim-impact" testimony during the guilt-innocence phase of the trial. Specifically, he complains of the following State-elicited testimony of Diane Kempenski, the clerk of the convenience store (the A-1 Drive In) allegedly robbed by McClenton and three others:

Q. Now, were you placed in fear of imminent bodily injury or death by these defendants who robbed the A-1 Drive In?

A. Yes, sir.

Q. Tell the jury how you felt while this robbery was going.

A. I though they were going to kill me. I kept telling them, you know, "Please don't kill me, just take whatever you want." When you've got a gun to your face, it's hard.

Q. Are you still working there at the A-1?

A. Yes, I am.

Q. How do you feel now working there after August 18? Is it any different from the way you felt before August 18?

A. Yes, sir, it is.

[DEFENSE ATTORNEY] Judge, I'm going to object to relevance.

THE COURT: Overruled.

Q. Describe that feeling that you have now that you did not have prior to your encounter with those four individuals who robbed you?

[DEFENSE ATTORNEY] Judge, I am going to again object to relevance and would ask for a running objection.

THE COURT: Running objection is noted, same is overruled.

A. Do I answer it?

Q. Yes.

A. Well, now I am more cautious who comes in. I watch more. I stay more around the register. I don't go to my cooler hardly at all once night comes. I wait until — I lock the doors before I do anything, because I'm really afraid. It's a bad feeling when you see somebody walk up while I'm doing something or turn around and somebody is there. It just startles me, you know. I think it's somebody else trying to come in and do the same thing. It's just not the same.

Relying on Stavinoha v. State, McClenton urges that this testimony was irrelevant and inadmissible and that the trial court abused its discretion in overruling his objections and admitting the testimony.² See Stavinoha v. State, 808 S.W.2d 76, 78 (Tex.Crim.App.1991) (citing Miller-El v. State, 782 S.W.2d 892, 895 (Tex.Crim.App.1990)). The crime's after-effects on the victim is not relevant at the guilt-innocence phase. Garrett v. State, 815 S.W.2d 333, 337-38 (Tex.App.-Houston [1st Dist.] 1991, pet. ref'd) (citing Miller-El).

We agree with McClenton (and with the State's concession)³ that Kempenski's testimony about how she felt after the robbery was irrelevant and that the trial court abused its discretion in overruling McClenton's relevance objections and admitting this testimony.

Having found error, we must conduct a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure, which provides that a nonconstitutional error "that does not affect substantial rights must be disregarded." Tex.R.APP. P. 44.2(b); see Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App.2002). While we consider the harm, if any, caused by the admission of the testimony, we will disregard any error that does not affect a substantial right of the defendant. Id.; Haynes v. State, 85 S.W.3d 855, 859 n. 4 (Tex.App.-Waco 2002, pet. ref'd). "A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). We do not reverse if, "after examining the record as [a] whole, [we have] fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998); see also Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001). The reviewing court should consider everything in the record, including all the evidence admitted, the arguments, and voir dire. Motilla, 78 S.W.3d at 355-57. The strength of the evidence of guilt, especially if it is overwhelming, is a factor to be considered. Id. at 356-58; Haynes, 85 S.W.3d at 859 n. 4. However, if we have "grave doubt" about whether the error did not affect the outcome, then the error is treated as if it did affect the outcome. Thomas v. State, 137 S.W.3d 792, 796 (Tex.App.-Waco 2004, no pet.) (citing Fowler v. State, 958 S.W.2d 853, 865 (Tex.App.-Waco 1997), aff'd, 991 S.W.2d 258 (Tex.Crim.App.1999)).

After examining the evidence as a whole, we conclude that the admission of the testimony had no effect on the jury. Johnson, 967 S.W.2d at 417; Castillo, 910 S.W.2d at 127-28; Garcia, 827 S.W.2d at 30. The record includes McClenton's recorded statement in which he admitted to committing the robbery and holding the gun. This, along with the other testimony linking McClenton to the crime, is more than enough evidence of guilt to render the erroneous admission of the testimony harmless. See Motilla, 78 S.W.3d at 357-58. While the State did mention during closing argument the fear that a person would have while being robbed at gunpoint by four masked people, it was not a reference to the victim's irrelevant after-effects testimony, but was in...