Schultze v. State

• Decision Date: 05 October 2005
• Docket Number: No. 01-02-00210-CR.,01-02-00210-CR.
• Citation: 177 S.W.3d 26
• Parties: Eric Vaughn SCHULTZE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

177 S.W.3d 26

Eric Vaughn SCHULTZE, Appellant, v. The STATE of Texas, Appellee.

No. 01-02-00210-CR.

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

January 13, 2005.

Discretionary Review Refused October 5, 2005.

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Murry B. Cohen, Akin Gump Strauss Hauer & Feld LLP, Houston, TX, for Appellant.

Douglas Howell, III, Assistant District Attorney, Bill R. Turner, District Attorney, Bryan, TX, for Appellee.

Panel consists of Justices TAFT, JENNINGS, and HANKS.

OPINION ON MOTION FOR REHEARING

GEORGE C. HANKS, JR., Justice.

We withdraw our Opinion of May 13, 2004 and issue the following Opinion in its stead. We deny appellant's motion for rehearing.

Appellant, Eric Vaughn Schultze, and his co-defendants,¹ Valin Thomas Klock and Scott Alan Zunker, were indicted for the first-degree felony offense of aggravated sexual assault.² After appellant refused to enter a plea, the trial court entered a plea of not guilty on his behalf.³ A jury found appellant and his co-defendants guilty and assessed punishment of 30 years in prison for appellant, 22 years for Klock, and 15 years for Zunker.

In seven points of error, appellant contends that his trial counsel was ineffective and that the trial court erred in (1) denying his request for a severance; (2) admitting a videotape of the death of appellant's roommate, John Hickman, at the punishment stage of trial; (3) excluding testimony about prison conditions; (4) allowing the State to argue about the crime's effect on the victim's parents; (5) refusing to instruct the jury, at the punishment stage, about the elements of the extraneous offenses; and (6) refusing to suppress a videotape of the sexual assault at the guilt stage of trial. We affirm.

Background

On November 19, 2000, College Station Police Department Detective Chad Harkrider was called to investigate the alcohol-related death of John Hickman at 3311 Bahia in College Station. When he arrived at the scene and discovered there were numerous people to interview, he contacted College Station Police Sergeant Chuck Fleeger for assistance. Appellant and Klock were two of the people interviewed in connection with Hickman's death. During the course of the investigation, Detective Harkrider received an anonymous tip that there was a videotape of Hickman made on the night he died.

On March 27, 2001, Jana French, a friend of Klock's, provided the College Station Police Department with a videotape she had obtained from Klock. Fleeger watched the videotape and discovered that, in addition to depicting Hickman the night that he died, 18 minutes and 45 seconds of the tape showed three men sexually assaulting an unconscious female. Fleeger recognized appellant and Klock as two of the three assailants because he had recently interviewed them in connection with Hickman's death. He later determined the identities of the complainant⁴ and the third assailant, Zunker.

The sexual assault⁵ began with Zunker and appellant entering a room where Klock was having sexual intercourse with the complainant, who appeared to be unconscious and physically unable to resist. Appellant, while manning the video camera said, "in her fucking cunt," and Zunker attempted to insert a baseball in the complainant's vagina. Zunker manned the video camera while appellant inserted the handle of a toilet plunger into the complainant's vagina. Appellant told Zunker, "Make sure you get this on tape." When the plunger handle was inserted into the complainant's vagina, she moaned and said, "Ow. Stop," and continued to struggle. The three men laughed throughout the entire sexual assault. At one point, Zunker lit a cigarette and burned the complainant's vagina with the lit cigarette. Zunker then, mockingly, said, "Ow. That's got to hurt," and he proceeded to flick ashes onto the complainant's buttocks. Zunker and Klock also inserted a screwdriver and other objects into the complainant's vagina. The men continued to laugh as they performed these various acts on the unconscious complainant, with appellant declaring, "this is fucking hilarious" at one point during the assaults.

Police officers arrested appellant, Klock, and Zunker the day after Sergeant Fleeger received the videotape. Also on that day, police officers searched the house at 3311 Bahia and found a video camera and a camera bag that contained another videotape. This second videotape showed appellant urinating on an unconscious Hickman.

During his investigation, Fleeger determined that the sexual assault occurred in July 2000, seven or eight months before the videotape was discovered.

Motion to Suppress Evidence

In point of error seven, appellant contends that the trial court erred by denying his motion to suppress the sexual assault videotape "on the ground that Article 38.23 does not make stolen property inadmissible if a thief gives the property to the police." See TEX.CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp. 2004-2005).

Standard of Review

A trial court's ruling on a motion to suppress evidence will not be set aside unless there is an abuse of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We will afford almost total deference to a trial court's determination of facts supported by the record, especially when the findings are based on the evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997); Spight v. State, 76 S.W.3d 761, 765 (Tex.App.-Houston [1st Dist.] 2002, no pet.). The appellate courts may review de novo "mixed questions of law and fact" not falling within this category. Guzman, 955 S.W.2d at 89.

Standing

Appellant filed a pretrial motion to suppress the videotape because "the videotape was taken from a home in which [appellant] had a privacy interest in violation of Article 38.23 V.A.C.C.P." Article 38.23 provides as follows:

No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

TEX.CODE CRIM. PROC. ANN. art. 38.23(a). Appellant contends that Klock broke into the Bahia house and stole the videotape from appellant.

In its order denying the motion to suppress the videotape, the trial court found that "there [was] sufficient evidence to show that [Klock] had permission to be on the Bahia premises until well after Spring Break." The trial court also found that, "there is no evidence in the record that Defendant Klock, even if he took the video without Defendant Schultze's consent, intended to deprive Schultze of ownership." The trial court did not state whether appellant had standing to complain of Klock's taking the videotape. However, failure to prove standing may be raised at any time, including for the first time on appeal. State v. Klima, 934 S.W.2d 109, 110-11 (Tex.Crim.App. 1996); Pennywell v. State, 84 S.W.3d 841, 843-44 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

Standing is a question of law, which we review de novo. State v. Johnson, 896 S.W.2d 277, 285 (Tex.App.-Houston [1st Dist.] 1995), aff'd, 939 S.W.2d 586 (Tex.Crim.App. 1996). To have standing, or a reasonable expectation of privacy, a defendant must show: (1) that he had an actual, subjective expectation of privacy, exhibited by measures taken to protect the privacy of the property in question, and (2) that his subjective expectation of privacy is one that society is prepared to recognize as reasonable. See Jackson v. State, 745 S.W.2d 4, 7 (Tex.Crim.App. 1988).

During the suppression hearing, appellant called Travis Blount to testify. Blount testified that he was appellant's cousin and lived with appellant at 3311 Bahia Street at the time of the assault. Blount testified that the video camera used to film the assault belonged to Taylor Jordan — it was not appellant's camera. Travis testified that when Jordan left the camera at the house, he left it in the case, and it was possible that there were some tapes left in the case. Travis never saw what brand of videotapes appellant bought; therefore, he could not comment on whether the videotape used to tape the assault was one of the tapes appellant bought or one that may have already been in Jordan's video case.

Sergeant Fleeger testified during the suppression hearing that, after the police saw the videotape, they obtained a search warrant for the house on Bahia. When they executed the warrant, they found the video camera and case in the living room. They found an .8 mm videotape in the case. Through his investigation, Fleeger concluded that the video camera and bag did not belong to appellant. Appellant did not testify at the suppression hearing.

The evidence elicited during the suppression hearing did not reveal who owned the videotape that contained the recording of the assault, where the videotape was usually kept, or from where the videotape was removed. There is no evidence in the record indicating what steps appellant took to protect the videotape. Nor is there any evidence that access to the videotapes was limited in any way. In fact, Blount testified that the occupants of the Bahia house frequently watched tapes they made with their friends. He testified that, after Klock moved out, Blount came home to find Klock, alone in the house, watching a videotape of Hickman's death.

Appellant failed to present sufficient evidence during his suppression hearing to establish that he took any measures to...