NO. 07-10-00032-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

JULY 19, 2011 

ARSENIO PETTY, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 16TH DISTRICT COURT OF DENTON COUNTY; 

NO. F-2009-0413-A; HONORABLE CARMEN RIVERA-WORLEY, JUDGE 

Before CAMPBELL, and HANCOCK and PIRTLE, JJ. 

OPINION 

Appellant, Arsenio Petty, appeals from a conviction for capital murder.1

 The 

State did not did not seek the death penalty, therefore, appellant was automatically 

sentenced to incarceration for life in the Institutional Division of the Texas Department of 

Criminal Justice without the possibility of parole.2

 Appellant appeals contending that the 

trial court committed reversible error in admitting his videotaped confession, and in 

 1

 See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). 

2

 See TEX. PENAL CODE ANN. § 12.31(a) (West 2011). 
2 

admitting State’s exhibit 58, a picture drawn by one of appellant’s victims. Further, 

appellant contends that the automatic life sentence mandated by statute is 

unconstitutional under both the United States Constitution and the Texas Constitution. 

We affirm. 

Factual and Procedural Background 

 Appellant does not object to the sufficiency of the evidence to sustain the jury’s 

verdict. Therefore, only that portion of the factual and procedural background that is 

relevant to appellant’s contentions on appeal will be discussed. 

 On December 30, 2008, appellant and at least two other men entered a 

convenience store, The Gas Pipe, in Carrollton, Texas. A surveillance camera reflects 

that, as the first two men enter the store, appellant reaches and takes a handgun from 

Maurice Hall and begins shooting at the employees and patrons in the store. In the 

ensuing melee, appellant shot and struck Rebecca Kemp in the upper left chest. Kemp 

died as a result of this wound. All of the assailants, including appellant, fled the store 

after the shooting. No money was obtained in the robbery. 

 Having no clear leads or suspects in the shooting, the police released the 

surveillance videotape to local media outlets. As a result of the video being played on 

local television stations, information was furnished to the police identifying appellant as 

the individual doing the shooting in the video. Upon further investigation, the police 

interviewed appellant’s sister, Shadara Perry, who told the police that appellant had told 

her he thought he had shot somebody during the robbery shown on television. 
3 

 Appellant was subsequently arrested and, after his arrest, he gave a videotaped 

statement to the police confessing to his actions in the shooting. Appellant filed a pretrial motion to suppress the confession. After viewing that portion of the statement that 

was at issue, the trial court overruled the motion to suppress. During the trial, the 

videotape in question was introduced into evidence as State’s exhibit 54 and played for 

the jury. 

 During the trial of appellant, a number of witnesses were called to testify that 

appellant had either told them of his participation in the robbery/murder, or about 

observing appellant’s reaction when the television news had played the surveillance 

video of the event. The State also introduced State’s exhibit 58 during the testimony of 

Holly Arceneaux. Arceneaux was in The Gas Pipe convenience store at the time of the 

shootings. As part of her personal therapy, she had drawn a picture of the incident. 

The State offered Arceneaux’s drawing. Appellant objected to the introduction of the 

picture on the basis of relevance, prejudice, and best evidence. The trial court 

overruled the objections and allowed the picture to be introduced before the jury. Upon 

submission of the case to the jury, the jury found appellant guilty of the offense of 

capital murder. Because the State had waived the death penalty, appellant was 

automatically sentenced to confinement for life without the possibility of parole. 

 Appellant filed a motion for new trial, which was denied by the trial court. 

Subsequently, appellant requested the trial court file findings of fact and conclusions of 

law regarding the admission of the videotaped confession. Because these findings and 

conclusions were not included in the original Clerk’s Record filed with this Court, we 

abated this matter back to the trial court to file the requested findings and conclusions. 
4 

These findings and conclusions were subsequently filed and are part of the record in 

this appeal. 

Appellant has appealed contending that the trial court’s admission of his 

videotaped confession and the Areceneaux picture was reversible error. Further, 

appellant contends that the statutory punishment scheme for a capital murder conviction 

where the death penalty is not being sought is unconstitutional. We disagree with 

appellant’s contentions and will affirm. 

Motion to Suppress 

 Appellant’s first two issues contend that the trial court abused its discretion by 

admitting the videotaped confession over appellant’s objection. Issue one is based 

upon appellant’s objection that the confession was obtained in violation of article 38.21 

of the Texas Code of Criminal Procedure and, therefore, was not admissible pursuant to 

article 38.23 of the Texas Code of Criminal Procedure.3

 See TEX. CODE CRIM. PROC.

ANN. art. 38.21; art. 38.23 (West 2005). Issue two contends that the same videotaped 

confession was inadmissible because it was obtained in violation of the United States 

Constitution. 

 Initially, we must address the State’s contention that appellant’s motion to 

suppress the videotaped confession did not properly apprise the trial court that 

appellant was objecting on the basis of the United States Constitution. While the oral 

motion to suppress was not the model of clarity, we feel certain that, when appellant’s 

trial counsel urged that the videotaped confession was inadmissible because the same 

 3

 Further reference to the Texas Code of Criminal Procedure will be by reference 

to “article ___” or “art. ___.” 
5 

was coerced by the promise made to appellant, the trial court understood appellant to 

be urging exclusion of the evidence on the basis of the United States Constitution. See

Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S.Ct 1246, 113 L.Ed.2d 302 (1991). 

Accordingly, we do not agree with the State that appellant has waived his United States 

Constitutional claim. Further, upon review of the trial court’s findings of fact and 

conclusions of law, it is clear that the trial court understood appellant’s motion to include 

a United States Constitutional claim. 

Standard of Review

 To review the denial of a motion to suppress, we apply a bifurcated standard of 

review. See Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). We review 

the trial court’s application of the law to the facts de novo. Id. However, we defer to the 

trial court’s determination of credibility and historical fact. Id. Because the trial court is 

in the position to see the witnesses testify and to evaluate their credibility, we must view 

the evidence in the light most favorable to the trial court’s ruling. See Wiede v. State, 

214 S.W.3d 17, 24 (Tex.Crim.App. 2007). Where a trial court has made findings of fact, 

as is the case here, we review the record to determine whether the evidence, viewed in 

the light most favorable to the trial court’s ruling, supports the fact findings entered. See

State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006). 

Analysis

 Article 38.21

Turning first to the state statutory argument put forth by appellant, article 38.21 

provides that “an accused’s statement may be used against him at trial, if it appears that 
6 

the same was freely and voluntarily made without compulsion or persuasion, under the 

rules hereinafter prescribed.” Appellant is not contending that the rules prescribed by 

the statutory scheme were not complied with. It is appellant’s position that the detective 

who took appellant’s videotaped confession, Mark Ahearn, made promises to appellant 

that resulted in the confession and, therefore, made the confession inadmissible. 

Specifically, appellant contends that Detective Ahearn induced appellant’s confession 

by promising him that he would be permitted to see his family if he confessed. 

 The State contends that the promise that appellant could see his family was 

couched in terms of seeing them when they finished the interview process before he 

was taken to jail and was not conditional on appellant confessing. Further, whatever the 

nature of the promise made, the State contends that it was not of such a nature that it 

would cause appellant to speak untruthfully. 

 In order for a promise to invalidate a confession under article 38.21, the promise 

must be: 1) positive, 2) made or sanctioned by someone in authority, and 3) of such an 

influential nature that it would cause a defendant to speak untruthfully. Martinez v. 

State, 127 S.W.3d 792, 794 (Tex.Crim.App. 2004).4 Appellant and the State agree that 

there was a positive promise, that appellant could visit his family, made by a person in 

authority, Detective Ahearn. However, it is the third element that is hotly contested, 

whether the promise at issue was of such an influential nature that it would cause a 

defendant to speak untruthfully. 

 4

 See also Perales v. State, No. 2-07-268-CR., 2008 Tex. App. LEXIS 7675, at 

*11-*12 (Tex.App.—Fort Worth 2008, pet. ref’d, untimely filed) (not designated for 

publication); Wells v. State, No. 2-05-352-CR, 2007 Tex. App. LEXIS 2544, at *10 

(Tex.App.—Fort Worth 2007, no pet.) (not designated for publication). 
7 

 The trial court made specific findings of fact that address the issue of discussions 

regarding appellant’s family and promises made to appellant about seeing his family. 

The applicable findings are: 

4. Prior to and after the defendant’s admission of capital murder, Detective 

Ahearn told the defendant that after they had finished talking and when 

they got through the entire story once, Detective Ahearn would let the 

defendant talk to his family and say goodbye, and that defendant’s family 

could visit with the defendant before he was taken to the jailhouse. 

5. The defendant was not told that he could not talk or visit with his family 

if he refused to give a confession. 

6. The defendant never requested nor was he denied the right to contact 

any family members. 

Our review of the record reveals that the findings of the trial court regarding any promise 

made to appellant by Detective Ahearn are supported in the testimony and on the 

videotape of the confession. See Kelly, 204 S.W.3d at 818. 

 Additionally, we note that, even if we were to agree with appellant that Detective 

Ahearn did refuse to allow him to see his family until he confessed, the videotaped 

confession would still have been admissible. This is because the type of promise made 

was not of the nature or type that conferred such a benefit upon appellant as would 

cause him to speak untruthfully. See Martinez, 127S.W.3d at 795 (“Under State law the 

determination is whether the officially sanctioned positive promise would be likely to 

influence the defendant to speak untruthfully and not whether the defendant in fact 

spoke untruthfully.”). Such was the finding of fact entered by the trial court. See Kelly, 

204 S.W.3d at 818. Again, the record supports this finding. We are of the opinion that, 

even if Detective Ahearn had promised appellant that he could see his family if he 
8 

confessed, such a promise would not confer any benefit on appellant that would cause 

him to speak untruthfully. Accordingly, appellant’s issue one is overruled. 

 United States Constitution

 Appellant’s second issue contends that the confession should have been 

suppressed because it was obtained in violation of the safeguards contained in the 

United States Constitution. When focusing on an alleged due process violation which 

resulted in the statement being obtained involuntarily, the standard is whether all of the 

attendant circumstances reflect that appellant’s will was overborne. See Dickerson v. 

United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000); see also

Delao v. State, 235 S.W.3d 235, 239 (Tex.Crim.App. 2007), cert. denied, 552 U.S. 

1168, 128 S.Ct. 1128, 169 L.Ed.2d 953, (2008). 

 In addition to the promises that appellant contends that Detective Ahearn made, 

appellant points to his age, 20 years old, and alleged psychological problems he was 

having as a result of his having been previously shot, as part of the totality of the 

circumstance requiring the trial court to have found appellant’s confession involuntarily 

given. Giving full play to the totality of the circumstances, the record does not support 

appellant’s position. That appellant was upset and under stress is borne out in the 

video of the confession interview. However, a review of the record shows that the only 

matter mentioned to the trial court, other than the promise allegedly made by Detective 

Ahearn, was appellant’s age, and this was only argued in a very limited and cursory 

manner. Nowhere in the objection during the hearing on the motion to suppress or at 

the time State’s exhibit 54, the videotaped confession, was offered does the record 
9 

reflect that appellant contended that any psychological issues might have weighed on 

his decision to confess. To the extent appellant now attempts to argue that subject 

matter, he is constrained from doing so as his objection at trial does not comport to that 

argument in his brief. See TEX. R. APP. P. 33.1(a)(1)(A). Regarding appellant’s age, at 

trial appellant’s attorney only mentions it in passing while arguing the motion to 

suppress. We will, however, address this issue as having been brought to the trial 

court’s attention. See id. 

 Appellant’s age at the time of the statement was, according to his brief, 20 years. 

The trial court’s findings of fact recite that the statement was “made knowingly, 

intelligently, freely, and voluntarily without any threats, compulsion, persuasion, duress, 

coercion, or other improper influence.” In our review of the record to ascertain the 

totality of the circumstances, we find nothing indicating that appellant did not understand 

the nature of the questions asked him or the implication of his answers. Rather, what 

we see is a younger man who understands that he is in a substantial amount of trouble 

and appears to decide to confess once he realizes that his family and friends have 

already talked to the police about his involvement in the crime. There is no 

demonstrative overreaching by the police, nor is there any apparent coercion. See

Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) 

(coercive police activity is a necessary predicate to the finding that a confession was not 

voluntary within the meaning of the Due Process Clause). Additionally, in addressing 

appellant’s first issue, we found that the trial court’s finding of fact that there were no 

promises made to appellant by Detective Ahearn was supported in the record. In 

regard to the second issue, the trial court’s finding of fact regarding a lack of coercion or 
10 

overreaching is likewise supported in the record. Therefore, we overrule appellant’s 

second issue. See Kelly, 204 S.W.3d at 818. 

Admission of State’s Exhibit 58 

 Appellant’s third issue contends that, when the trial court allowed State’s exhibit 

58 to be admitted before the jury, the trial court abused its discretion. State’s exhibit 58 

was a picture drawn by Holly Arceneaux shortly after the incident in question. 

Arceneaux had been one of the customers inside The Gas Pipe at the time of the 

shooting. According to the record, Arceneaux drew the picture in question while 

undergoing therapy as a result of witnessing the events of that day. According to 

Arecneaux’s testimony, the picture represents both the shooting and the immediate 

aftermath of the shooting with the victim and others depicted. Appellant objected that 

the picture was irrelevant, prejudicial, and that better evidence existed in the form of the 

surveillance camera photographs. The trial court overruled the objection and the exhibit 

was admitted before the jury. 

Standard of Review

 When dealing with issues regarding the admission of evidence, the standard of 

review is abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 

2000). A trial court abuses its discretion only when the reviewing court can say with 

confidence that no reasonable perception of the matter under consideration could have 

yielded the decision made by the trial court. See Montgomery v. State, 810 S.W.2d 

372, 391 (Tex.Crim.App. 1990) (op. on reh'g). If the trial court's decision is correct on 
11 

any theory of law applicable to the case, the decision will be sustained. See State v. 

Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000). 

Analysis

 Evidence is relevant if it tends to make the existence of a fact of consequence 

more or less probable than it would be without the evidence. See TEX. R. EVID. 401.5

 

Relevant evidence is generally admissible unless otherwise provided. See Rule 402. 

 The evidence at issue allegedly portrayed the scene of the shooting as it 

occurred and immediately after it occurred. However, from our review of the exhibit, it is 

difficult to see how the picture in question contributed anything of consequence toward 

proof of any of the elements of the offense. At best, the picture was simply cumulative 

of the testimony of the witness. If we assume the evidence had such limited relevancy 

that it should not have been admitted, we must make further inquiry about the harm to 

appellant from the admission of the exhibit. 

An erroneous admission of evidence is judged for harm under the nonconstitutional harm analysis of Texas Rule of Appellate Procedure 44.2(b). See Russell 

v. State, 155 S.W.3d 176, 181 (Tex.Crim.App. 2005). In conducting such an analysis, 

we may disregard the error if, after examining the entire record, we have a fair 

assurance that the error did not influence the jury, or had but a slight effect. See

Guevara v. State, 152 S.W.3d 45, 53 (Tex.Crim.App. 2004). 

 5

 Further reference to the Texas Rules of Evidence will be by reference to “Rule 

___.” 
12 

 A review of the record reveals that the events depicted in State’s exhibit 58 were 

testified to by several other witnesses, including Arceneaux. Specifically, appellant was 

identified by another participant in the shooting. The victim’s condition after the 

shooting was described by several witnesses. The surveillance videos displayed the 

actions of appellant and the other participants. The appellant confessed to being the 

shooter. Nothing in the record indicates that the State unduly emphasized State’s 

exhibit 58. 

 Thus, from our review of the entire record, we are assured that the admission of 

State’s exhibit 58 did not influence the jury, or, at most, had a very insubstantial 

influence in their returning a verdict against appellant. Id. Therefore, we find that the 

admission of said exhibit did not affect appellant’s substantial rights. Id. Accordingly, 

the error in admission of the exhibit was harmless and will be disregarded. See Rule 

44.2(b). Appellant’s third issue is overruled. 

Mandatory Life Sentence 

Appellant’s fourth and fifth issues contend that the conviction is invalid because 

the imposition of a mandatory life sentence without parole violates the Eighth 

Amendment of the United States Constitution (issue four) and Article 1, Sections 13 and 

15, of the Texas Constitution (issue five) because such an “automatic” sentence denied 

appellant his right to an individualized sentence. 

First, the record does not include any objection during the trial to the application 

of the statute governing punishment for capital murder when the State waives the death 

penalty. See TEX. PENAL CODE ANN. § 12.31(a). Thus, it appears that appellant’s claim, 
13 

which we read to be attacking the sentencing scheme as being applied to appellant 

under a disproportionate sentence analogy, is an “as applied” attack against the statute 

as opposed to a “facial” challenge against the statute.6

 Appellant has failed to preserve 

this objection for our review. Rule 33.1(a)(1)(A). The inaction of appellant at trial leaves 

the Court with nothing to review.7

 Accordingly, appellant’s fourth and fifth issues are 

overruled. 

Conclusion 

Having overruled appellant’s issues, the judgment of the trial court is affirmed. 

 Mackey K. Hancock 

 Justice 

Publish. 

 6

 Even if we viewed the issues as being a facial attack against the statute, 

appellant’s failure to object at trial would have forfeited his issues. See Karenev v. 

State, 281 S.W.3d 428, 434 (Tex.Crim.App. 2009). 

7

 Even were we to accept that appellant had no requirement to object at trial, the 

decided case law is against appellant and we would not sustain his fourth and fifth 

issues. See Sierra v. State, 157 S.W.3d 52, 64-65 (Tex.App.—Fort Worth 2004), aff’d, 

218 S.W.3d 85 (Tex.Crim.App. 2007).