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 CA RMEN 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 Inst itutional Division of t he 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 T EX

. P ENAL C ODE A NN . § 19.03(a)(2) (West 2011).

2 See T EX

. P ENAL C ODE A NN . § 12.31(a) (West 2011).2 admitting State’s exhibit 58, a picture drawn by one of appellant’s victims. Further, appellant contends that t he automatic life sentence mandated by statute is unconstitutional under both the Un ited States Constitution and the Texas Constitution. We affirm. Factual and Procedural Background Appellant does not object to the sufficien cy of the evidence to sustain the jury’s verdict. Therefore, only that portion of th e factual and procedural background that is relevant to appellant’s content ions 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 shooti ng at the employees and patrons in the store. In the ensuing melee, appellant shot and struck Rebe cca Kemp in the upper left chest. Kemp died as a result of this wound. All of the assailants, incl uding 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 furn ished to the police ident ifying 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 t hat 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 shooti ng. Appellant filed a pretrial motion to suppress the confession. Afte r 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 evidenc e as State’s exhibit 54 and played for the jury. During the trial of appel lant, a number of witnesses we re called to testify that appellant had either told them of his parti cipation 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 introduc ed State’s exhibit 58 dur ing the testimony of Holly Arceneaux. Arc eneaux was in The Gas Pipe convenienc e store at the time of the shootings. As part of her per sonal therapy, she had drawn a picture of the incident. The State offered Arceneaux’s dr awing. Appellant objected to the introduction of the picture on the basis of relevance, prej udice, and best evidence. The trial court overruled the objections and allowed the pi cture to be introduced before the jury. Upon submission of the case to the jury, the ju ry found appellant guilt y of the offense of capital murder. Because the State had waived the death penalty, appellant was automatically sentenced to confinement fo r life without the possi bility of parole. Appellant filed a motion for new trial, which was denied by the trial court. Subsequently, appellant r equested the trial court file findin gs of fact and conclusions of law regarding the admission of the videotaped confession. Be cause 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 subsequent ly filed and are part of the record in this appeal. Appellant has appealed cont ending that the trial c ourt’s admission of his videotaped confession and the Areceneaux pict ure was reversible error. Further, appellant contends that the stat utory punishment scheme for a capital murder conviction where the death penalty is not being sought is unconstitutional. We disagree with appellant’s contenti ons and will affirm. Motion to Suppress Appellant’s first two issues contend that the trial court abused its discretion by admitting the videotaped confe ssion over appellant’s objecti on. Issue one is based upon appellant’s objection that t he 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 T EX

. C ODE C RIM

. P ROC

. A NN . art. 38.21; art. 38.23 (West 2005). Iss ue two contends that the same videotaped confession was inadmissible be cause it was obtained in viol ation of the United States Constitution. Initially, we must addre ss the State’s contention th at appellant’s motion to suppress the videotaped confe ssion did not properly appris e the trial court that appellant was objecting on the basis of the Unit ed States Constitution. While the oral motion to suppress was not the model of clarit y, we feel certain that, when appellant’s trial counsel urged that t he videotaped confession was inadm issible 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 appella nt, the trial court understood appellant to be urging exclusion of the ev idence on the basis of the Unit ed 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. Furt her, upon review of the trial co urt’s findings of fact and conclusions of law, it is cl ear 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 s uppress, 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 credi bility 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 tr ial court’s ruling. See Wiede v. State , 214 S.W.3d 17, 24 (Tex.Crim.App. 2007). Where a trial court ha s made findings of fact, as is the case here, we review the record to determine whether t he evidence, viewed in the light most favorable to the trial court’s ru ling, 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 st atement may be used against him at trial, if it appears that6 the same was freely and volunt arily made without co mpulsion or persuasion, under the rules hereinafter prescribed.” Appellant is not c ontending that the rules prescribed by the statutory scheme were not complied with. It is appellant’s position that the detective who took appellant’s videotape d confession, Mark Ahearn, made promises to appellant that resulted in the confession and, theref ore, made the confession inadmissible. Specifically, appellant contends that Detective Ahearn in duced appellant’s confession by promising him that he w ould 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 t hey finished the interview process before he was taken to jail and was not conditional on appel lant confessing. Fu rther, 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 articl e 38.21, the promise must be: 1) positive, 2) m ade 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 t he State agree that there was a positive pr omise, that appellant could visit his family, made by a person in authority, Detective Ahear n. However, it is the third el ement 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 addr ess 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 adm ission of capital murder, Detective Ahearn told the defendant that after they had finished talking and when they got through the entire story onc e, Detective Ahearn would let the defendant talk to his family and sa y 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 coul d not talk or visit with his family if he refused to give a confession. 6. The defendant never requested nor wa s he denied the right to contact any family members. Our review of the record reveals that the fi ndings of the trial c ourt regarding any promise made to appellant by Detective Ahearn ar e 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 we re 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 adm issible. This is because the type of promise made was not of the nature or ty pe that conferred such a b enefit upon appellant as would cause him to speak untruthfully. See Martinez , 127S.W.3d at 795 (“U nder State law the determination is whether the officially s anctioned positive promise would be likely to influence the defendant to speak untruthfu lly 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 Ahear n had promised appellant that he could see his family if he8 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 viol ation of the safeguards contained in the United States Constitution. When focusi ng on an alleged due process violation which resulted in the statem ent being obtained involuntarily, t he standard is whether all of the attendant circumstances reflect that appellant’s will wa s 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.Ap p. 2007), cert. denied, 552 U.S. 1168, 128 S.Ct. 1128, 169 L.Ed.2d 953, (2008). In addition to the promises that appell ant 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 hav ing been previously shot, as part of the totality of the circumstance requiring the trial court to hav e found appellant’s conf ession involuntarily given. Giving full play to the totality of t he 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 t han the promise allegedl y made by Detective Ahearn, was appellant’s age, and this was only argued in a very limited and cursory manner. Nowhere in the objec tion during the hearing on the motion to suppress or at the time State’s exhibit 54, the videotaped confession, wa s offered does the record9 reflect that appellant contended that any psychological iss ues might have weighed on his decision to confess. To the extent a ppellant 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 T EX

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. P. 33.1(a)(1)(A). Regar ding 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, accord ing to his brief, 20 years. The trial court’s findings of fact recite that the statement was “made knowingly, intelligently, freely, and volunt arily without any threats, com pulsion, persuasion, duress, coercion, or other improper in fluence.” In our review of the record to ascertain the totality of the circumstances, we find nothing indicating that appella nt did not understand the nature of the questions aske d him or the implication of his answers. Rather, what we see is a younger man who understands that he is in a substantia l amount of trouble and appears to decide to conf ess once he realizes that his family and friends have already talked to the police about his invo lvement in the crim e. 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 predica te 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 r egarding a lack of coercion or10 overreaching is likewise supported in the reco rd. 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, w hen the trial court allowed State’s exhibit 58 to be admitted before the jury , the trial court abused its discr etion. State’s exhibit 58 was a picture drawn by Holly Arceneaux s hortly 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, Arc eneaux drew the pictur e in question while undergoing therapy as a result of witnessing the events of that day. According to Arecneaux’s testimony, the pi cture represents both the shooting and the immediate aftermath of the shooting wit h the victim and others depicted . Appellant objected that the picture was irrelevant, prejudicial, and that better evidence exist ed in the form of the surveillance camera photographs. The trial c ourt 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 discre tion. Weatherred v. State , 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). A trial court abuses its discretion on ly 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 dec ision is correct on11 any theory of law applicable to the ca se, the decision will be sustained. See State v. Ross , 32 S.W.3d 853, 855-56 (T ex.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 woul d be without the evidence. See T EX

. R. E VID . 401. 5 Relevant evidence is generally admissi ble unless otherwise provided. See Rule 402. The evidence at issue allegedly por trayed the scene of t he 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 questi on contributed anything of consequence toward proof of any of the elements of the offense. At best, the pi cture was simply cumulative of the testimony of the witness. If we a ssume the evidence had su ch limited relevancy that it should not have been admitted, we mu st make further inquiry about the harm to appellant from the admissi on of the exhibit.

An erroneous admission of evidenc e is judged for harm under the nonconstitutional harm analysis of Texas Ru le of Appellate Pr ocedure 44.2(b). See Russell v. State , 155 S.W.3d 176, 181 (Tex.C rim.App. 2005). In conducting such an analysis, we may disregard the error i f, 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 St ate’s exhibit 58 were testified to by several other witnesses, including Ar ceneaux. Specific ally, appellant was identified by another participan t 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 ot her participants. The appell ant confessed to being the shooter. Nothing in the record indicate s that the State undu ly emphasized State’s exhibit 58. Thus, from our review of the entire reco rd, 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 cont end that the conviction is invalid because the imposition of a mandatory life sentenc e without parole vi olates 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 objec tion during the trial to the application of the statute governing punis hment for capital murder when the State waives the death penalty. See T EX

. P ENAL C ODE A NN . § 12.31(a). Thus, it appears that appellant’s claim,13 which we read to be attacking the sentenc ing scheme as being applied to appellant under a disproportionate sentence analogy, is an “as applied” attack against the statute as opposed to a “facial” c hallenge against the statute. 6 Appellant has fa iled 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 j udgment 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 wo uld have forfeited his issues. See Karenev v. State , 281 S.W.3d 428, 434 (T ex.Crim.App. 2009).

7 Even were we to accept t hat appellant had no r equirement 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).