Michael Ricardo Camarillo v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00387-CR

Michael Ricardo Camarillo, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-00-186, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

Appellant Michael Ricardo Camarillo appeals his conviction for aggravated assault.

See Tex. Pen. Code Ann. § 22.02 (West 1994). The jury found appellant guilty of aggravated assault

as alleged in the third count of the indictment and assessed his punishment at twenty years'

imprisonment and a fine of $2,500. (1) The jury acquitted appellant of the offenses of aggravated

sexual assault as charged in the first and second counts of the indictment.

Points of Error

Appellant advances two points of error. First, appellant contends that the trial court

erred in admitting into evidence an incriminating oral statement in violation of the statutory law. See

Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979 & Supp. 2002). Second, appellant challenges the

factual sufficiency of the evidence to sustain the conviction and claims that the admitted but tainted

oral statement must not be considered in any factual sufficiency review.

Background

At trial on May 15, 2001, Daniel Walkuski, twenty-four years of age, testified as to

what happened to him on March 4, 2000. Walkuski related that he had been charged with selling

liquor to minors; that shortly after he was placed in Tank C2-7 of the Hays County jail, he was told

by appellant and Michael Martinez to go to the "corner"; that the "corner" was an area of the jail tank

that the guard could not see from his post or position. There, Walkuski was told by Martinez in

appellant's presence, that if he (Walkuski) did not fight another inmate, Thomas Pearl, "they" would

"kick my ass." Walkuski testified that he was afraid. He testified that he was forced to fight Pearl,

but then appellant and Martinez wrapped towels around their hands and began hitting him in the nose

and his chest. Walkuski testified that his nose was broken in two places, that he was badly beaten

and in physical pain. Later, appellant and Martinez told him to place a plastic toothbrush holder up

his anus in front of the other inmates in the tank, and then to lick or place the holder in his mouth.

Walkuski related that he did this because he was afraid of appellant and Martinez who threatened

to beat him again if he did not follow their instructions. He was removed from the jail tank the next

day. At the time of the trial, Walkuski was again in jail on another charge. Walkuski explained that

appellant was in a tank "next door" to where he was being held, and appellant had friends in the area

where he (Walkuski) was in custody. He also stated that he had learning disabilities and was on

medication for "ADD" (Attention Deficit Disorder).

Detective Thomas James Ormsby with the Hays County sheriff's office began an

investigation of the jail house incident three or four days after it happened. He came into possession

of a plastic toothbrush holder and a white towel with blood on it. Ormsby obtained statements taken

by the jail staff, including one by appellant, who acknowledged that an assault took place but denied

any participation in it. Ormsby interviewed and took some statements from the inmates in C2-7 at

the time of the incident. He interviewed Walkuski and secured his statement concerning the assaults.

Thereafter, Ormsby secured arrest warrants for appellant, who had been released from jail.

Ormsby described Walkuski as having dark bruising under both eyes and bruising on

his arms. He took Walkuski to the Central Texas Medical Center to be examined by a "sane" (sexual

assault nurse examiner).

On June 9, 2000, Detective Ormsby was informed that appellant had been arrested.

He went to the jail and found appellant in the booking area. When Ormsby identified himself to

appellant as the officer who had caused the arrest warrants to be issued, appellant spontaneously

stated that he had "beat the s _ _ _ out of the guy," but that he had not sexually assaulted anyone.

Julie Veidt, a "sane" at the medical center, testified that she had examined Walkuski

on March 8, 2000. She found that he "had lots of nasal trauma." He had purple areas under both

of his eyes and across the bridge of his nose. There were abrasions on Walkuski's nose, left

cheekbone and right ankle. There was greenish bruising above his left eyebrow, and yellow and

purple bruising on his arms. There were tender areas on the back of Walkuski's head, the middle

of his back, and upper-front of both thighs. Nurse Veidt found that Walkuski had a fractured nose

which could cause a serious impairment of a person's ability to breathe; that there is a likelihood that

a person with a fractured nose would suffer some sort of protracted loss of function or an impairment

of the use of that body organ. Nurse Veidt also related that her examination of Walkuski's anus

revealed an injury consistent "with the things he told me had happened."

Timothy Daniel was a reluctant witness. He had been bench-warranted from prison

to testify. He made clear to the prosecutor that he did not want to be a witness and that he did not

recall the events which occurred in the jail when he was an inmate there. The statement he gave

authorities in early March 2000 after the incident was admitted under Rule of Evidence 803(5). In

it, Daniel stated that appellant and Martinez forced Pearl and Walkuski to fight, against their will,

then strangled Walkuski, and forced him to use a toothbrush holder on himself; that the next morning

he (Daniel) tipped off a guard when he went to the infirmary for a blood pressure check.

Michael Martinez, the co-defendant, was called as a State's witness. He admitted that

earlier he had entered a plea of guilty to aggravated assault upon Walkuski, acknowledged the

stipulation of evidence used, and agreed that he had received fifteen years in prison as a part of a plea

bargain. On cross-examination, Martinez admitted that he had beaten "the s _ _ _ out of" Walkuski

but denied that appellant had participated in the offense.

Alexis Castro testified for the defense. He was an inmate in C2-7 when the incident

in question occurred. Castro stated that Walkuski acted strangely when he first entered the tank by

going around and shaking hands with approximately twenty-four inmates; that Walkuski later

"farted" in the chow line which was against the jail rules and which upset the other inmates; and that

still later Walkuski began talking about girls committing oral sex on him. At this point, Castro

related that Walkuski put a plastic toothbrush holder in his mouth and began bobbing up and down

on it; that Walkuski thought it was funny and got some jeers and snickers; and that Walkuski even

performed in view of the guard.

Castro testified that Walkuski subsequently went off in the corner; pulled his pants

down and sat on the holder, but that no one forced him to do so. Castro did recall that Pearl and

Walkuski got into a fight and Walkuski had a nose bleed. Castro stated that no one forced them to

fight. He never saw appellant beat Walkuski or participate in any of the action described.

The twenty-one-year-old appellant was in jail for possession of marihuana at the time

of the incident and was to be released in a few days. Appellant denied that he assaulted Walkuski

at any time. He stated that he was asleep at the time Walkuski entered the jail tank, later saw

Walkuski fighting with Pearl, and then saw Martinez beating Walkuski, but he did not take part.

Appellant related that he was told that Walkuski had abused himself with a toothbrush holder, but

he considered that Walkuski's "business." He had not observed the act. After his arrest for the

instant offense, appellant denied that he made the oral statement attributed to him by Detective

Ormsby.

Admission of Oral Statement

In his first point of error, appellant contends that the "trial court erred in admitting

into evidence an appellant's alleged incriminating oral statement in violation of Texas Code of

Criminal Procedure, article 38.22."

On direct examination, Detective Ormsby testified that on June 9, 2000, he went to

the county jail after he was informed that appellant had been arrested. The record then reflects:

I arrived at the jail at 10:00 o'clock in the morning, a little bit after. Michael

Camarillo was in the holding area, the booking area. I told him that I was the

detective that had the warrants issued for his arrest. And he made a statement that

-- well, he made the statement that he beat the s _ _ _ out of the guy, and he had not

sexually assaulted anybody.

I told Michael Camarillo that he did not need to have sexual intercourse to

sexually assault somebody.

MR. LANFORD: Objection, Your Honor, narrative.

May I take the witness on voir dire?

THE COURT: You may.

VOIR DIRE EXAMINATION

BY MR. LANFORD:

Q. Mr. Ormsby, at the time of this June interview with Mr. Camarillo, after

you advised him of -- that you were the detective on the case, did you advise him of

anything else?

A. No, I did not.

MR. LANFORD: I'll move to strike the responses of what Mr. Camarillo

may have said to the officer, Your Honor --

MS. COMPTON: Your Honor --

MR. LANFORD: -- under 38.21 of the Code of Criminal Procedure is not

complied with, Article 30.

MS. COMPTON: Your Honor, this was a res gestae statement. It was made

without any time for Mr. Ormsby to even Mirandize this defendant.

MR. LANFORD: Objection --

MS. COMPTON: He immediately stated that before -- just as soon as he was

told that he was the investigating officer.

MR. LANFORD: I object, Your Honor. That's outside the record.

MS. COMPTON: If -- if I could be allowed to continue, I will establish that.

THE COURT: Proceed.

The prosecutor then elicited from Ormsby that after he identified himself to appellant

he did not have an opportunity to say anything before appellant volunteered his statement. Ormsby

stated that at the time he was not conducting an interview or interrogation of appellant. Ormsby

acknowledged that the Miranda warnings were not given under the circumstances. When Ormsby

later asked appellant if he wanted to speak about the offense, appellant replied: "Yes, but not now."

Ormsby then left the jail.

Subsequent to this testimony, the prosecutor, without objection, had Ormsby repeat

the statement appellant made to him about beating Walkuski. The prosecutor then proceeded with

her direct examination of Ormsby about other matters. On cross-examination, Ormsby, in response

to defense counsel's question about the voluntariness of the statement, repeated the "beating" portion

of appellant's statement. No ruling was ever obtained on appellant's objections.

Preservation of Error

In order to preserve error as to the admission of testimony, a party must present a

timely specific objection, and secure an adverse ruling. Tex. R. App. P. 33.1; Tex. R. Evid

103(a)(1). Preservation of error for appellate review generally requires a timely objection. Robinson

v. State , 16 S.W.3d 808, 809 (Tex. Crim. App. 2000). Here, Detective Ormsby had already testified

as to appellant's oral statement and was relating other matters before an objection was interposed.

Appellant's objection was not timely. Moreover, appellant never obtained an adverse ruling on his

objections. Absent an adverse ruling on an objection, nothing is preserved for review. Rey v. State ,

897 S.W.2d 333, 336 (Tex. Crim. App. 1995); Oestrick v. State , 939 S.W.2d 232, 235 (Tex.

App.--Austin 1997, pet. ref'd).

Still further, a specific objection must be made each time an offer of inadmissible

evidence is made in order to preserve any error for review. Purtell v. State , 761 S.W.2d 360, 368

(Tex. Crim. App. 1988); Hudson v. State , 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); Miranda

v. State , 813 S.W.2d 724, 739 (Tex. App.--San Antonio 1991, pet. ref'd). In addition, the improper

admission of evidence is not reversible error or harmful when the same facts are proven by other

unobjected-to testimony. Leday v. State , 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Anderson

v. State , 717 S.W.2d 622, 626-27 (Tex. Crim. App. 1986); Miranda , 813 S.W.2d at 739 . In the

instant case, the prosecutor had Detective Ormsby repeat appellant's oral statement. Thus, the

statement complained of was subsequently elicited without objection.

Appellant has based his point of error on a claim that there was a violation of article

38.22. Tex. Code Crim. Proc. Ann. art. 38.22 (West 1979 & Supp. 2002). Appellant's trial

objections, on which he did not obtain an adverse ruling, were "narrative" and later a motion to strike

Ormsby's testimony "under 38.21 of the Code of Criminal Procedure is not complied with, article

30." A complaint on appeal must comport with the trial objection in order to preserve error for

review. Curry v. State , 910 S.W.2d 490, 495 (Tex. Crim. App. 1995); Rezac v. State , 782 S.W.2d

869, 870 (Tex. Crim. App. 1990); Balfour v. State , 993 S.W.2d 765, 770 (Tex. App.--Austin 1999,

no pet.). A specific trial objection preserves only the specific grounds cited for review. Reed v.

State , 927 S.W.2d 289, 291 (Tex. App.--Fort Worth 1996, no pet.). Appellant's complaint on

appeal was not raised in the trial court. See State v. Mercado , 972 S.W.2d 75, 78 (Tex. Crim. App.

1998). Appellant's contention on appeal was not preserved for review because of the foregoing

procedural defaults.

Even in the absence of the foregoing procedural defaults, appellant's contention is

without merit. A voluntary oral statement may be admissible on the issue of guilt if it is not the

"result of" or does not "stem from custodial interrogation." May v. State , 618 S.W.2d 333, 338 (Tex.

Crim. App. 1981); see also Chambliss v. State , 647 S.W.2d 257, 262 (Tex. Crim. App. 1987).

Article 38.22 of the Texas Code of Criminal Procedure and Miranda apply only to statements made

as the result of custodial interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West 1979)

(nothing in article precludes admission of statement made by accused if statement does not stem

from custodial interrogation); Miranda v. Arizona , 384 U.S. 436, 478 (1966) (volunteered statements

are not barred by Fifth Amendment or this holding). See also Rhode Island v. Innis , 446 U.S. 291,

300 (1980); Lam v. State , 25 S.W.3d 233, 239 (Tex. App.--San Antonio 2000, no pet.).

"Custodial interrogation" is questioning initiated by law enforcement officers after

a person has been taken into custody or otherwise deprived of his freedom of action in any

significant way. Miranda , 384 U.S. at 444 ; Cannon v. State , 691 S.W.2d 664, 671 (Tex. Crim. App.

1987); State v. Waldrop , 7 S.W.3d 836, 839 (Tex. App.--Austin 1999, no pet.). (2) That a person

makes a statement at a police station in response to questioning does not automatically make the

resulting statement the product of "custodial interrogation." Holland v. State , 770 S.W.2d 56, 58

(Tex. App.--Austin 1989), aff'd, 802 S.W.2d 696 (Tex. Crim. App. 1991). Offhand remarks, not

designed to elicit any kind of response, do not constitute custodial interrogation. Innis , 446 U.S. at

303 ; Murray v. State, 864 S.W.2d 111, 114 (Tex. App.--Texarkana 1993, pet. ref'd). General and

routine questions also do not constitute interrogation. Jones v. State , 795 S.W.2d 171 , 174 n. 3 (Tex.

Crim. App. 1990).

In the instant case, the officer merely identified himself as the officer who obtained

the arrest warrants when appellant immediately made his unsolicited statement. The statement was

not the product of custodial interrogation. The fact that appellant was in custody does not show that

the statement stemmed from custodial interrogation. Kelley v. State , 817 S.W.2d 168, 173 (Tex.

App.--Austin 1991, pet. ref'd). Appellant's first point of error is overruled for all the reasons stated.

Factual Sufficiency

In his second point of error appellant contends that the "evidence is factually

insufficient to support a conviction for aggravated assault because the conviction relies on unlawfully

admitted evidence." Appellant then adds, "[E]ven with the unlawfully admitted evidence, the

evidence is factually insufficient to support a conviction for aggravated assault."

Appellant does not challenge the legal sufficiency of the evidence to sustain the

conviction. Further, a review of the factual sufficiency of the evidence begins with the presumption

that the evidence supporting the judgment was legally sufficient. See Clewis v. State , 922 S.W.2d

126, 134 (Tex. Crim. App. 1996). In such a review, we consider the evidence without employing

the prism of "in the light most favorable to the verdict." Id . at 129. A reviewing court must consider

all the evidence impartially, comparing evidence that tends to prove the existence of a disputed fact

or facts with evidence that tends to disprove that fact or those facts. Santellan v. State , 939 S.W.2d

155, 164 (Tex. Crim. App. 1997). The verdict or judgment is to be set aside only when the factual

finding is against the great weight and preponderance of the evidence so as to be clearly wrong and

unjust. Clewis , 922 S.W.2d at 129 . In the factual sufficiency analysis, it must be remembered that

the trier of fact is the sole judge of the weight and credibility of the testimony. Santellan , 939

S.W.2d at 164 . Appellate courts should be on guard not to substitute their own judgment in these

matters for that of the trier of fact. Id . One principle of the factual sufficiency analysis is deference

to the findings of the jury or other fact finder. Cain v. State , 958 S.W.2d 404, 407 (Tex. Crim. App.

1997). Moreover, "[a] decision is not manifestly unjust merely because the jury [or fact finder]

resolved conflicting views of the evidence in favor of the State." Id . at 410.

In the latest clarification of the standard of review involved, the Court of Criminal

Appeals made clear that the Clewis criminal factually sufficiency review encompasses both

formulations utilized in civil jurisprudence. Evidence is factually insufficient if it is so weak as to

be clearly wrong and manifestly unjust or the adverse finding is against the great weight and

preponderance of the available evidence. Johnson , 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Thus,

in conducting a Clewis sufficiency review of the elements of a criminal conviction, an appellate court

must ask whether a neutral review, both for or against the finding, demonstrates that the proof of

guilt is so obviously weak as to undermine the confidence in the jury's determination or that proof

of guilt, although adequate taken alone, is greatly outweighed by contrary proof. Id .

In performing this review, due deference is still to be given to the jury's or fact-finder's determination. Id . at 8-9. (3) Consequently, we may find the evidence factually insufficient

only where necessary to prevent manifest injustice. Id. at 9, 12; Cain , 958 S.W.2d at 407 .

Consideration--Improperly Admitted Evidence

Appellant first contends that before a factual sufficiency of the evidence review can

be undertaken, the improper admission of his oral statement to Detective Ormsby must be removed

from the equation. Appellant cites no authority for this contention. In a legal sufficiency challenge,

a reviewing court must consider all the evidence, rightly or wrongly admitted, which the trier of fact

was permitted to consider. See Garcia v. State , 919 S.W.2d 370, 378 (Tex. Crim. App. 1994);

Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Rodriguez v. State , 939 S.W.2d 211,

218 (Tex. App.--Austin 1997, no pet.). We conclude that the same rule and reasoning are applicable

to a factual sufficiency review. The cases discussing factual sufficiency review require that there be

an impartial review of all the evidence. See, e.g. , Johnson , 23 S.W.2d at 11; Santellan , 939 S.W.2d

at 164 ; see also 43 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and

Procedure § 31.134 (2d ed. 2001). We reject appellant's contention that we redact the oral statement

made to Detective Ormsby from the evidence in considering his point of error.

The Elements Contested

Although the presumption is that the evidence is legally sufficient, appellant contends

specifically, with the oral statement in the mix, that the evidence is factually insufficient to show that

Walkuski suffered serious bodily injury as alleged and as required by section 22.02 of the Penal

Code under which he was prosecuted. Section 22.02 provides in pertinent part:

A person commits an offense if the person commits assault as defined in Section

21.01 and the person:

causes serious bodily injury to another, including the person's spouse.

Tex. Pen. Code Ann. § 22.02 (West 1994).

Count III of the indictment alleges in pertinent part that appellant acting together with

Michael Martinez on or about March 4, 2000:

did then and there knowingly cause serious bodily injury to Daniel Walkuski by

repeatedly punching the aforesaid Daniel Walkuski about the face causing him to

sustain a fractured nose.

"Bodily injury" means physical pain, illness, or any impairment of physical condition."

Tex. Pen. Code Ann. § 1.07 (a)(8) (West 1994). "'Serious bodily injury' means bodily injury that

creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ." Id . § 1.07(a)(46). The

distinction between "bodily injury" and "serious bodily injury" is often a matter of degree and the

distinction must be determined on a case-by-case basis. See Moore v. State , 739 S.W.2d 347, 349,

352 (Tex. Crim. App. 1987); Madden v. State , 911 S.W.2d 236, 244 (Tex. App.--Waco 1995, pet.

ref'd).

Both parties seem to agree that a broken nose may amount to a protracted loss or

impairment of the function of a bodily member or organ. See Brown v. State , 605 S.W.2d 572, 575

(Tex. Crim. App. 1980), overruled on other grounds by Hedike v. State , 779 S.W.2d 837 (Tex. Crim.

App. 1989). Appellant contends, however, that the instant facts do not show this loss or impairment.

Nurse Veidt testified that her examination of Walkuski showed that he had a broken nose and

suffered "lots of nose trauma" which could cause a serious impairment of a person's ability to

breathe. She expressed the opinion that when a person sustains a fractured nose there is a likelihood

that the person will suffer some protracted loss of the function or an impairment of the use of the

organ. Walkuski testified that as a result of the assault his nose was fractured in two places. On

cross-examination, Walkuski was asked if his nose was giving him "any trouble." He responded:

"I have a hard - hard time breathing." The trial occurred fourteen months after the assault and

injury.

Appellant also urges that Walkuski's injury was not directly linked to appellant or his

actions, independent of the improperly admitted oral statement. For reasons already stated, the oral

statement is properly a part of the evidence to be considered. Appellant relies on his trial testimony

and that of Martinez and Castro that he did not participate in the assault on Walkuski. Appellant also

notes that while Walkuski had first indicated that appellant and Martinez "both" broke his nose,

Walkuski then changed his testimony, stating that Pearl and Martinez did so.

To the contrary is appellant's statement to Ormsby that he had severely beaten Walkuski

and Martinez's testimony that he had also personally beaten Walkuski. Inmate Daniel and Walkuski

testified that appellant and Martinez both beat Walkuski and earlier had forced Pearl and Walkuski

to fight each other.

The indictment charged that appellant and Martinez were acting together. Cf. Pitts v. State ,

569 S.W.2d 898, 900 (Tex. Crim. App. 1978); Hanson v. State , 55 S.W.3d 681, 692 (Tex.

App.--Austin 2001, pet. ref'd). The jury charge included an instruction on the law of parties which

allows the State to enlarge a defendant's criminal responsibility to acts in which he may not be the

primary actor. See Tex. Pen. Code Ann. § 7.02 (West 1994); Goff v. State , 931 S.W.2d 537, 544

(Tex. Crim. App. 1996); Rivera v. State , 990 S.W.2d 882, 887 (Tex. App.--Austin 1999, pet. ref'd).

To establish liability as a party, the State must show that the defendant had the intent to promote or

assist the commission of the offense. Rivera , 990 S.W.2d at 887 . The evidence must reflect that at

time of the offense the parties acted together each doing some part to execute the common design,

a design which can be shown by direct or circumstantial evidence. Id . at 887-88. Under the

evidence the jury could have concluded that appellant and Martinez were acting together in

committing the crime charged, even if appellant did not actually break Walkuski's nose himself. See

Hartson v. State , 59 S.W.3d 780, 786 (Tex. App.--Texarkana 2001, no pet.).

We do not substitute our judgment for that of the jury and will set aside a verdict only if

it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Johnson , 23 S.W.3d at 7 ; Clewis , 922 S.W.2d at 129 ; Saldana v. State , 59 S.W.3d 703, 709 (Tex.

App.--Austin 2001, pet. filed). Appellant's second point of error is overruled.

The judgment is reformed to reflect the fine assessed by the jury to be $2,500 rather than

$5,000. As reformed, the judgment is affirmed.

__________________________________________

John F. Onion, Jr., Justice

Before Justices B. A. Smith, Yeakel and Onion *

Reformed and, as Reformed, Affirmed

Filed: May 9 , 2002

Publish

* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by

assignment. See Tex. Gov't Code Ann. § 74.003 (b) (West 1998).

1. The formal judgment and sentence is in error in reflecting that the fine assessed was

$5,000. It does not track the jury's verdict and will be reformed.

2. The Court of Criminal Appeals has said that "custodial interrogation" occurs when a person

in custody is subjected to direct questioning or its functional equivalent, which occurs when police

officers engage in conduct that they know is likely to elicit an incriminating response from the

defendant. McCrory v. State , 643 S.W.2d 725, 734 (Tex. Crim. App. 1982). Appellant relies on

McCrory , but the record does not show Detective Ormsby's actions to be the functional equivalent

of "custodial interrogation."

3. For a discussion of appropriate deference, see Johnson , 23 S.W.3d 1, 8 (Tex. Crim. App.

2000).