Opinion
Nos. 05-99-01851-CR, 05-99-01854-CR, 05-99-01852-CR, 05-99-01855-CR, 05-99-01853-CR, 05-99-01856-CR.
Opinion Issued August 28, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F99-02213-WN, F99-02212-WN, F94-60826-WN, F99-02211-WN, F99-02178-UN, F97-00889-QN. Affirmed in part, Dismissed in part, Reversed and Remand in part.
OPINION
Kenneth Ray Brown appeals his convictions for aggravated kidnaping (05-99-01851-CR); escape (05-99-01852-CR); possession of cocaine in an amount less than one gram (05-99-01853-CR), aggravated robbery with a deadly weapon (05-99-01854-CR), aggravated assault on a public servant (05-99-01855-CR), and aggravated assault with a deadly weapon (05-99-01856-CR). Cause nos. 05-99-01853-CR and 05-99-01856-CR involve appeals following the trial court's revocation of community supervision and adjudication of guilt, respectively. The remaining causes are appeals following a jury trial on appellant's not guilty pleas. Punishment, enhanced by one prior felony conviction in each case, was assessed as follows: (1) eighty-five years confinement and a $5000 fine for the aggravated kidnaping; (2) fifteen years for the escape; (3) six years confinement and a $700 fine in the cocaine case; (4) sixty years and a $5000 fine for the aggravated robbery; (5) life imprisonment and a $10,000 fine for the aggravated assault on a public servant; and (6) ten years confinement for the aggravated assault. In two points of error, appellant complains the trial court erred in admitting into evidence appellant's written statements during the jury trials, and in considering them during the adjudication and revocation hearings, and that the six-year sentence imposed in the cocaine case exceeds the statutory maximum for a state jail felony. We will affirm in part, reverse and remand in part, and dismiss in part.
Facts
Although there is no challenge to the legal or factual sufficiency of the evidence, a brief rendition of the salient facts is necessary to place appellant's points of error in proper context. We will examine the evidence in the light most favorable to the verdict. The record reflects that on or about May 25, 1999, appellant embarked on a brief, one-man crime spree in the city of Dallas. He allegedly participated in a murder, robbed a store, and then, when confronted by police in the downtown area immediately after robbing the store, he kidnaped a citizen, shot a police officer in his bullet proof vest and attempted to flee. Later, after police at the scene of the kidnaping arrested him, appellant attempted to escape from police custody, but was recaptured. While in police custody, several attempts were made by police to interrogate appellant concerning some of these crimes.Admission of Statement
In his first point of error, appellant complains the trial court erred in admitting into evidence before the jury, and in considering it himself during the adjudication and revocation hearings, appellant's written custodial statements that pertained to one or more of these crimes. Essentially, appellant argues that early on in the interrogation process, he invoked his right to consult with legal counsel, thus any statements obtained by police after this invocation were inadmissible and violated the United States Constitution and Articles V and XIV of the Texas Constitution. The State responds although appellant did indeed invoke his right to counsel, he, later in time, re-initiated conversation with the officers, changed his mind, and decided to waive his right to counsel and make an inculpatory statement. The State also contends that appellant failed to brief how the United States and Texas Constitutions differ with respect to the invocation of the right to counsel, or that the Texas Constitution affords Texas citizens more protection that its federal counterpart. We agree and will treat appellant's point of error as a claim under the Fifth Amendment to the United States Constitution solely. See Dowthitt v. State, 931 S.W.2d 244, 254 n. 4 (Tex.Crim.App. 1996); see also Heitman v. State, 815 S.W.2d 681, 690-91 n. 23 (Tex.Crim.App. 1991). At the pretrial hearing, Dallas police detective Johnson testified that he talked to appellant at police headquarters on May 25, 1999 at about 2:00 p.m. Johnson had been told that appellant had just been arrested for shooting at a police officer. Johnson read appellant his Miranda rights. Appellant waived his rights and began talking with Johnson. After appellant gave a couple of his versions of the facts, he refused to put any statement into writing and invoked his right to consult counsel. Johnson immediately terminated the interview. While Johnson was taking photographs of appellant in the hallway, Detective Ermatinger walked by and asked appellant about a different offense. Appellant again invoked his right to counsel and Ermatinger ceased any further questioning. Some time later, appellant escaped custody for a brief time, but was recaptured. After his recapture, appellant told Detective Crum that he wanted to talk to Johnson. Crum relayed this information to Sergeant DeCorte, who in turn alerted Johnson that appellant wished to speak to him again. According to prosecution witnesses, neither Crum nor DeCorte interviewed appellant. During a second interview, Johnson asked appellant if he wanted to waive his rights and talk and asked if appellant wanted to give a statement. Appellant replied in the affirmative. Appellant expressed his wish to talk with Johnson without benefit of counsel. Johnson drafted a written statement using appellant's words. No threats or promises of leniency were made by Johnson to appellant to coerce a statement from him. Once the statement was drafted, Johnson brought in a civilian witness, read the Miranda warnings again, and had appellant initial the warnings. Johnson then read the complete statement aloud. Desiring no changes to the text, appellant signed the handwritten statement. Johnson then had the statement typed, and read the statement, complete with the Miranda warnings, to appellant again. Appellant signed the typed statement. Appellant testified at the pretrial hearing that DeCorte threatened him with bodily harm immediately after appellant's quixotic escape attempt. Appellant claimed DeCorte said he would get a rope and know what to do with appellant. Appellant stated that but for DeCorte's threats, he would never have signed a written inculpatory statement. Appellant admitted that all of the other officers had read him his rights and had honored his right to terminate any interrogation of him. At the conclusion of the hearing, the trial court found the statement was given freely and that appellant waived his right to counsel knowingly and voluntarily. Once an accused invokes his right to counsel, interrogation must cease until counsel has been made available, unless the accused himself initiates further communication. Minnick v. Mississippi, 498 U.S. 146, 150 (1990); Muniz v. State, 851 S.W.2d 238, 252 (Tex.Crim.App. 1993); Ramirez v. State, 76 S.W.3d 121, 125 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). The purpose of this rule is to insure that any statement made in a subsequent interrogation is not the result of coercive pressure or the overbearing of a suspect's will. See Minnick, 498 U.S. at 151; Ramirez, 76 S.W.3d at 125. An accused may, however, waive the Fifth Amendment right to counsel even after having already invoked it. See Minnick, 498 U.S. at 154-56. To establish waiver, the State must demonstrate the defendant intentionally relinquished a right of which he was aware. Muniz, 851 S.W.2d at 253; Ramirez, 76 S.W.3d at 125. Whether a waiver is shown "must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience and conduct of the accused." Ramirez, 76 S.W.3d at 125 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). If the State's evidence demonstrates nothing more than the fact that the accused responded to further police-initiated custodial interrogation, then a valid waiver is not shown. Muniz, 851 S.W.2d at 253. Essentially, to show waiver, the State must demonstrate: (1) the accused personally initiated the contact with police that led to the waiver; and (2) the accused knowingly and intelligently waived his previously invoked right to consult with counsel. See Etheridge v. State, 903 S.W.2d 1, 18 (Tex.Crim.App. 1994). As is often the situation, the record in this case contains conflicting evidence regarding whether appellant initiated further contact with the police. In a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000) (citing State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App. 1999)). Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony, even if that testimony is not controverted, "because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record." Id. Thus, where, as here, the evidence is conflicting, we must defer to the fact-finding ability of the trial court. Appellant conceded that his right to terminate interviews was honored by both Ermatinger and Johnson when he was in their presence. Therefore, the only remaining issue is whether DeCorte threatened appellant in such a manner that appellant believed he had to give a statement to police or face bodily harm. The trial court observed all of the witnesses testify and was able to assay their demeanor and credibility, including their motivation for testifying. The judge no doubt considered that when appellant ultimately did give a written statement, Johnson was the only police authority present. DeCorte was not in the room. Additionally the trial court heard and considered Johnson's testimony that the Miranda warnings were explained to appellant once again immediately before he gave a written statement. There was evidence that a civilian witness was present during the reading of appellant's statement and during the time that Johnson read the statement back to appellant. At that time, appellant did not mention a desire to talk to an attorney. Given all these facts, the trial court's resolution of the controverted issue of a threat by DeCorte in favor of the State is supported by the record, and this Court should not disturb the trial court's decision. See Ross, 32 S.W.3d at 856. We conclude the trial court did not err in determining appellant freely and voluntarily gave the written statement. Therefore, the trial court did not err in admitting the statement before the jury or considering it during the revocation hearing. Point of error one is overruled as it applies to cause nos. 05-99-01851-CR through 05-99-01855-CR. To the extent appellant raises this complaint in cause no. 05-99-01856-CR, appellant is challenging the trial court's determination to adjudicate guilt. Such a complaint is not permitted. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2003); Olowosuko v. State, 826 S.W.2d 940, 941-42 (Tex.Crim.App. 1992). Accordingly, we dismiss the point of error as it applies to cause no. 05-99-01856-CR.Illegal Sentence in Cause No. 05-99-01853-CR
In point of error two, appellant complains the trial court erred in assessing punishment at six years confinement in cause no. 05-99-01853-CR because the enhancement paragraph would not operate to enhance a state jail felony cocaine offense to a third degree felony. The State responds that appellant's failure to object to the enhancement portion of the indictment waived any error in the indictment. The State's argument, however, misses the import of appellant's claim. Appellant does not contend there is a defect per se in the enhancement allegation in the indictment. Rather, he argues that the allegation of the prior felony conviction, even if correct on its face, will not legally support enhancement of the sentence under section 12.35(c) of the penal code. For the following reasons, we agree with appellant. The following version of section 12.35(c) was in effect at the time appellant committed the cocaine possession offense:(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:
(2) The individual has previously been finally convicted of any felony;
(A) listed in Section 3(g)(a)(1), Article 42.12, Code of Criminal Procedure; or
(B) for which the judgment contains an affirmative finding under Section 3(g)(a)(2), Article 42.12, Code of Criminal Procedure.Act of May 29, 1993, 73d Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3603 (current version at Tex. Pen. Code Ann. 12.35(c)(2) (Vernon 2003)). The maximum sentence of confinement for a state jail felony was then, and is now, two years in a state jail facility. See id. (current version at Tex. Pen. Code Ann. 12.35(a) (Vernon 2003)). The indictment in this case alleged a prior felony conviction for aggravated assault, identified by trial court no. F86-88563-TN. There is no dispute that the alleged prior felony conviction was used to raise appellant's punishment to the third-degree felony range under section 12.35(c). There is also no dispute that aggravated assault is not an offense listed under article 42.12, section 3g(a)(1) of the code of criminal procedure. Therefore, the trial court could not properly enhance appellant's sentence under section 12.35(c)(2)(A). The question, then, is whether the trial court could use the prior felony conviction to punish appellant under section 12.35(c)(2)(B). A copy of the trial court's judgment for cause no. F86-88563-TN was admitted into evidence both separately and as part of the "pen packet." Neither copy reflects an affirmative finding by the trial court that appellant used or exhibited a deadly weapon during the commission of the offense. It is true that the underlying indictment in cause no. F86-88563-TN alleges appellant used a deadly weapon and the order deferring adjudication of guilt reflects an affirmative finding to that effect. However, the judgment adjudicating guilt contains no such finding. Although the precise issue has not been decided wherein the judge is the fact-finder, the Texas Court of Criminal Appeals has taken pains to distinguish between a finding by the fact-finder (in this case, the trial court) that a deadly weapon was used, and the inclusion of that finding by the court in its subsequent judgment. See Hooks v. State, 860 S.W.2d 110, 113-14 (Tex.Crim.App. 1993); see also Tucker v. State, 61 S.W.3d 446, 447-48 (Tex. App.-Amarillo 2001, pet. ref'd). Both are needed to satisfy the terms of article 42.12, section 3g(a)(2). Hooks, 860 S.W.2d at 113-14; see also Ex Parte Poe, 751 S.W.2d 873, 875-76 (Tex.Crim.App. 1988). Once the fact-finder determines a deadly weapon was used or exhibited, it is incumbent upon the trial court to affirmatively express that finding in its judgment. Tucker, 61 S.W.3d at 448. It is significant that section 12.35(c)(2)(B) speaks in terms of a "judgment containing an affirmative finding under Section 3g(a)(2)." Id. at 448. This penal code provision focuses not on the existence of the fact finder's affirmatively finding that a deadly weapon was used, but on the explicit inclusion of the fact finding in the judgment. Id. This requirement effectively mirrors that portion of article 42.12, section 3g(a)(2) that also requires inclusion of such a finding in the judgment, and our interpretation of this requirement effectively harmonizes the penal code and code of criminal procedure provisions. Although the indictment and order deferring adjudication of guilt contain the affirmative deadly weapon finding, the judgment adjudicating appellant guilty of aggravated assault in cause no. F86-88563-TN is simply devoid of any affirmative finding by the trial court that a deadly weapon was used or exhibited during the commission of that offense. As such, the punishment in cause no. 05-99-01853-CR was not properly enhanced to the third-degree felony range under section 12.35(c)(2)(B) of the penal code. Therefore, the six-year sentence exceeded the statutory maximum for a state jail felony under section 12.35(a). We sustain appellant's second point of error.