Opinion
No. 09-09-00140-CR
Submitted on April 2, 2010.
Opinion Delivered May 5, 2010. DO NOT PUBLISH.
On Appeal from the Criminal District Court Jefferson County, Texas, Trial Cause No. 93672.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Kerron Lavern Otis appeals his capital murder conviction. TEX. PEN. CODE ANN. § 19.03(a)(2) (Vernon Supp. 2009). A jury found appellant guilty and the trial court sentenced him to life in prison. See TEX. CODE CRIM. PROC. ANN. art. 37.071, § 1 (Vernon 2003). On appeal, appellant argues that the evidence was factually insufficient to support the jury's rejection of his affirmative defense of insanity, and that the trial court erred in admitting his written statement. Because the evidence supports the jury's verdict, and the trial court did not err in admitting appellant's statement, we affirm the judgment. Frederick Arnold drove a white Chrysler New Yorker to go fishing in a canal beside the church he attended off Highway 73 in Port Acres. After he did not return home that evening, his son searched for him at New Covenant Church, and found him lying face down by the canal with a gunshot wound to his head. Arnold died from the injury. On the day of Arnold's death, two brothers working at an adjacent church noticed a suspiciously-parked white vehicle. One of the brothers approached the vehicle. He noticed a man wearing a black-knit cap in the car with his head down like he was going through something. The driver made eye contact, then backed out at a normal rate of speed and drove west on Highway 73. The brothers reported the suspicious vehicle to the police. Around one o'clock that afternoon, an officer was dispatched to the Jesus Tabernacle Church to investigate the report. He did not locate the vehicle there, but soon saw the vehicle locked and parked no more than 200 yards from the New Covenant Church. Around the same time, a postal worker delivering mail in the vicinity of the New Covenant Church pulled off the road to avoid a white car that was driving so fast it went airborne. The car was coming from the general direction of Highway 73 towards where the road ended at 59th Street. As the car passed, she noticed that the driver appeared to be the only one in the vehicle. She did not see which way the car turned onto 59th Street. On the news the next day, she noted reports of an attempt to locate a vehicle in connection with a murder; the vehicle matched the description of the white car that sped past her the day before. She reported what had happened to the police. A man who lived on 59th Street was in his yard on the day of the murder. Sometime before 3:30 that afternoon, he saw a man driving a white vehicle at a high rate of speed down 59th towards where 59th Street dead ends into a canal. That night on the news he heard the police were attempting to locate a vehicle in connection with a murder at New Covenant Church. He wrote down the reported license plate number. The next day, a neighbor asked him if he knew anything about the vehicle parked in the dead end of 59th Street by the canal. The vehicle was in a secluded spot — parked off the street and screened by bushes. The vehicle was the same vehicle that had sped past the day before. The license plate matched the description broadcast on the news. The car was later identified as Arnold's vehicle. Fingerprints from the vehicle were retrieved but none of the prints matched any of the four suspects, which included appellant, or anyone in law enforcement's database. The police retrieved a plastic wrapper and a black-knit cap found near the vehicle. An investigation revealed that the suspiciously-parked vehicle reported by the brothers at the adjacent church had been purchased by appellant from Roman Auto Sales in Port Arthur prior to Arnold's death. Police attempted to talk to appellant. He became angry and refused to speak to the police. Almost a year after Arnold's death, Detective James Underhill received information that appellant wanted to talk with him about a homicide. Detective Underhill took appellant's statement. Appellant stated he bought a white Oldsmobile from Roman Auto on Gulfway Drive prior to Arnold's death. He left home with "a .22 revolver black with wood grips and a .25 automatic black." He retrieved property out of his house to sell for drugs. He gave a man a stereo system and speakers in exchange for crack and an old single shot 12 gauge shotgun with a sawed-off barrel and gold shotgun shells. He said he met two "Musl[i]m brothers" at the mosque in Port Arthur and together they decided "to kill some Christians." They rode down Highway 73. They saw a 4-door white car out in front of the church, and stopped and parked across the highway from the church. They saw a man fishing on the side of the church and walked towards him. The man fishing was "about in his fifties" and was wearing jeans and "maybe a striped shirt." One of the Muslim men pulled out the shotgun and ordered the man to the ground while the other Muslim man got the man's wallet and keys. The man with the shotgun shot the fisherman while appellant was "probably 30 feet away." Appellant said the two Muslim men got into the victim's car and appellant went to his car. Appellant followed the Muslim men as they drove the victim's car "kind of fast" down a dead-end street. The men then turned left, parked, and abandoned the vehicle. They told appellant they threw the shotgun, the wallet, and appellant's backpack in the water and that his other gun was in the grass. According to appellant, the Muslim men left town. Two days later, appellant recanted the statement in a letter to the Port Arthur Police Department. The letter explained that he admitted to the murder which he did not commit because he thought he would get the death penalty and he wanted to die. D.P.S. divers recovered a sawed-off 12-gauge shotgun and a gold 12-gauge shell from the canal at the end of 59th Street. Arnold's keys were also found in the canal. Law enforcement interviewed the imam at the Port Arthur mosque, and he could not confirm the existence of the two "Muslim brothers." At trial, appellant testified that the written statement contained lies. He bought the shotgun two or three weeks prior to the murder. On the day of the murder he was hearing voices and the voices were telling him to eat rat poison. He went to the store, bought rat poison, and ate it because the voices told him that he would die and then "come back" as Lucifer and have more powers. He was wearing a black knit cap. He parked by the blue church and then he saw a vision of his mother at the "Covenant Church" and she was standing by Frederick Arnold. The voices told him that Arnold was trying to keep him from ruling the world and that he needed to kill Arnold. He drove down Highway 73 and started hearing screams so he got out of the car and grabbed a gun out of his trunk and started running down the street. He was mad because he was tired of hearing voices. Arnold was fishing and turned around. Arnold asked appellant how he was doing and appellant heard a voice say, "free him." Appellant pulled out his gun. Arnold begged appellant not to hurt him. Arnold took his wallet out of his pocket and threw it and his keys on the ground. Appellant ordered Arnold to get down, and then shot him. He took Arnold's wallet, keys, and vehicle. He drove away fast in Arnold's vehicle down to the end of 59th Street and threw everything in the canal. Appellant argues the evidence was factually insufficient to support the jury's rejection of his affirmative defense of insanity. "It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." TEX. PEN. CODE ANN. § 8.01(a) (Vernon 2003). When a defendant challenges on appeal the factual sufficiency of the evidence supporting the jury's rejection of his insanity affirmative defense, we will consider all the evidence relevant to the affirmative defense of insanity in a neutral light to determine whether the jury's decision was so against the great weight and preponderance of the evidence as to be manifestly unjust. Bigby v. State, 892 S.W.2d 864, 875 (Tex. Crim. App. 1994); Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990). The Court of Criminal Appeals recently explained the affirmative defense of legal insanity as follows:
Texas law, like that of all American jurisdictions, presumes that a criminal defendant is sane and that he intends the natural consequences of his acts. Texas law, like that of many American jurisdictions, excuses a defendant from criminal responsibility if he proves, by a preponderance of the evidence, the affirmative defense of insanity. This defense excuses the person from criminal responsibility even though the State has proven every element of the offense, including the mens rea, beyond a reasonable doubt. The test for determining insanity is whether, at the time of the conduct charged, the defendant — as a result of a severe mental disease or defect — did not know that his conduct was "wrong." Under Texas law, "wrong" in this context means "illegal." Thus, the question for deciding insanity is this: Does the defendant factually know that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified?Ruffin v. State, 270 S.W.3d 586, 591-92 (Tex. Crim. App. 2008) (footnotes omitted). While expert testimony may assist the jury in its determination of the insanity issue, such testimony does not dictate the result. See Graham v. State, 566 S.W.2d 941, 949 (Tex. Crim. App. 1978); Torres v. State, 976 S.W.2d 345, 347 (Tex. App.-Corpus Christi 1998, no pet.). In reaching its decision on insanity, the jury may consider circumstantial evidence, including: the defendant's demeanor before and after the crime; the defendant's attempts to evade police or conceal incriminating evidence; the defendant's expressions of regret or fear, of the consequences of his actions; and any other possible explanations for the defendant's behavior. Torres, 976 S.W.2d at 347-48. Appellant testified he does not think he has a mental illness. He said he began hearing voices around the time he was in fourth grade and still continues to hear voices. While in prison on another conviction, he was going back and forth to mental hospitals but was noncompliant with his medication. He said he met Millet Harrison, another resident at Rusk State Hospital. He said he lied about two other men being involved because he did not want people to think he was a "bad guy" and because he "didn't want nobody to know that [he] did this." He testified that at the time he shot Arnold, he did not realize it was wrong. Millet Harrison testified at trial. Millet was found not guilty by reason of insanity in the murder of his mother in 1994. He claimed that he had been off his medication, voices told him his mother was evil, and he killed her. In early September 2004 Harrison discussed his case with appellant and told him that he had been found not guilty by reason of insanity after confessing his crime. Psychiatrist Dr. Edward Gripon testified that he first came into contact with appellant in April or May of 2004 and has seen him "over a period of slightly less than 5 years at least a dozen times, maybe more[.]" According to Gripon, appellant has a form of schizophrenia called schizoaffective disorder. Gripon testified that over the years he has observed appellant to have hallucinations and delusional thoughts. During periods of intensive treatment appellant acts relatively normal, but when he is not under treatment "he becomes very hyperactive, talks excessively, rapidly, [and] has grandiose ideas[.]" Gripon testified appellant has demonstrated the symptoms of schizophrenia for the four-and-a-half years he has known appellant, and the records Gripon reviewed showed that he had "mental health difficult[ies]" preceding 2004. Gripon stated he saw appellant in January of 2009 and appellant's condition was significantly better. He could sit calmly and answer questions responsively. His condition improves when he takes large amounts of psychoactives, medicines that affect the nervous system. He would routinely come back from the State hospital, not take his medication, and then become ill within a few weeks. Gripon believes that in the years that he has visited with appellant, appellant has never appeared to accept that he is mentally ill. Dr. Gripon agreed with a psychiatric report from a mental health unit at the Texas Department of Criminal Justice; the report that stated in April 2000 appellant would be a great risk to himself and others if released into the community. According to Dr. Gripon, a patient who has a history of mental illness and that is noncompliant with medications, and who hears command hallucinations to commit a murder, would not know what he was doing was wrong. He stated that a patient under those circumstances could give different renditions of what they believed to have happened and those renditions could vary based on the condition of the individual at any given period. On cross-examination, Dr. Gripon admitted that a person could have the insight to find it desirous to be found not guilty by reason of insanity, if they improved to a point where they could understand their options. He also stated that he has been told by patients in the State hospital system that other patients discuss the defense of not guilty by reason of insanity among themselves. He testified that he had been told by a mental health staff member at the Jefferson County Correctional Facility that Millet Harrison had been counseling appellant. Over the years, Gripon has interviewed Millet Harrison and believes Harrison "probably has a pretty good command of the process, procedures and the issues of the State hospital system . . . [and Gripon] would expect that [Harrison] probably is . . . counseling heaven knows who at the Rusk State Hospital." Gripon stated that the written statement given by appellant on September 29, 2004, did not indicate any manifestation of mental disease, but that the letter written two days later evidences delusional behavior by appellant. Herbert Otis, appellant's brother and a police officer, testified that he and his brother were abused as children and that when appellant was three or four years old, Herbert first noticed he might have mental problems. In fourth grade, appellant became a patient at a mental health facility. As a teenager appellant was not a violent person but started getting into trouble as a juvenile. As a young man, he was convicted of robbery and served twelve years in prison. When he finished his prison sentence in 2000, he told Herbert he was hearing voices. The jury heard evidence that appellant robbed Arnold of his wallet, keys, and vehicle. He drove at a high rate of speed down 59th Street and abandoned Arnold's vehicle in a secluded spot. He discarded the wallet, keys, and the sawed-off shotgun in the canal. He discussed with Millet Harrison the defense of not guilty by reason of insanity just prior to providing his confession. He lied about committing the murder and blamed it on two others whose existence could not be confirmed. At trial, he explained he lied to law enforcement in his confession because he did not want anyone to think he was a "bad guy." On this record, there was evidence supporting the jury's rejection of appellant's affirmative defense of insanity. See Bigby, 892 S.W.2d at 877-78; Torres, 976 S.W.2d at 347-48. The jury could reasonably conclude the defendant knew "that society considers this conduct against the law, even though the defendant, due to his mental disease or defect, may think that the conduct is morally justified[.]" See Ruffin, 270 S.W.3d at 592. The verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Bigby, 892 S.W.2d at 875. We overrule appellant's first issue. In his second issue, appellant maintains the trial court erred in admitting his written statement. He claims that the statement given to law enforcement on September 29, 2004, was given at a time he was incompetent to voluntarily and knowingly give a confession. Otis did not object to the admission of the statement. Under Texas Code of Criminal Procedure article 38.21, "A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion[.]" TEX. CODE CRIM. PROC. ANN. art. 38.21 (Vernon 2005). A defendant may claim that his statement was not freely and voluntarily made and thus may not be used as evidence against him under several different theories: (1) Code of Criminal Procedure article 38.22, section 6; (2) Miranda v. Arizona, as expanded in article 38.22, sections 2 and 3; or (3) the Due Process Clause of the United States Constitution. Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008); see also U.S. CONST. amend. V; TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A statement is not inadmissible merely because a defendant suffers from mental impairments. See Green v. State, 839 S.W.2d 935, 940 (Tex. App.-Waco 1992, pet. ref'd); see also Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970). Evidence of diminished mental capacity is merely one factor to consider in determining whether a confession is admissible. See Bizzarri v. State, 492 S.W.2d 944, 946 (Tex .Crim. App. 1973). The question is whether appellant's mental impairment was so severe that he was incapable of understanding the meaning and effect of his confession. See Green, 839 S.W.2d at 940. When Detective Underhill first met with appellant, Underhill read the Miranda warnings and the warnings were printed on the statement itself. The warnings included those required by article 38.22 of the Texas Code of Criminal Procedure. Appellant indicated he understood his rights. Appellant communicated his statement clearly. He told Underhill what happened and answered specific questions. His responses were relevant in the context they were asked. He was calm during the conversation, and Underhill at no time noted any indicators that he was having any mental difficulty or any hallucinations. The next day, Underhill prepared a written version of the oral statement. He took the written version back to appellant in the Jefferson County Detention Center on September 29, 2004, and again warned appellant of his rights pursuant to both Miranda and Article 38.22. Appellant did not ask to terminate the interview. During the three or four hour interview, appellant did not say he had a lawyer, that he wanted to contact his lawyer, or that he wanted the court to appoint him a lawyer. Underhill read each warning separately and after reading it, asked appellant if he understood that particular warning. He asked him to initial a blank in front of each warning to indicate that he understood. According to Underhill, appellant's responses on September 29, 2004, were responsive to the questions Underhill asked, and there were no indications appellants was experiencing any visual or auditory hallucinations or any manifestation of mental disease or defect. On that day, it appeared to Underhill that appellant knowingly, intelligently and voluntarily waived his rights under the constitutions of the United States, the State of Texas, and Article 38.22 of the Code of Criminal Procedure in giving and signing the statement in Underhill's presence. Appellant was given an opportunity to review the statement and make additions, corrections, or deletions as he wished. Detective Whiting was also present during the taking of the written statement on September 29, 2004. Whiting testified appellant was articulate and at no time did he say he was experiencing any kind of hallucinations or difficulties. Appellant's responses were oriented to the questions asked and were detailed. Appellant read the statement out loud and corrected mistakes in the statement. The trial court did not err in admitting appellant's statement. We overrule appellant's second issue. We affirm the trial court's judgment. AFFIRMED.
In this opinion we cite to the current version of the statutes as the amendments to the statutes do not apply to this appeal and the subsections pertinent to this case have not materially changed since the date of appellant's offense.