Opinion
No. 05-04-00907-CR
Opinion Filed July 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-81996-03. Affirm.
Before Justices O'NEILL, RICHTER and FRANCIS.
OPINION
Appellant Reece Boyd Dunn appeals his conviction for murder. After the jury found appellant guilty, they answered "No" to the special issue of whether appellant had acted under sudden passion and assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for life. In eleven points of error, appellant contends the evidence was legally and factually insufficient to support the culpable mental state required to convict for murder and to reject appellant's defense of sudden passion, the trial court erred in commenting on the weight of the evidence, admitting into evidence prejudicial photographs and denying appellant's motion to exclude his oral statement, and appellant received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment. Appellant shot his wife, Debbie Dunn, three times in the head in the bedroom of their home. On the third shot, appellant used a pillow to muffle the sound of the gunshot. He then drove his youngest son, who was in the house at the time of the shooting, to a fast food restaurant. Afterwards, he dropped off his son at the home of his adult son from a prior marriage and drove to the home of his long-time friend, Dale King. Appellant told King he had shot his wife and asked King to drive him to the Collin County Jail. Appellant and King proceeded to the jail and approached an intake window. King told the officer on duty that he was bringing appellant to turn himself in because appellant had just killed his wife. Appellant confirmed to jail intake officers Chad McKee and Kyle Chambers that he had killed his wife. Based on appellant's calm demeanor and tone, Officer McKee at first thought appellant was not serious. Appellant repeated that he had killed his wife, stating that the gun was on the bed and his wife was on the floor. One of the officers directed appellant to a holding area in the jail — the "fast track" area — which is behind a locking door. Once the door closes behind a person, a jail employee must "buzz" the door open for that person to leave. Appellant told the police sergeant in the holding area, Rebecca Rucker, that he had killed his wife after an argument. Sergeant Rucker testified that appellant was not free to leave the jail at that point. Appellant provided his driver's license to the sergeant, and Lieutenant Mark Sanderson with the Collin County Sheriff's Department was the first officer to respond to the dispatch call to appellant's house. Upon arriving at appellant's house, Sanderson found the front door locked. He then went around to a window on the side of the house, which he opened, and pushed aside a curtain. Sanderson observed what appeared to be a human foot sticking out to the side of the bed onto the floor. He called out to anyone in the home and received no response. He then ran around to the front of the house and kicked in the front door. Sanderson proceeded to the bedroom, where he found the body of Debbie Dunn in the bed with a "massive wound to her head." Additional deputies, as well as paramedics, then arrived at the home. A paramedic examined the body and determined that Ms. Dunn was deceased. The deputies walked through the rest of the house to ensure no one else needed assistance or was a threat. Sanderson and another deputy then secured the home with crime scene tape, and detectives stayed out until search and arrest warrants were obtained later that evening. Upon receipt of the search warrant, the house was searched. Approximately one hour after appellant turned himself in at the Collin County Jail facility, he was interviewed by police investigator Parrish Cundiff. During that videotaped interview, which was shown to the jury, appellant signed a voluntary statement admitting to shooting Debbie Dunn twice in the head. The document was presented at trial. Appellant presented evidence at trial that he had been depressed over the death of his ex-wife and injury to his in a car accident. He also presented testimony from a clinical psychologist that, in her opinion, appellant's act of shooting Debbie Dunn arose after a series of "extreme stressors and a very strained and difficult relationship between appellant and Dunn.
While appellant admits in his statement to shooting Dunn twice, the record reflects that Dunn was actually shot three times.
Denial of Motion to Suppress
In point of error number eleven, appellant contends the trial court erred in denying his motion to suppress oral statements made by appellant at the Collin County Jail because the officers did not have probable cause or an arrest warrant to allow them to question him in custody. Appellant does not specify which oral statements at the jail he believes should have been suppressed. We believe there are three separate instances where appellant made oral statements material to this case while at the jail. The first instance was when appellant first arrived at the jail and told Officers McKee and Chambers that he had killed his wife. The second instance was when appellant had been instructed to enter the fast track area within the jail and repeated to Sergeant Rucker that he had killed his wife. The third instance was when appellant had been read his Miranda warnings and was interviewed on video tape by Officer Cundiff. To assess the admissibility of these statements, we must determine whether appellant was in custody at the time the statement was made and, if so, whether such custody was valid. We must also determine whether he had been informed of his rights prior to making any custodial statements. A bifurcated standard of review is applied to a trial court's ruling on a motion to suppress evidence. This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). A trial court is the sole trier of fact, the judge of witness credibility, and the determiner of the weight given to witness testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). When a trial court rules on a motion to suppress evidence, its application of the law of search and seizure is reviewed de novo. Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000). A trial court's determinations of reasonable suspicion and probable cause are reviewed de novo. Ornelas v. United States, 517 U.S. 690, 696-99, (1996); accord Guzman, 955 S.W.2d at 87. In reviewing a warrantless arrest to determine the existence of probable cause, we look to the facts known to the officer at the time of the arrest. Amores v. State, 816 S.W.2d 407, 415 (Tex.Crim.App. 1991). It is not necessary for an officer to have first-hand knowledge of an offense. See Astran v. State, 799 S.W.2d 761, 763 (Tex.Crim.App. 1990). In Texas, the limited circumstances where warrantless arrests are permitted are exclusively authorized by statute. See Tex. Code Crim. Proc. Ann. art. 14.03 (Vernon Supp. 2004-2005). A peace officer may arrest without a warrant under article 14.03(a)(4) of the Texas Code of Criminal Procedure if the officer has probable cause to believe the following: (1) the suspect has committed an assault; (2) the victim of the assault is a member of the suspect's family or household; and (3) the assault resulted in bodily injury to the victim. Tex. Code Crim. Proc. Ann. art. 14.03(a)(4) (Vernon Supp. 2004-05). A warrantless arrest pursuant to article 14.03(a)(4) does not require probable cause to believe there is a danger of further bodily injury to the victim. Randolph v. State, 152 S.W.3d 764 (Tex.App.-Dallas 2004). An admission that a person has shot another can furnish probable cause to believe that person has committed an offense. See Ruth v. State, 645 S.W.2d 432, 436 (Tex.Crim.App. 1979); see also Dowthitt v. State, 931 S.W.2d 244, 256 (Tex.Crim.App. 1996). Article 15.22 of the Code of Criminal Procedure provides that "[a] person is arrested when he has been actually placed under restraint or taken into custody. . . ." Tex. Code Crim. Proc. Ann. art. 15.22 (Vernon 1977). An "arrest" occurs "when a person's liberty of movement is successfully restricted or restrained, whether this is achieved by an officer's physical force or the suspect's submission to the officer's authority." Medford, 13 S.W.3d 769, 773 (Tex.Crim.App. 2000). In this case, appellant's first admission that he had killed his wife, made to Officers McKee and Chambers upon first arriving at the Collin County Jail, was clearly made prior to appellant being detained or arrested. Appellant was not in custody at that time, and this admission appears to have been made freely and voluntarily. We conclude that the first admission was properly admitted at trial. Upon appellant making the first admission and after hearing appellant's friend, Dale King, state that appellant had told him appellant had killed his wife, the officers on duty at the jail had probable cause to arrest appellant. Because appellant's admission indicated (1) appellant had committed an assault; (2) the victim of the assault was a member of appellant's family or household; and (3) the assault resulted in bodily injury to the victim, we conclude appellant could have been arrested without warrant under Texas Code of Criminal Procedure article 14.03(a)(4). From the point appellant agreed to enter the fast track area at the jail, beyond a door that he could not unlock, we believe appellant was under arrest and entitled to receive Miranda warnings. Because appellant was not given Miranda warnings until after he had made his second admission to Sergeant Rucker, we conclude that the second admission should have been suppressed. We do not agree with the State that appellant has only claimed error as a violation of the Texas Code of Criminal Procedure. We believe the error is constitutional error and, accordingly, assess it under rule 44.2(a) of the Texas Rules of Appellate Procedure. That is, unless we determine beyond a reasonable doubt that the error did not contribute to the conviction or punishment, we must reverse the judgment. Tex.R.App.P. 44.2(a). We note that the second admission was merely a restatement of the admission made by appellant upon first arriving at the jail. Additionally, appellant's friend, Dale King, also testified that appellant had admitted to killing his wife. Appellant's admission to Sergeant Rucker did not provide any additional evidence not already obtained by the police at that point. Because we determine beyond a reasonable doubt that the admission of appellant's statements to Officer Rucker at the jail did not contribute to the judgment or punishment in this case, we conclude the error was harmless. Appellant's third admission at the Collin County Jail was in the videotaped statement made by appellant to Officer Cundiff. The record reflects that appellant received his Miranda warnings prior to making this statement. Because we have concluded that appellant was validly arrested based on probable cause arising from his own admissions to killing his wife, we conclude that the statements made by appellant subsequent to receiving his Miranda warnings were properly admitted. We overrule appellant's eleventh point.Legal and Factual Sufficiency
In points of error one through four, appellant contends that the state failed to provide legally and factually sufficient evidence that appellant intentionally or knowingly murdered Debbie Dunn. In points of error five and six, appellant contends that the state failed to provide legally and factually sufficient evidence that appellant intended to cause serious bodily injury to Debbie Dunn. In point of error ten, appellant contends that the evidence is factually insufficient to support the jury's finding that the appellant failed to prove he killed his wife under the influence of sudden passion. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The jury determines witness credibility, the weight to be accorded to witness testimony, and conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). All evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). In reviewing the factual sufficiency of the evidence, we must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W. 3d 477, 484 (Tex.Crim.App. 2004). In performing this review, we give due deference to the fact finder's credibility determinations. Zuniga, 144 S.W.3d at 484-85; Clewis v. State, 922 S.W.2d 126, 136 (Tex.Crim.App. 1996). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85. Evidence is also insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some, or none of the testimony presented. See Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. §§ 19.02(b) (Vernon 2003). At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). "Adequate cause" means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Tex. Pen. Code Ann. § 19.02(a)(1) (Vernon 2003). "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed, which passion arises at the time of the offense and is not solely the result of former provocation. Tex. Pen. Code Ann. § 19.02(a)(2) (Vernon 2003). If the defendant proves the issue of sudden passion in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree. Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003). A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. The jury heard testimony in this case that appellant admitted he intended to kill Debbie Dunn and had thought about killing her before. They also heard testimony that appellant shot her in the head twice, then held a pillow over her head to muffle a third shot into her head. Appellant's handwritten statement was entered into evidence in which he admits to shooting his wife and states that he discussed divorce with his wife "for a while" before he shot her. Appellant argues that evidence of his depressed state of mind should have lead the jury to conclude he did not act intentionally or knowingly. Viewing the evidence in the light most favorable to the judgment, we believe a rational trier of fact could have reasonably found from the evidence that appellant acted with some deliberation in killing his wife. Additionally, the jury could have rejected, as unpersuasive, testimony of any diminished capacity to form the required mental state due to appellant's alleged depression. We conclude that the evidence was legally sufficient for a rational trier of fact to find that appellant intentionally or knowingly caused the death of Debbie Dunn, or intended to cause serious bodily injury and commited an act clearly dangerous to human life that caused the death of Debbie Dunn. Applying a neutral review of the evidence, both supporting and against the jury's findings with respect to appellant's culpable mental state, we conclude that the evidence supporting the verdict, considered by itself, was not too weak to support the finding of guilt beyond a reasonable doubt. Nor was the contrary evidence so strong that the beyond a reasonable doubt standard could not have been met. We conclude that the evidence was factually sufficient for the jury to have found that appellant acted intentionally or knowingly in causing Debbie Dunn's death or intended to cause her serious bodily injury and committed an act clearly dangerous to human life causing her death. We overrule appellants first through sixth points of error. With respect to point ten, the jury heard testimony that appellant took his son to a fast food restaurant after killing his wife, prior to driving to Dale King's home. The jury also heard testimony that appellant was acting calmly when he turned himself in and when he was interviewed by Officer Cundiff. Additionally, the jury heard testimony from the Dallas Morning News reporter that appellant showed no remorse for killing his wife. The jury could have found this evidence inconsistent with an act of sudden passion. Appellant's own written statement concedes that appellant and Debbie Dunn discussed divorce "for a while." One witness testified that Debbie Dunn sounded "extremely strange" on the telephone approximately 45 minutes before appellant turned himself in at the Collin County jail, which the jury could have interepreted as indicating a more drawn out sequence of events leading up to the murder. Appellant stated to King that Debbie Dunn said to appellant, "Please don't do this," and "This isn't the way to solve this," further supporting an inference by the jury that appellant's acts were not a result of sudden passion. Appellant presented evidence that he had been depressed over the death of his ex-wife and injury to his son. He presented evidence that he had been facing financial difficulties and difficulties with Debbie Dunn's daughter. Appellant also presented testimony of a clinical psychologist who testified that in her opinion, appellant's act of shooting Debbie Dunn arose after a series of "extreme stressors and a very strained and difficult relationship" between appellant and Dunn. As the fact finder in the case, the jury could have found this testimony unpersuasive as proof of adequate cause for a person of ordinary temper to kill his wife out of sudden passion. We conclude that the evidence is legally and factually sufficient for the jury to have rejected that appellant acted under sudden passion in murdering Debbie Dunn. We overrule appellant's tenth point of error. Commenting on Weight of the Evidence In point of error number seven, appellant contends the trial court erred by commenting on the weight of the evidence. To assess appellant's complaint, we review the context of the exchanges complained of by appellant. The first exchange occurred during voir dire. Appellant's counsel had engaged in a long dialogue with the venire, presenting specific fact scenarios and asking the panel how they would rule in those situations:Ms. Barbieri: (during voir dire) Who here is familiar with that case?The Court: Let's take about a fifteen minute recess. The trial judge interrupted counsel and ordered a break so that a hearing could be held outside of the presence of the jury with respect to the appropriateness of counsel's questions. In the second exchange, the trial judge was responding to the State's objection that appellant's counsel had gone beyond the scope of questioning allowed by the judge for the witness, a reporter for the Dallas Morning News who had moved to quash her subpoena to testify in the case. The trial judge overruled the motion but agreed to limit questioning to the reporter's interview of appellant for the newspaper by stating: The Court: I have a narrow rule on this witness. In the third exchange, appellant's counsel attempted to ask a witness about statements made by the witness to police:
The Court: Again, counsel, if you will limit it to a relevant time, I'll be glad to hear it.
Ms. Crowder: Well, your Honor, this is a prior statement from a witness.
The Court: That doesn't make it admissible. It has to follow the rules of evidence.
Ms. Crowder: Your Honor, I'm questioning this witness based on his statement.
The Court: A statement doesn't make it admissible. It has to meet the rules of evidence.The State objected as to relevance and hearsay; however, the trial judge indicated he would allow the question if it were limited to a specific timeframe. The judge simply pointed out to appellant's counsel that the rules of evidence pertaining to admissibility of the witness's statement must be met. In the fourth exchange, the trial judge commented, but did not rule, in response to the State's objection to a repetitive question:
The Court: I don't know where you're going. It probably is repetitive unless you have some other issue you want to ask about.The record reflects that appellant's counsel had previously asked the witness how many times she had testified as an expert witness and repeated the question here. The State argues that appellant did not object to the court's comments in any of the exchanges complained of and has waived the issue. The State also contends that appellant has not adequately briefed this issue and the examples provided do not, in fact, represent comments on the weight of the evidence. We agree that none of the judge's statements cited by appellant were comments on the weight of the evidence or remarks calculated to convey to the jury his opinion of the case. We conclude the judge's comments were not reasonably calculated to prejudice the defendant's rights or benefit the State. We overrule appellant's seventh point.