Opinion
No. 12-05-00383-CR
Opinion delivered August 16, 2006. DO NOT PUBLISH.
Appeal from the 173rd Judicial District Court of Henderson County, Texas.
Panel consisted of WORTHEN, C.J. and GRIFFITH, J.
MEMORANDUM OPINION
Appellant Penny Gail Fox appeals her murder conviction for which she was sentenced to fifty years of imprisonment. In one issue on appeal, Appellant challenges the trial court's overruling of her motion to suppress her recorded statement. We affirm.
Background
Appellant lived in Payne Springs, Texas, with her husband, James Fox (Fox), her two children, and her mother-in-law, Carolyn Sue Fox. On the evening of November 20, 2004, Fox called 9-1-1, and reported that he and Appellant had arrived home to find the front door "cracked" and his mother lying dead on the floor. She had been beaten to death. A search of the house revealed a general "ransacking" of the home, but nothing was missing. An investigation ensued. Nine days later, Fox confessed to beating his mother with a baseball bat, then staging the house to make it appear as though someone had broken in and killed her. In his confession, Fox implicated Appellant. After hearing a portion of her husband's confession implicating her in the murder, Appellant made a recorded confession. She was subsequently arrested for murder and placed in the Henderson County jail. Prior to her trial, Appellant made a motion to suppress her taped confession. The trial court held a hearing on July 25, 2005 to consider her motion. At the hearing, Ray Nutt, an investigator for the Henderson County Sheriff's Department, testified that he met with Appellant and her husband on November 20 following the reported murder of Carolyn Fox. On November 21 and 22, he took statements from Appellant. He then asked if Appellant and Fox were willing to take polygraph examinations to eliminate them from suspicion. They agreed to the examinations, and Nutt scheduled them for November 29. At 9:00 on the morning of November 29, Appellant submitted to a polygraph examination. The polygraph examiner told Nutt that Appellant's polygraph showed some deception. Nutt gave Appellant her Miranda warnings and told her that she had the right to terminate the interview at any time. He asked her if she understood her rights and she said that she did. Fox then took his polygraph examination while Appellant sat in Nutt's office. During this time, Appellant made no incriminating statements. After Fox finished his exam, the polygraph examiner called Nutt and told him that Fox had also shown deception. At that point, Nutt left Appellant in his office with Lieutenant Kay Langford while he went to speak with Fox. Within minutes, Fox gave a recorded statement, confessing to beating his mother, but also implicating Appellant in the murder. Nutt returned to his office and told Appellant that Fox had implicated her in the murder. Appellant did not believe him, so he played one sentence from Fox's confession where Fox could be heard blaming Appellant for the murder. Appellant then "went to talking." Nutt stopped her and "tried to get her to quieten and calm down." She complied with Nutt's request to stop talking and wait. Nutt then set up a tape recorder and recorded her Miranda warnings and her ensuing statement. In relevant part, the transcript from Appellant's statement was as follows:INV. NUTT: Now I'm gonna read you your rights. You have the right to remain silent and not make any statement at all, and any statement you make may be used against you at your trial. You understand that?
APPELLANT: Yes.
INV. NUTT: And I have read you your rights once before today, haven't I?
APPELLANT: Yes.
INV. NUTT: Any statement you make may be used as evidence against you in court. You understand that?
APPELLANT: Yes.
INV. NUTT: You have the right to have a lawyer present to advise you prior to and during any questions. You understand that?
APPELLANT: Yes.
INV. NUTT: If you're unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questions. You understand that?
APPELLANT: Yes.
INV. NUTT: You understand that you can terminate the interview at any time.
APPELLANT: Yes.
INV. NUTT: Now after hearing those, do you knowingly and intelligently and voluntarily waive your rights to remain silent and your rights to an attorney and want to talk to us?
APPELLANT: I don't know.
INV. NUTT: I want to hear what you got to say if that's what you want to do.
APPELLANT: Yes, Sir. What can it matter?
LT. LANGFORD: We need to hear your side.
APPELLANT: He . . he taped up the bat.
INV. NUTT: Okay, listen to me. Do you waive your rights?
APPELLANT: I don't know. I'm scared.
INV. NUTT: I understand you being scared.
LT. LANGFORD: Do you understand what [Investigator Nutt] read to you about your rights?
APPELLANT: Yes, I understand.
LT. LANGFORD: Okay, do you want to talk to us?
APPELLANT: Yes.
LT. LANGFORD: What?
APPELLANT: Yes.Appellant said that they had discussed killing Carolyn Fox before that day because she was "mean." On November 20, Appellant sent her children to her mother's house to spend the night. Appellant said that Fox wrapped a baseball bat with plastic bags. Late that afternoon, as Carolyn was looking at a magazine with Fox at the kitchen counter, Appellant approached her from behind and hit her in the head with the bat. At a point while Carolyn Fox was still alive, Appellant said that emotionally, she could no longer continue hitting her so she left the room. Fox picked up the bat and continued to beat his mother until she was dead. After Carolyn Fox was dead, Fox and Appellant dumped the bat in woods near their home, went to Wal-Mart and purchased Motrin, went bowling, then drove back to Wal-Mart and bought milk, cat food, and Dr. Pepper before returning to their home to report the crime. At the conclusion of the hearing on the motion to suppress, the court found that Appellant
was not under any physical or mental impairment, nor was she under any kind of undue physical stress, such as fatigue or hunger or lack of sleep under these circumstances. The court finds that [Appellant] indicated that she understood the rights that had been read to her, and that she indicated herself that she wished to thereafter to give this statement. And so the court finds that the statement was knowingly and freely and voluntarily and intelligently made, and complies in every respect with Article 38.22 of the Code of Criminal Procedure. And so the motion to suppress is overruled.Appellant pleaded "guilty" at trial. A jury heard evidence and argument at punishment and assessed fifty years of imprisonment. Appellant filed a motion for new trial, which was overruled, and this appeal followed.