No. 05-06-01709-CR
Opinion Filed July 10, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-40682-U.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
A jury convicted Olin Joe Gonzales of capital murder and assessed punishment at life in prison. On appeal, appellant argues that his statements were involuntary and the trial court erred by not suppressing them; the evidence is factually insufficient to support the conviction; and he was deprived of a speedy trial. In a final point, he argues that he is entitled to two additional days of back-time credit. The State concedes appellant's final point. We modify the judgment and affirm as modified.
Voluntariness of Statements
In his first issue, appellant contends that the trial court erred by overruling his motion to suppress two statements he gave during custodial interrogation. Appellant did not request a hearing or ruling on the motion to suppress. He advised the trial court after voir dire but before testimony began that he would request a jury instruction on the voluntariness of the statements, and that his strategy was to present evidence of voluntariness to the jury and not to request a pretrial hearing on the voluntariness issue. Statements of a person accused of a crime "may be used in evidence against him if it appears that the same w[ere] freely and voluntarily made without compulsion or persuasion. . . ." Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). Whenever voluntariness of a statement becomes an issue, section 6 of article 38.22 requires the trial court to conduct a hearing to determine whether the statement is admissible. The State bears the burden to prove voluntariness by a preponderance of the evidence. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995). The trial court determines whether a statement was given voluntarily by looking at the totality of the circumstances. Delao v. State, 235 S.W.3d 235, 239 n. 9 (Tex.Crim.App. 2007). In light of appellant's representations, the trial court held a hearing pursuant to section 6 of article 38.22. The State offered the testimony of the lead detective at the hearing. Appellant did not testify, offer evidence, or conduct cross-examination during the hearing. The trial court ruled that the statements were admissible and subsequently entered findings of fact and conclusions of law. In reviewing a trial court's ruling on voluntariness, we ordinarily look only to the evidence before the trial court at the time the court made its ruling. See Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996); Kearney v. State, 181 S.W.3d 438, 446 (Tex.App.-Waco 2005, pet. ref'd). In this case, however, appellant did not present any evidence of involuntariness at the hearing. Instead, appellant objected when the statements were offered at trial, and testified that the statements were involuntary. When the voluntariness issue is re-litigated at trial, we may consider evidence adduced at trial in reviewing the trial court's ruling. See Rachal, 917 S.W.2d at 809; Kearney, 181 S.W.3d at 446-47. Here, the voluntariness issue was re-litigated by the parties and the issue was submitted to the jury. Accordingly, we will consider evidence adduced at trial in examining whether the trial court abused its discretion by finding that appellant's statements were voluntary. A statement is involuntary if the record establishes "official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado, 912 S.W.2d at 211; see State v. Terrazas, 4 S.W.3d 720, 726-27 (Tex.Crim.App. 1999). Factors a court considers in determining whether a statement was involuntary include length of detention, prolonged interrogation, denial of access to communications or family, refusal of a defendant's request for a lawyer or family, and physical brutality. Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App. 1985), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998). The evidence showed that on April 5, 2005, the Mesquite Police Department arrested appellant for the capital murder of Robert Jones, an 84-year-old widower, on March 31, 2005. Appellant signed two statements during custodial interrogation. In the first statement, appellant said he assisted someone else in the murder. In the second statement, appellant said he alone murdered Jones during the course of a burglary and that he did not intend for Jones to be hurt. He gave a specific, detailed account of the murder in the second statement. Appellant contends that his statements were involuntary because he was kept in the interview room for approximately four hours and there is no indication he ever left that room, was allowed to go to the bathroom, or was given food or water. He also contends that no one explained the range of punishment for capital murder and that he was suffering from sleep deprivation. He argues that he was harmed because the only evidence connecting him to the crime were his statements. Appellant does not dispute that Detective Don Phillips of the Mesquite Police Department read the Miranda warnings to him or that he initialed each of the warnings and said he understood them. Detective Phillips testified that the Miranda warnings were read to appellant three times-once when appellant was arrested, and again before each statement. He testified that he gave appellant the option of writing the statement himself or dictating his statement, and appellant chose to dictate his statement to Detective Phillips. Phillips testified that he wrote appellant's words verbatim, read the completed statements to him, and gave appellant an opportunity to make changes. Appellant signed both statements, adding the following to the end of his second statement in his own handwriting: "Inv. Phillips read it to me and it is true. I do not wish to make any changes." Phillips also testified that he did not coerce appellant, promise him anything, or abuse him. He said appellant was alert, did not fall asleep, and never asked for an attorney. Conversely, appellant testified at trial that Detective Phillips screamed at him and told him he was going to get the death penalty. Although he initially testified that Phillips grabbed his arms and punched his veins, he later said Phillips did not punch his veins but asked to see his arm and touched his protruding veins. He said Phillips wanted him to write a statement that made it look like another suspect committed the murder. He also said Phillips told him that Phillips was recording the interview and that the recording would control over any statement appellant wrote. Appellant testified that he was scared, exhausted, tired, and worried. He said he fell asleep when the detective left the room after appellant signed the first statement. He also said that Phillips came back into the room with his partner and had a second statement already prepared for appellant's signature in which appellant confessed to committing the murder alone. He said he signed the statement because Phillips told him it would be used to convict someone else. A four-hour interrogation is not unreasonably long. See Smith v. State, 779 S.W.2d 417, 428 (Tex.Crim.App. 1989) (holding that eight hours of questioning without food did not render confession involuntary); Fineron v. State, 201 S.W.3d 361, 365-66 (Tex.App.-El Paso 2006, no pet.); Vasquez v. State, 179 S.W.3d 646, 655-57 (Tex.App.-Austin 2005), aff'd, 225 S.W.3d 541 (2007). And appellant's testimony that he was exhausted and fell asleep during the interrogation was contradicted by Detective Phillips's testimony. When the evidence is conflicting, we defer to the trial court. See Sells v. State, 121 S.W.3d 748, 767 (Tex.Crim.App. 2003). Appellant did not ask for an attorney and stated he understood his Miranda warnings on three different occasions. There is no evidence that Phillips physically abused appellant or that appellant requested but was denied food, water, or bathroom breaks. See Bell v. State, 169 S.W.3d 384, 392 (Tex.App.-Fort Worth 2005, pet. ref'd). Viewing the totality of the circumstances in the light most favorable to the trial court's ruling, we conclude that the trial court did not abuse its discretion by finding that appellant voluntarily gave the statements. We resolve appellant's first issue against him. Factual Sufficiency of the Evidence
In his second issue, appellant argues that the evidence is factually insufficient to support the conviction when the evidence is considered without the statements. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light and ask whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, No. PD-134-07, 2008 WL 2512832 at *4 (Tex.Crim.App. Jun. 25, 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). We may reverse only if the verdict is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Grotti, 2008 WL 2512832 at *4. The record must show some objective basis for concluding that the great weight and preponderance of the evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417. Because our analysis involves a neutral review of all of the evidence, we must consider appellant's statements. The evidence showed that at one time appellant lived at Care Center Ministries and supervised a lawn crew for the Center. His responsibilities included taking care of Jones's lawn and the lawn of one of Jones's neighbors. About two years before the murder, appellant moved and was no longer the crew leader in charge of those lawns. The new crew leader testified that he saw appellant back in Jones's neighborhood within a day or two of the murder. He thought appellant was trying to steal his business, but, when he found out that Jones had been murdered, he reported the incident to police. Jones's neighbor testified that appellant showed up at his door about a week or two before the murder asking for money. He thought it was very unusual and mentioned it to the police. The evidence also showed that appellant pawned a man's gold wedding ring within hours after the murder, Jones's gold wedding ring was missing from his finger, his family never found the ring in the house, Jones was never known to take the ring off, and the pawned ring looked similar to Jones's wedding ring. Police also recovered Jones's address book from appellant's truck. In addition to the statements appellant gave to the police in which he confessed to the crime, he confessed to his cell mate. On the other hand, appellant testified that he purchased the wedding ring from someone else who had been charged initially with the crime, and that there were no fingerprints or DNA evidence to link appellant to the crime. Viewing the evidence in a neutral light, we conclude that it is factually sufficient to support the conviction. We resolve appellant's second issue against him. Speedy Trial
In his third issue, appellant argues that he was denied a speedy trial as guaranteed by the United States and Texas Constitutions. See U. S. Const. amend. VI; Tex. Const. art. I, § 10; Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). Although a defendant is not required to assert his right to a speedy trial at any particular time, he cannot wait until he appeals his conviction and raise it for the first time on appeal. See Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App. 2003) (in reviewing speedy trial claim, appellate court errs by considering arguments made for first time on appeal); Fuller v. State, 224 S.W.3d 823, 826-27 (Tex.App.-Texarkana 2007, no pet.). Because appellant did not raise his speedy trial claim prior to trial, at trial, or in a post-judgment motion, he did not preserve this issue for our review. See Fuller, 224 S.W.3d at 826-27. We resolve appellant's third issue against him. Back-Time Credit
In his fourth issue, appellant argues that he was not given the proper amount of back-time credit. The State concedes that appellant is entitled to an additional two days credit. Accordingly, we sustain appellant's fourth issue and modify the judgment to reflect back-time credit from "4/5/2005 to11/17/2006." See Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd) (court has authority to reform judgment when it has information necessary to do so). Conclusion
We modify the judgment and affirm as modified.