Opinion
No. 11-03-00222-CR
January 6, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
Appeal from Jones County.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
Opinion
A jury convicted appellant, Larry Joe Jordan, of first degree murder and assessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice. The jury also imposed a fine of $5,000. Appellant brings six issues on appeal attacking his conviction. Most of his issues concern two written statements wherein appellant confessed to committing the alleged crime. We affirm. The indictment charged appellant with intentionally or knowingly causing the death of Lenore Ann Ewing by blunt impact to the head and by stabbing with a knife. The victim's 11-year-old daughter testified that she last saw her mother on the morning of February 26, 2001. The victim told her daughter that morning that she would be having lunch with someone named "Larry." A calendar which the victim maintained also reflected her intention of having lunch on that day with someone named "Larry." Detectives of the Abilene Police Department initiated a missing person investigation on February 26, 2001, when the victim did not return to her home. On March 2, 2001, a passerby discovered the victim's body near Lake Fort Phantom. An autopsy of the body revealed two blunt impact injuries to the victim's head and eight stab wounds to the victim's back. The blunt force trauma injuries resulted in fractures of the victim's forehead and skull. The stab wounds varied in depth between two and ten inches. The victim's heart, stomach, and one of her lungs were pierced as a result of the stabbing. The pathologist who performed the autopsy determined that both the stab wounds and the blunt force trauma to the head caused the victim's death. The police identified three possible suspects at the outset of their investigation of the murder. The three suspects were Don Hopper, Steve Johnson, and an unknown person with whom the victim had recently been corresponding over the internet. Hopper and the victim had recently broken up from a relationship prior to her murder. The victim continued to live in Hopper's residence after the break up. Hopper and the victim had a fight on the night before she disappeared about her continuing to reside in his residence. Hopper also accused the victim of stealing money from his auto service business. Detective John Reid testified that the Abilene Police Department conducted an intensive investigation of Hopper and that no evidence linking him to the murder was discovered. Detective Reid noted that Hopper had alibi witnesses that were able to vouch for his activities on February 26, 2001. Steve Johnson was an employee and close friend of Hopper. Johnson made some statements during the investigation of the murder which indicated that he might have been involved in the murder. However, the police did not find any evidence linking Johnson to the murder other than his statements. The third suspect which the police initially investigated identified himself as "Lawrence Price" in his internet correspondence with the victim. The victim and "Internet Larry" had apparently met for a face-to-face meeting on at least one occasion. Also, the name "Larry" appeared on the victim's calendar 9 times. The police were not able to either locate or identify Internet Larry. In the e-mails that he sent to the victim, Internet Larry claimed to be an engineer working in San Angelo. The police determined that Internet Larry used an "anonymous" e-mail address when he corresponded with the victim. The police were also able to determine that Internet Larry used a computer at the San Angelo Public Library for communicating with the victim. Detective Reid testified that the police were sure that appellant was not the person posing as Internet Larry because of appellant's limited language skills. Appellant became a suspect in the case in July 2002. Appellant's wife, Cynthia Ann Biddy, informed law enforcement officers that appellant had made some statements to her indicating his involvement in the victim's murder. Biddy testified that appellant made the following comment during a physical altercation between the two of them: "Bitch, I'm going to screw you like the girl at the lake." Detective Reid spoke with appellant on July 12, 2002, at the Jones County Jail. Detective Reid obtained the following written statement from appellant during the early afternoon hours of July 12, 2002:
I met [the victim] at the hideaway club and she came to my real mothers house in Putnam. We slept together one time there at Putnam.One night [the victim] called me she was real scared, her husband was breaking things. I could hear him being loud and things breaking. The next morning [the victim] called and wanted to meet me at the restaurant on [Interstate 20]. I met her and she got into my truck. We talked and then drove to the lake. We parked and got out. We sat on the tailgate and talked. I told her that I couldn't see her anymore. She got mad and hit me with a baseball bat. She hit me on the shoulder and kept hitting me. She knocked me down and got on top of me. I couldn't do anything, I was scared. I grabbed a rock with both hands and hit her on the head twice. She fell off of me and I got up. I blacked out, and I remember being on my knees beside her praying to God. I got up and went to my step parents house in my truck. Appellant provided the police with a second statement several hours later on July 12, 2002. Appellant stated as follows in the second statement:
When I talked with the detectives earlier, I left some things out. I asked Clay Coffey to call them so I could talk with them some more. When we went to the lake we turned off FM600 at a place where a concrete ramp goes up a dam. I also stabbed her about 10 times in her back with a knife I had in the back of my pickup. I did this to get her off of me. I tried to help her after it was over, but she was already dead. I covered her up and left.
I'm sorry this happened I was scared. I would have called for help but I was scared.Appellant asserts in his first issue that the trial court erred in denying his motion to suppress both of his written statements. He contends that his statements were not voluntarily given as a result of his diminished mental capacity. Dr. James Crowley, M.D., a psychiatrist who evaluated appellant, assessed appellant's intellectual status as "Borderline Intellectual Functioning" which he defined as falling between low normal intelligence and mild mental retardation. Dr. Crowley estimated appellant's IQ to be in the range of 65 to 75. In reviewing a trial court's ruling on a motion to suppress, appellate courts must give great deference to the trial court's findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App. 1997). Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court's ruling. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Cr.App. 2000). We also give deference to the trial court's rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court's actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844 (Tex.App.-Eastland 1999, no pet'n). The trial court conducted a pretrial hearing on appellant's motion to suppress the written statements. With regard to the first statement, Detective Reid testified at the hearing that he read each of the " Miranda" warnings to appellant and that appellant understood them prior to his statement being taken. The statement indicates that Detective Reid gave these warnings to appellant at 11:30 a.m. on July 12, 2002. Appellant signed the completed statement at 2:00 p.m. on July 12, 2002. After Detective Reid took the first statement, he received a call from Clay Coffey, a deputy with the Jones County Sheriff's Department, advising him that appellant wanted to speak with him again. Appellant's second statement indicates that Detective Reid gave appellant another set of warnings at 11:22 p.m. on July 12, 2002. Appellant signed the second statement at 12:18 a.m. on July 13, 2002. Appellant informed Detective Reid that he could not read or write. Detective Reid testified that he gave extra attention to making sure appellant understood the warnings listed on the statements as a result of appellant's reading limitations. Detective Reid transcribed both of appellant's statements and Deputy Coffey read the statements back to appellant prior to him signing them. Detective Reid denied the use of any promises, threats, or coercion with respect to the taking of either of the statements. Detective James David Atkins of the Abilene Police Department was also present when both of the statements were obtained from appellant. Detective Atkins testified that appellant told the officers that he understood the warnings which were read to him. Detective Atkins also testified that appellant took a longer time to sign his signature on the statements than the average person. Detective Atkins testified that appellant exhibited a full range of emotions when the statements were obtained ranging from calm to angry and crying. Deputy Coffey testified that he went over the warnings listed in the statements when he read the statements back to appellant each time and that appellant understood the warnings. With respect to the second statement, Deputy Coffey testified that appellant informed him that he wanted to speak again with Detective Reid and Detective Atkins because "he knew there was a knife involved." Prior to the receipt of evidence at trial, the trial court denied appellant's motion to suppress the two written statements. In determining whether a trial court's decision on a motion to suppress is supported by the record, we generally only consider evidence adduced at the suppression hearing because the court's ruling was based on it rather than evidence presented later at trial. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Cr.App.) cert. den'd, 519 U.S. 1043 (1996); Hardesty v. State, 667 S.W.2d 130, 133 (Tex.Cr.App. 1984). This general rule is inapplicable, however, when the suppression issue is raised during the trial on the merits. Rachal v. State, supra at 809; Hardesty v. State, supra at 133. In this instance, the attorneys elicited a great deal of testimony at trial about the circumstances surrounding the taking of the two statements. Accordingly, we also review the evidence offered at trial in our consideration of the trial court's denial of the motion to suppress. In addition to the matters to which he testified at the suppression hearing, Detective Reid testified that the task of taking the two statements from appellant was very difficult. He attributed this difficulty to appellant being emotional and going off on tangents during the questioning. Detec-tive Reid confronted appellant during the interview process when appellant made statements that did not appear to be true in an effort to redirect his focus. Detective Reid raised his voice at times during the interview process and slapped the table on one occasion. With respect to the warnings given to appellant, Detective Reid recalled that he explained the word "coercion" to appellant because he did not know what it meant. Article 38.21 of the Code of Criminal Procedure provides that a statement of an accused may be used in evidence against him if it appears that it was freely and voluntarily made without compulsion or persuasion. TEX. CODE CRIM. PRO. ANN. art. 38.21 (Vernon 1979); Penry v. State, 903 S.W.2d 715, 744 (Tex.Cr.App.), cert. den'd, 516 U.S. 977 (1995). The determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition. Penry v. State, supra at 744. While not alone determinative, mental impairment is a factor in ascertaining the voluntariness of a confession. Penry v. State, supra at 744; Bizzarri v. State, 492 S.W.2d 944, 946 (Tex.Cr.App. 1973). In essence, the question is whether the accused's mental impairment is so severe that he was incapable of understanding the meaning and effect of his statement. See Casias v. State, 452 S.W.2d 483, 488 (Tex.Cr.App. 1970). The determination of whether appellant voluntarily gave the two written statements is a mixed question of law and fact. Since this question involves the credibility and demeanor of the witnesses, we review the record applying an abuse of discretion standard of review. Guzman v. State, supra at 89. The officers that obtained the statements from appellant testified that appellant understood the warnings which were given to him and that he was not forced or intimidated into giving the statements. While Dr. Crowley testified that appellant had a lower than average level of intelligence, he did not testify that appellant was incapable of understanding the warnings or making a statement of his own accord. The record supports the trial court's determination that appellant's statements were voluntarily given. Appellant's first issue is overruled. Appellant's fifth and sixth issues also concern the voluntariness of his written statements. The court's charge instructed the jury to disregard appellant's statements if it did not find beyond a reasonable doubt that appellant made the statements voluntarily. See TEX. CODE CRIM. PRO. ANN. art. 38.22, § 6 (Vernon 1979). In his fifth issue, appellant challenges the legal sufficiency of the evidence supporting the jury's "implicit finding" that appellant voluntarily made the statements. Appellant challenges the factual sufficiency of the evidence supporting this finding in his sixth issue. The Texas Court of Criminal Appeals recently addressed the availability of a challenge to the factual sufficiency of the evidence supporting evidentiary findings in Hanks v. State, 137 S.W.3d 668 (Tex.Cr.App. 2004). Pursuant to TEX. CODE CRIM. PRO. ANN. art. 38.23(a) (Vernon Pamph Supp. 2004-2005), the jury charge in Hanks instructed the jury to disregard any evidence which it determined to have been obtained in violation of law. Hanks v. State, supra at 669. The court recognized in its analysis that a conflict existed in the courts of appeals as to whether a sufficiency-of-the-evidence challenge can be raised with respect to an "admissibility of evidence" issue. Hanks v. State, supra at 671; see Caddell v. State, 123 S.W.3d 722 (Tex.App.-Houston [14th Dist.] 2003, pet'n ref'd); Davy v. State, 67 S.W.3d 382 (Tex.App.-Waco 2001, no pet'n). The court ultimately held that a factual sufficiency challenge to an "admissibility of evidence" issue is not permitted. Hanks v. State, supra at 672. The court determined in reaching its holding that a factual sufficiency review is only appropriate to challenge the sufficiency of the State's proof of the elements of the offense. An issue under Article 38.22, section 6 is also an "admissibility of evidence" issue because it also only affects the jury's determination of the evidence it will consider in determining the accused's guilt. As such, the holding of the Court of Criminal Appeals in Hanks precludes appel-lant's attempt to challenge the factual sufficiency of the evidence relating to the jury's determination of the voluntariness question. Hanks v. State, supra at 672. Appellant's sixth issue is overruled. The court in Caddell held that both legal and factual sufficiency complaints are only appropriate for challenging the evidence relating to the elements of the offense and that they are inappropriate for attacking "admissibility of evidence" issues. Caddell v. State, supra at 726. The Court of Criminal Appeals cited this statement in Caddell with approval in Hanks. Hanks v. State, supra at 671. We agree with the reasoning in Caddell that neither a legal nor factual sufficiency challenge is permitted with respect to an issue which addresses the admissibility of evidence. Appellant's fifth issue challenging the legal sufficiency of the evidence supporting the jury's determination of the voluntariness issue is overruled. In his third and fourth issues, appellant contends that he was not properly warned prior to giving his statements. He bases this contention on the trial testimony of Marlon Smith, Jones County Justice of the Peace. Both of the written statements indicated that Judge Smith gave the following warnings to appellant:
On [July] 12, 2002, at 10:20 o'clock a.m., I was taken before Marlin Smith, a magis-trate of Jones County, Abilene, Texas. At that time, such magistrate informed me of the accusation against me together with all affidavits filed with such accusation; of my right to retain counsel, of my right to remain silent, of my right to have an attorney present during any interview with peace officers or attorneys representing the state, of my right to terminate the interview anytime, of my right to request the appointment of counsel if I am unable to afford counsel, and of my right to have an examining trial. He also informed me that I am not required to make any statement, and any statement made by me may be used against me. He also allowed me reasonable time and opportunity to consult counsel.See TEX. CODE CRIM. PRO. ANN. art. 15.17(a) (Vernon Supp. 2004-2005). Judge Smith testified that he went over the magistrate's warning with appellant in a thorough fashion and that appellant appeared to understand his rights. Judge Smith's brief testimony concluded with the following series of questions asked by defense counsel:
Q: Did you explain to him he had the right to have an attorney present during any questioning?
A: I did, sir.
Q: And you explained to him he had the right to terminate any police interviews at any time?
A: I did, sir.
Q: Did you tell him that any statements that he made could be used for or against him?
A: Yes, sir.
Q: Did you explain to him that he had the right to have an examining trial?
A: Yes, sir.
Q: Did you explain to him that he had the right not to make any statements?
A: Yes, sir.
Q: And you believe he understood those rights?
A: I do, sir.
Q: Judge Smith, what you're telling us today is what you recollect as occurring on July 12, 2002?
A: Yes, sir.(Emphasis added) A warning to a suspect before interrogation that a statement could be used "for or against" him or her is an impropriety that can require that the statement be held inadmissible. Creager v. State, 952 S.W.2d 852, 854 (Tex.Cr.App. 1997); see Article 15.17(a) Article 38.22, section 2(a)(1). Appellant did not request the trial court to either withdraw or strike the previously admitted statements from the record based upon Judge Smith's above-quoted testimony. Appellant sought and obtained an instruction in the court's charge which instructed the jury to disregard appellant's statements if it determined that appellant was not properly warned prior to giving his statements. On appeal, appellant raises the issue concerning the warning that he received by challenging the legal and factual sufficiency of the evidence supporting the jury's "implied finding" that he was properly warned with respect to his statements. The issue instructing the jury to disregard appellant's statements if he was not properly warned is another issue which addresses the admissibility of evidence rather than an element of the offense charged. For the same reasons we have overruled appellant's fifth and sixth issues, we overrule appellant's third and fourth issues challenging the legal and factual sufficiency of the evidence supporting the jury's determination that appellant's statements were properly admitted. In overruling appellant's third and fourth issues, we note that, while appellant challenges the warnings given by Judge Smith, the issue submitted to the jury restricted its inquiry to the warnings given by Detective Reid. The jury's implied finding that Detective Reid properly warned appellant would likely withstand a legal and factual sufficiency challenge based upon the evidence in the record. Moreover, the evidence that appellant was improperly warned is equivocal at best. The written statements themselves recite that Judge Smith gave appellant the proper magistrate's warnings required by Article 15.17(a). Judge Smith's testimony that he informed appellant that his statement could be used "for or against" him occurred in a brief, affirmative response to a series of questions about the warnings he gave appellant. Furthermore, Detective Reid testified that he subsequently gave correct warnings to appellant prior to the taking of each statement. Finally, in his second issue appellant challenges the factual sufficiency of the evidence supporting his conviction. He premises his factual sufficiency challenge on the evidence suggesting the possibility that Hopper and Johnson were responsible for the victim's murder. In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak that the verdict is clearly wrong and manifestly unjust or whether the evidence contrary to the verdict is so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Zuniga v. State, 144 S.W.3d 477 (Tex.Cr.App. 2004). In addition to appellant's confession to committing the victim's murder, there were additional items of evidence which supported the jury's finding of guilt. As previously noted, appellant made statements to others about what he had done to "the girl at the lake." Appellant's birth mother, Gracie Mae Burton, testified that appellant and the victim had spent the night with her on one occasion. Burton also testified that appellant called her on another occasion telling her that he needed an alibi as to his whereabouts. Israel Montez, an acquaintance of appellant, testified that appellant asked him in either late February or early March 2001 to help him look for a knife that he had lost at Lake Fort Phantom. Montez also testified that appellant appeared to have recently been involved in a fight or scuffle based upon scratches on his hands and a bite on his chest. With respect to Hopper, Johnson, and Internet Larry, Detective Reid testified that the police thoroughly investigated their possible connection to the victim's murder. While Hopper had a motive and a history of disagreements with the victim, he had an alibi as to his whereabouts on the date the murder is believed to have occurred. The police were not able to find any evidence linking either Johnson or Internet Larry to the murder. Viewed in a neutral light, the evidence supporting guilt is not so weak as to render the verdict clearly wrong and manifestly unjust. Furthermore, the the evidence contrary to the verdict is not so strong that the beyond-a-reasonable-doubt burden of proof could not have been met. Appellant's second issue is overruled. The judgment of the trial court is affirmed.
The attorneys referred to the third suspect as "Internet Larry" at trial. Given the fact that appellant's first name is also "Larry," we will also refer to the third suspect as "Internet Larry."
Miranda v. Arizona, 384 U.S. 436 (1966).
The statement recites that the following warnings were given to appellant:
I, Larry Joe Jordan, after being duly warned by [Detective Reid], the person to whom this statement is made that: 1) I have the right to remain silent and not make any statement at all, and that any statement I make may be used against me at my trial; 2) any statement I make may be used as evidence against me in court; 3) I have the right to have a lawyer present to advise me prior to and during any questioning; 4) if I am unable to employ a lawyer, I have the right to have a lawyer appointed to advise me prior to and during any questioning; and 5) I have the right to terminate the interview at any time.
See TEX. CODE CRIM. PRO. ANN. art. 38.22, § 2 (Vernon 1979).
Appellant asserts that the jury implicitly found that he voluntarily made the statements based upon its decision to convict him of the alleged offense.
The jury's resolution of an Article 38.23(a) issue is an "evidentiary" finding because it only affects the jury's determination of the evidence it will consider in determining the accused's guilt. Hanks v. State, supra at 671. The Court of Criminal Appeals characterized an Article 38.23(a) issue as an "admissibility of evidence" issue. Hanks v. State, supra at 672.
The court's charge contained the following instruction:
You are instructed that under our law a confession of a Defendant made while he was in jail or in custody of an officer and while under interrogation shall be admissible in evidence if it appears that the same was freely and voluntarily made without compulsion or persuasion. However, before a confession made to officers may be considered voluntary, it must be shown by legal evidence beyond a reasonable doubt that prior to making such statement that the accused has been warned by the person to whom the statement is made, or by a magistrate, that (1) he has the right to remain silent and not make any statement, (2) that anything said by the Defendant will be used against him at trial, (3) that the statement will be used against him in court, (4) that he has the right to terminate the questioning at any time during the interview or questioning, and (5) that he is entitled to the services of an attorney, his own, or, if he is unable to employ one, a court-appointed attorney, to advise him prior to and during any questioning or interrogation.
So, in this case, if you find from the evidence, or if you have a reasonable doubt thereof, that prior to the time the Defendant gave the alleged statement or confession to John Reid, if he did give it, the said John Reid did not warn Defendant in the respects enumerated above, or as to any one of such requirements, then you will wholly disregard the alleged confession or statement and not consider it for any purpose nor any evidence obtained as a result thereof. If, however, you find beyond a reasonable doubt that the aforementioned warning was given the Defendant prior to his having made such statement, if he did make it, still, before you may consider such statement as evidence in this case, you must find from the evidence beyond a reasonable doubt that prior to making such statement, if he did, the Defendant knowingly, intelligently and voluntarily waived the rights hereinbefore set out in the said warning, and unless you so find, or if you have a reasonable doubt thereof, you will not consider the statement or confession for any purpose whatsoever or any evidence obtained as a result of the statement, if any.