McGrew v. State

Full title: MACE McGREW, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourth District, San Antonio

Date published: Apr 12, 2006

No. 4-05-00144-CR (Tex. App. Apr. 12, 2006)

Opinion

No. 4-05-00144-CR

Delivered and Filed: April 12, 2006. DO NOT PUBLISH.

Appeal from the 227th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-8727D, Honorable Philip A. Kazen, Jr., Judge Presiding. Affirmed.

Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.

MEMORANDUM OPINION

Opinion by: SANDEE BRYAN MARION, Justice.

A jury found defendant, Mace McGrew, guilty of aggravated robbery and murder and assessed punishment of forty years' confinement for the aggravated robbery and life imprisonment for the murder. Defendant complains of his conviction in four issues on appeal. We affirm.

SUFFICIENCY OF THE EVIDENCE

In his first and second issues, defendant asserts the evidence is legally and factually insufficient to support his convictions of aggravated robbery and murder. Defendant contends the evidence is insufficient because no physical evidence links him to the crimes, and aside from the "questionable identification" of him by a witness and his statement, no other witness positively identified him as either a party or participant in the crimes. We review the sufficiency of the evidence under the appropriate standards of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999) (same); Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App. 2004) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996) (same). The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App. 1999). During the afternoon of December 23, 2001, Eric Coley, Joseph Duce, and Christopher Freliche went to Blake Johnson's house to "hang out and smoke weed." The group decided to go see one of Blake's acquaintances, Shawn Briseño, to buy more marijuana. Shawn was in the business of selling marijuana to his friends. After purchasing a small amount of marijuana, they dropped Blake off at his house, picked up Dolph Free, and continued to Lester Kyle's apartment. While at Lester's apartment, the group smoked the marijuana they had just bought. Lester questioned the others about where they bought the marijuana, and they told him at the apartment complex across the street. Christopher told Lester that "supposedly . . . there was a lot [of marijuana] inside the house along with money." Lester became curious and made it clear that he wanted "to get the weed . . . for free." He suggested that someone go to Shawn's apartment to determine who was in the apartment and if there was marijuana and money in the apartment. Eric, Christopher, and Dolph went to Shawn's apartment to try to purchase marijuana; however, Shawn did not recognize them and refused to sell to them. The group then went back to Lester's house and reported that they did not see any money, marijuana, or anyone else in the house. Lester mentioned to the group that he did not have a gun, and went into the other room to make a phone call. Shortly thereafter, Kevin Johnson and another male, later identified as defendant, arrived at Lester's apartment. Kevin walked into the apartment and said, "Are we ready to do this?" Eric testified that it was his understanding that Lester, Dewayne Powell, Kevin, and defendant were leaving the apartment to rob Shawn. Joseph testified that he volunteered to drive over to Shawn's apartment and Lester instructed him he was going to knock on the door. After knocking on the door, Shawn answered and Kevin came out of the stairwell and "fired off a round into the door." Joseph ran away from the apartment and at that time saw Lester and another individual running toward the apartment. Immediately prior to the shooting, Shawn, Kimberly Moody, and Kelly O'Connor were asleep in Shawn's apartment. Kelly was asleep on a futon next to the front door. She testified that she was awakened by rumbling noises at the front door and, as she awoke, she saw "flashes of light" and Shawn fly back from the front door. She testified that she heard individuals come into the apartment asking "where's the shit, where's the weed, where's the money." Kimberly, Shawn's live-in girlfriend, was asleep in the bedroom and was also awakened by the noises at the front door. She testified that Shawn was holding the bedroom door shut when two individuals busted through the door. One individual walked towards Shawn and the other walked towards Kimberly. She testified that the man coming towards her was carrying a gun and he was close enough to her that she got a good look at his face. The man grabbed her by the arm and pulled her out of bed and told her "give me the bud and the money." Kimberly began searching for marijuana, but all she could find was "a very small amount of schwag weed, which is not good weed . . . seeds and stems." The men took the "schwag weed" and left Shawn's apartment. Kimberly then realized that Shawn had been shot and Kelly called 911. Officer Stephen May responded to the dispatch call at around 4 a.m. on the morning of December 24, 2001. Officer May testified he could tell the front door had been kicked in and Shawn was suffering from a gunshot wound to the chest. Shawn was pronounced dead at the scene. Additionally, Eric testified that after going to Shawn's apartment, Lester returned to his apartment and threw down a bag and stated "all he got was weed . . . stems and seeds." Eric also testified that Lester told him repeatedly that Kevin "shot him [referring to Shawn]." However, in defendant's statement to the police, he stated that he, Dewayne, Kevin, Lester, and "two white boys," went to an apartment complex. Defendant claims Lester and Kevin went to the apartment, while he and the other individuals waited in the parking lot. Defendant started wondering what was taking so long and began walking toward the apartment, when he heard three or four gunshots. Defendant claims that once he heard the gunshots, everyone started running back to the vehicles. According to defendant, Kevin ran to defendant's car and defendant started driving Kevin home. Defendant asked Kevin what had happened in the apartment, to which Kevin responded, "something went wrong and I had to shoot somebody." On September 19, 2002, Detective Barney Whitson received information that Dewayne, by now an inmate at the Bexar County Jail, had information concerning Shawn's death. Detective Whitson continued his investigation and obtained information on certain individuals that were possibly involved in the case. On October 25, 2002, Kimberly was shown different photograph lineups and picked the defendant out of one of those lineups, identifying him as the armed man that dragged her across Shawn's apartment. To convict defendant as a party, the evidence must show that, at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose. Pesina v. State, 949 S.W.2d 374, 382-83 (Tex.App.-San Antonio 1997, no pet.). This may be done with either direct or circumstantial evidence. Id. at 383. In determining whether a defendant participated in an offense as a party, the court may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App. 1994). Intent may be inferred from circumstantial evidence such as the acts, words, and conduct of the accused. Patrick v. State, 906 S.W.2d 481, 487 (Tex.Crim.App. 1995). Although defendant's version of the facts conflict with other witnesses' testimony, it was the jury's prerogative to draw reasonable inferences from the evidence, and to judge the credibility of the witnesses and the weight to be given their testimony. See Jones v. State, 944 S.W.2d 642, 647-49 (Tex.Crim.App. 1996). After a review of the record, we hold the evidence is legally and factually sufficient to support the jury's verdict.

VOLUNTARINESS OF STATEMENT

In his third issue, defendant asserts the trial court erred in finding his statement was voluntary and in failing to file findings of fact relating to the voluntariness of his statement. Defendant contends he was handcuffed during his interrogation and he felt threatened, and that such circumstances rendered his statement involuntary. A defendant's statement may be used in evidence against him if it appears it was freely andvoluntarily made without compulsion or persuasion. Tex. Crim. Proc. Code Ann. art. 38.21(Vernon 2005). We determine whether a confession is voluntary based on an examination of the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997). To determine whether the circumstances render an accused's statement involuntary, we ultimately must determine whether his will was "overborne" by police coercion. Nenno v. State, 970 S.W.2d 549, 557 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App. 1999). The trial court is the sole judge of the weight and credibility of the evidence, and the court's finding on voluntariness will not be disturbed absent an abuse of discretion. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995). Defendant testified that he was handcuffed to his chair and that the room temperature was cool. Defendant further testified that he felt threatened by Detective Whitson: "I felt like, you know, I don't know, just felt threatened. You know, I just felt I had to cooperate. Either that or be charged with something I didn't do, that he knew that I didn't do." Defendant also indicated that the detective read his statement aloud and that defendant noted it was "[n]ot word for word, but close enough. I think like he was saying, like if I say chronic, he would put . . . bud. My slang for marijuana is chronic . . . it was no big deal about it, it was the same thing, you know." Detective Whitson's testimony confirms that defendant's hands and feet were handcuffed during the interview. The detective explained defendant was already confined in the Bexar County Jail on an unrelated charge when he first learned of defendant's involvement in the underlying offense from Dewayne, and that "[i]t's standard procedure per Bexar County that if I have one of their prisoners, I keep their ankle bracelets on." According to Detective Whitson, although defendant's hands were handcuffed, his hands were not further chained to a waist-belt or to a table or chair. The detective testified that he wanted to speak with defendant about the underlying offense, as well as a separate offense involving the murder of another individual. He said defendant did not want to speak to him about the other case without his lawyer present; however, defendant did not invoke his right to an attorney or refuse to talk about Shawn Briseño's murder. Detective Whitson testified that defendant was cooperative, and that defendant dictated a statement to him. Before the defendant signed his statement, a City of San Antonio employee, who is not a police officer, witnessed the detective ask defendant if he gave his statement voluntarily without coercion or threat and whether the statement was true and correct. Defendant then signed the statement, after making handwritten corrections. The detective further testified that defendant volunteered to take him to his house to retrieve photographs that would identify persons whom defendant alleged were involved in the murder. Detective Whitson and defendant drove to defendant's house, with defendant providing the directions, where the photographs were retrieved. When hearing a motion to suppress, the trial court may believe or disbelieve any or all testimony and evidence, and an appellate court will not disturb any finding that is supported by the record. See Paulus v. State, 633 S.W.2d 827, 851 (Tex.Crim.App. 1982). Because Detective Whitson's testimony would clearly establish that defendant's statement was freely and voluntarily made, and because the trial court could choose to disbelieve any part or all of defendant's testimony, we hold that the trial court did not abuse its discretion in denying defendant's motion to suppress. Additionally, defendant argues the trial court erred in failing to enter its findings of fact into the record as required by the Texas Code of Criminal Procedure. In cases where a question is raised as to the voluntariness of a defendant's statement, "the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based, which order shall be filed among the papers of the cause." Tex. Crim. Proc. Code Ann. art 38.22, § 6. A trial court may comply with the requirements of the Code of Criminal Procedure by dictating its findings of fact and conclusions of law into the record at the end of the hearing, and those findings are transcribed and made a part of the record without objection. Parr v. State, 658 S.W.2d 620, 623 (Tex.Crim.App. 1983); Blount v. State, 64 S.W.3d 451, 457 (Tex.App.-Texarkana 2001, no pet.); Amunson v. State, 928 S.W.2d 601, 607-08 (Tex.App.-San Antonio 1996, pet. ref'd). Here, the trial court dictated its findings of fact and conclusions of law into the record at the conclusion of the suppression hearing by stating:

And I also find that Mr. McGrew was read his rights in this underlying case, that he understood his rights, and that the rights card pertains to this particular case, and that Mr. McGrew's initials appear thereon, and that Mr. McGrew spoke to the officer and gave a free and voluntary waiver of his rights, and gave a free and voluntary statement, knowingly and intelligently made, both pertaining to the waiver of the rights and the statement itself.

Accordingly, we hold the trial court complied with the Code of Criminal Procedure and entered its findings of fact and conclusions of law into the record without objection.

PRE-TRIAL IDENTIFICATION PROCEDURE

In his fourth issue, defendant complains the identification of him by Kimberly was so suggestive as to give rise to the high likelihood of mistaken identity in violation of defendant's due process rights. Defendant asserts the identification procedure was tainted because, although Kimberly identified defendant, she later could not identify another picture of him. Defendant also claims the identification was suggestive because Detective Whitson, and not an impartial officer, presented the photographs. A pre-trial identification procedure may be so suggestive and conducive to mistaken identification that later use of that identification at trial denies the defendant due process of law. Barley v. State, 906 S.W.2d 27, 32-33 (Tex.Crim.App. 1995). Courts engage in a two-step analysis to determine the admissibility of an in-court identification: whether the out-of-court identification procedure was impermissibly suggestive; and if so, whether the procedure gave rise to a very substantial likelihood of irreparable misidentification. Id. at 33. This analysis requires an examination of the "totality of the circumstances" surrounding the particular case and a determination of the reliability of the identification. Id. Approximately ten months after she was confronted by an armed intruder in the bedroom of the apartment she shared with Shawn, Kimberly was summoned to Detective Whitson's office. At this meeting, Detective Whitson presented Kimberly with three separate photo arrays, only one of which included the defendant. In that array, the defendant's photograph appeared at the bottom right of a card featuring two rows of three photographs each. All six police department photographs featured men of a similar age, hairstyle, and facial features. Kimberly testified that Detective Whitson told her he had some suspects in mind, but he did not indicate that anyone on the cards was in custody. From the arrays presented, Kimberly immediately identified defendant, indicating to the detective that defendant was the person who grabbed her from the bed and dragged her around the apartment demanding money and marijuana. Suggestiveness may be created by the manner in which the pretrial identification procedure is conducted; for example, by police suggesting that the suspect is in the line-up or photo array. Barley, 906 S.W.2d at 33. Here, there is no evidence that Detective Whitson made any suggestive statements to Kimberly or conducted the identification procedure in a suggestive manner. Accordingly, we hold the out-of-court identification procedures were not impermissibly suggestive; therefore, we do not consider whether the procedures created a substantial likelihood of misidentification that would deny defendant his right to due process.

CONCLUSION

We overrule defendant's issues on appeal and affirm the trial court's judgment.