Opinion
No. 4-05-00570-CR
Delivered and Filed: July 26, 2006. DO NOT PUBLISH.
Appeal from the 379th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-5264B, Honorable C.W. Duncan, Judge Presiding. Affirmed.
Sitting by assignment.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
William Taylor was convicted of two counts of aggravated robbery and was sentenced to forty years imprisonment on each count. On appeal, he argues that his confession to police was involuntary and that the evidence is insufficient to warrant the trial court sentencing him to forty years imprisonment. We disagree and affirm the judgment of the trial court.
Background
On April 23, 2004, the EZ Mart Pawn Shop was robbed by three men. Witnesses to the robbery testified that two men came into the store with bandannas around their faces; one of whom carried a sawed-off shotgun. The two men stole an undisclosed amount of money, which they placed into a white plastic bag with the words "Thank You" printed on it and fled in a car driven by a third man. A bystander saw the car driving away and reported the car's license plate to police. A patrol officer saw a vehicle matching that description parked behind a house a few blocks from the EZ Mart. As the patrol officer stopped his car, two suspects exited the vehicle and ran away. The officer did not pursue the suspects but did broadcast a description of them over his radio. As he secured the scene, he found a sawed-off shotgun lying in the grass close to the back door of the house. Later, other officers found Taylor inside the house, along with bandannas and a white plastic bag with the words "Thank You" on it. Taylor was arrested the day of the robbery for failure to identify himself and was held in jail for several days. On May 5, 2004, he was arrested for aggravated robbery and was taken to the police substation where he signed a Miranda card, indicating that he was aware of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). Taylor then gave a statement to Detective Jeffery Smith, which was signed by Taylor and witnessed by a civilian employee. On appeal, Taylor asserts that the trial court abused its discretion by 1) failing to suppress his involuntary custodial statement and 2) sentencing him to forty years when the State presented no additional evidence during the sentencing phase.Voluntary Statement
In his first issue, Taylor argues that his confession was involuntary. When a defendant challenges the voluntariness of his confession, the trial court is required to make an independent finding in the absence of the jury. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). In reviewing issues relating to suppression of evidence, we afford almost total deference to a trial court's determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App. 1997). When reviewing a trial court's ruling on a mixed question of law and fact, we review de novo the trial court's application of the law to the facts of the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App. 2005). However, we afford almost total deference to the trial court's evaluation of the credibility and demeanor of the witnesses. Id. At the suppression hearing, Taylor testified that on the day he was arrested and gave his statement to police, he had been using marijuana, cocaine, and alcohol. According to Taylor, he did remember signing a "Miranda card," indicating that he had been read and understood his rights. However, he testified that he has no memory of giving a statement or any of the events that took place between the time he signed the "Miranda card" and the time he appeared before the magistrate, several hours later. Taylor also testified that he fell asleep during questioning. According to Taylor, his confession to the investigating detective should be inadmissible as an involuntary statement due to intoxication. The Texas Court of Criminal Appeals, however, has explained that "[i]ntoxication, while relevant, is not per se determinative of the voluntariness of a confession." Nichols v. State, 754 S.W.2d 185, 190 (Tex.Crim.App. 1988), overruled on other grounds by Green v. State, 764 S.W.2d 242, 247 n. 2 (Tex.Crim.App. 1989). The question is whether the "appellant's intoxication rendered him incapable to make an independent, informed choice of free will." Id. At the suppression hearing, the investigating detective testified that he had no formal training in determining whether someone was intoxicated, but as a nineteen-year veteran of the police force, he had encountered intoxicated individuals in the past. To the investigating officer, Taylor did not appear to be intoxicated; he interacted with the officer and answered questions while the officer typed his statement. And, contrary to Taylor's testimony, the investigating officer testified that Taylor did not fall asleep during the forty-five minutes it took to draft and sign the statement. The only two witnesses called at the suppression hearing were the investigating detective and Taylor. "At a suppression hearing, the trial judge is the sole judge of the credibility of the witnesses and of the weight attributable those witnesses." Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App. 1993). The judge may believe or disbelieve all or any part of a witness's testimony, and his findings should not be disturbed absent a clear abuse of discretion. Id. The trial judge, in this case, found that Taylor appeared coherent and not under the influence of drugs or alcohol when providing his statement. We must defer to that finding and hold that the trial court did not abuse its discretion in denying Taylor's suppression motion.Sentencing
In his second issue, Taylor argues that the trial court abused its discretion by sentencing him to forty years of imprisonment based solely on the Pre-Sentence Investigation (PSI) report not admitted in evidence and anecdotal stories about his prior offenses and his time in the Bexar County jail presented by the State during closing argument. Thus, Taylor complains that the State failed to introduce any evidence during the punishment phase. First, the State is not required to introduce evidence during the punishment phase. Tamminen v. State, 653 S.W.2d 799, 802 (Tex.Crim.App. 1983); see Wright v. State, 468 S.W.2d 422, 424 (Tex.Crim.App. 1971) (finding no merit in appellant's argument that if the State fails to offer evidence during the penalty stage, the trial court may not assess punishment in excess of the minimum sentence and holding that the State is not required to offer any evidence during punishment). Article 37.07 of the Texas Code of Criminal Procedure "contemplates a separate hearing on proper punishment and categorizes what evidence ` may be offered,' to inform the discretion of the assessor of punishment." Tamminen, 653 S.W.2d at 802 (emphasis in original); see Tex. Code Crim. Proc. Ann. 37.07, § 3 (Vernon Supp. 2005). Thus, although the State may offer evidence, it need not do so during the punishment phase. Second, with regard to the PSI, the Texas Court of Criminal Appeals has held that the PSI need not be formally introduced in evidence:The purpose of compiling a PSI is to fully inform the trial court of the circumstances of the offense, the defendant's background, education, prior offenses, and prospects for rehabilitation, and the harm, if any, caused to the victim of a crime. There would be little purpose in compiling this report if the trial judge cannot rely upon the information contained within it. Because the Texas Legislature gave the defendant an explicit statutory right and opportunity to object to the factual accuracy of its contents and to correct any mistakes or misstatements, it surely intended that the trial judge would rely upon unobjected-to facts contained within that PSI when assessing an appropriate punishment. Therefore, we hold that a trial judge may take judicial notice of unobjected-to facts contained within a PSI. . . . Thus, if either the State or the defendant requests the trial court to take judicial notice of some fact contained within the PSI, and the opposing party (who has previously had an opportunity to review that report) does not object to the accuracy of that fact, the trial court's act of taking judicial notice dispenses with the need for any further, formal proof of the fact. The PSI report need not be formally introduced into evidence.Brewer v. State, No. 2004 WL 3093224, at *3-*4 (Tex.Crim.App. 2004). Here, the reporter's record of the sentencing hearing reflects that the defendant had had an opportunity to review the PSI and had no corrections or deletions. The trial court then asked to take judicial notice of the PSI:
Court: Has the defendant had an opportunity to go over this pre-sentence investigation?Defense: The defense has, yes.
Court: Do you have any corrections, deletions, or any other matter for the Court to change or consider?Defense: No, sir.
Court: The Court may consider the PSI simply as it has been presented to the Court?Defense: Yes, sir.
Court: All right. Does the State have anything on punishment?
State: Other than what's contained in the PSI and arguments, Your Honor. The State has no witnesses.We, therefore, hold that the trial court properly considered the PSI. Third, with regard to the anecdotal stories presented by the State in closing argument, Taylor complains that the State attempted to paint a picture of him as beyond rehabilitation, stating that his jail record showed that while held in the jail, he had attempted to "manipulate the system" and had associated with known criminals. However, Taylor made no objection to the State's argument and therefore has failed to preserve error for appeal. See Tex. App. P. 33.1. Finally, where the punishment assessed is within range prescribed by statute, it is beyond the province of an appellate court to pass upon the propriety of the sentence. Darden v. State, 430 S.W.2d 494, 496 (Tex.Crim.App. 1968); Burtts v. State, No. 04-05-00613-CR, 2006 WL 1233052, at *1 (Tex.App.-San Antonio 2006, no pet. h.). The statutory range for the offense was five to ninety-nine years. See Tex. Pen. Code Ann. § 12.32(a) (Vernon 2003). At sentencing, Taylor asked for a ten-year sentence while the State requested a life sentence. Taylor's sentence of forty years fell within the statutory range of punishment for the offense; therefore, his sentence was not excessive. We find no abuse of discretion by the trial court.