Opinion issued October 9, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00820-CR
____________
CURTIS ROY KENNON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1057191
MEMORANDUM OPINION
A jury found appellant, Curtis Roy Kennon, guilty of the offense of felony murder (1) and assessed his punishment at confinement for thirty years. In four points of error, appellant contends that the trial court erred in concluding that police officers had authority to arrest appellant without a warrant, in concluding that appellant's videotaped statement was made voluntarily, and in not making any findings of fact and conclusions of law regarding the voluntariness of appellant's videotaped statement.
We affirm.
Factual Background Amanda Dyer testified that in November 2005, she and the complainant, Mike Ussin, became friends after she had bought some crack cocaine from him. When Dyer and her boyfriend, Thomas Dockery, moved into the Gateway Inn, they frequently invited the complainant into their motel room to smoke crack cocaine. Dyer's relationship with the complainant changed when, in January 2006, Dyer had sex with the complainant to pay off a debt that she owed to him. After this incident, the complainant began "touching" Dyer in a way that made her uncomfortable, and when Dyer informed Dockery of the "touching," Dockery became upset and wanted to "beat up" the complainant. Also, in January 2006, Dyer and Dockery met appellant and smoked crack cocaine with him on several occasions. Dyer explained that appellant was present when Dockery said that "he wanted to beat up [the complainant]."
On February 8, 2007, the complainant "showed up" at Dyer's motel room and smoked crack with Dyer, Dockery, and appellant, who had spent the night in the motel room. In the early afternoon, after leaving the motel room, the complainant called Dyer to tell her that he had to come back to pick up his jacket. Appellant and Dockery left the room for awhile, and when they returned to the motel room, Dockery told Dyer, "[W]e're going to jack him." However, when the complainant returned to retrieve his jacket, he brought more crack cocaine, which everyone smoked. Dyer explained that as the complainant was sitting on the bed with Dyer smoking crack cocaine, appellant approached the complainant from behind and hit him in the back of the head with a can of beans. After the complainant got up to fight back, Dockery joined the fight. Dyer next remembered that appellant struck the complainant on the head with a glass bottle as Dockery held the complainant on the floor in a chokehold. After incapacitating the complainant, appellant and Dockery bound the complainant's hands with duct tape. Appellant then took off his belt, put it around the complainant's neck, and "yanked up" on the belt, which pulled the complainant at least one foot off of the floor. Before leaving the motel room, appellant went through the complainant's pockets to get the complainant's wallet and money, and Dockery took the complainant's cocaine. Dyer took a few things with her when she left but remembered that she had left a spiral notebook, which contained appellant's name, in the motel room.
Appellant testified that the complainant and Dyer had sex multiple times and that Dockery was aware of their sexual relationship. Appellant stated that it was Dockery, not appellant, who started the fight with the complainant, and, after Dockery hit the complainant, the complainant came towards appellant with his "fists bared." Appellant explained that he then threw a can of beans at the complainant because he was afraid of the complainant and only hit the complainant with a bottle after Dockery had told him to do so. Appellant then took off his belt and tied it around the complainant's neck for about twenty seconds. After being hit repeatedly by the complainant, appellant let go of the belt and watched Dockery choke the complainant for about forty-five seconds before Dockery pounded the complainant's head with a can of beans.
Appellant admitted that previously he had heard Dockery say that he wanted to beat up the complainant, but he denied having any plan to help Dockery. Appellant also admitted that he subsequently helped Dockery bind the complainant's hands behind his back with duct tape, but he denied touching the complainant again. Before leaving the motel room, appellant took approximately six hundred dollars out of the complainant's wallet, and Dockery took some cocaine from the complainant's pockets. After leaving the complainant bound on the floor, appellant went to a motel across the highway and paid for a room for himself, Dyer, and Dockery. However, appellant did not remain in the hotel room; he spent the night at a friend's apartment. On the following day, police officers took appellant into custody, and appellant gave the police officers a videotaped statement. Standard of Review
Our standard for reviewing a trial court's ruling on a motion to suppress evidence is bifurcated; we give almost total deference to a trial court's determination of historical facts and review de novo the trial court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). In reviewing a ruling on a question of the application of law to facts, we review the evidence in the light most favorable to the trial court's ruling. Montanez v. State, 195 S.W.3d 101, 106 (Tex. Crim. App. 2006). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the witnesses' credibility. Maxwell, 73 S.W.3d at 281. Accordingly, the trial court may choose to believe or to disbelieve all or any part of the witnesses' testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
In reviewing a trial court's ruling, we generally consider only evidence adduced at the suppression hearing because the ruling was based on it rather than evidence introduced later. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, this general rule is inapplicable when the parties consensually relitigate the suppression issue during the trial on the merits. Id. When the State raises the issue at trial either without objection or with the defense's subsequent participation in the inquiry, the defendant has made an election to reopen the evidence, and consideration of the relevant trial testimony is appropriate in our review. Id. In the instant case, because appellant fully participated in the relitigation of the issue through his cross-examination of Pasadena Police Department Detective E. Rogge and appellant's testimony during trial, we consider Rogge's and appellant's trial testimony in our review of the trial court's suppression ruling. See id.
Motion to Suppress
In four points of error, appellant argues that the trial court erred in denying his motion to suppress his videotaped statement because the warrantless arrest of appellant was unreasonable, he gave his videotaped statement involuntarily, and the trial court provided insufficient findings of fact and conclusions of law regarding the voluntariness of his videotaped statement.
At a pretrial hearing on appellant's motion to suppress, Pasadena Police Department Detective I. Villareal testified that at approximately 1:40 p.m. on February 8, 2006, the complainant was found dead in a motel room at the Gateway Inn. Because Dyer had last rented the room, she was the primary suspect. Villareal subsequently learned that Dyer had stayed in the motel room with Dockery. Police officers subsequently apprehended Dockery and Dyer, who told the officers that appellant was with them during the beating of the complainant. Also, police officers discovered a notebook that contained appellant's name in the motel room.
Because Villareal did not know of "a particular address" for appellant and had learned that appellant "was going from motel to motel," Villareal made a "wanted flier" describing appellant, and he passed the fliers out to police officers at approximately 8:00 p.m. At approximately 10:30 p.m., Villareal received a telephone call that appellant had been arrested at a local convenience store. When asked why he did not obtain a warrant for appellant's arrest, Villareal explained that appellant "had no permanent residence," "was going from motel to motel . . . [and there was no] permanent address where he could be contacted." Villareal also believed that appellant "was a flight risk."
Pasadena Police Department Detective R. Sorrell testified that, after he conducted a routine traffic stop at a Pasadena convenience store, appellant walked up to the convenience store, looked at him, and went inside. Sorrell saw that appellant looked like the person in the wanted flier, so he went inside of the convenience store and "arrested" appellant. Sorrell did not promise anything to appellant or threaten appellant in any way. Sorrell explained that he arrested appellant because of his involvement in the death of the complainant and he was "a transient and a flight risk." Sorrell further explained that appellant complied with his instructions during the arrest. On cross-examination, Sorrell stated that appellant kept walking at the same pace into the convenience store after seeing him and other police officers.
Pasadena Police Department Detective E. Rogge testified that when he searched for Dyer's name at local motels in Pasadena, he learned that Dyer was staying at the Tropicana Motel. When Rogge arrived at Dyer's room, he found Dyer and Dockery. Dyer stated, "I didn't do anything. They just kept beating him." Both Dockery and Dyer told Rogge that appellant had participated in beating and choking the complainant. After Sorrell arrested appellant, Rogge interviewed appellant at the police station. Rogge read appellant his legal rights and appellant signed a form, which under a header entitled "WAIVER OF RIGHTS," provided,
I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
During the interview, appellant asked to speak to an attorney, and, at that point, Rogge terminated the interview. Rogge explained that, to his knowledge, appellant had waived his legal rights.
On cross-examination, Rogge conceded that he had told appellant to "tell the truth" and that "the only person that can help him is himself." Rogge also conceded that he told appellant "you are screwing things up there," "I want you to tell the truth," and "I'm trying to help you, son." At trial, Rogge further conceded that he had told appellant that, by "giving . . . a statement[,] . . . he could help himself." At trial, appellant testified that, after the beating of the complainant, he wanted to turn himself in, and when he saw police officers at the convenience store, he went there to turn himself in. He talked to the police officers because he wanted "to clear up any misconceptions," tell his "story," and "tell the truth." Appellant asserted that Detective Rogge told him to "come down to the police department and make a statement and then [he] was free to go home" and that "the videotape was going to help" him.
In his videotaped statement, after Detective Rogge orally read him his rights, appellant agreed that no one had "beat on [him], hit on [him], nothing like that." Appellant then admitted on videotape that he had taken part in beating the complainant.
Warrantless Arrest
In his third and fourth points of error, appellant argues that the trial court erred in denying his motion to suppress his videotaped statement because the State "failed to prove by a preponderance of the evidence that the warrantless seizure of [a]ppellant was reasonable, where under a 'totality of the circumstances' no exigency existed and therefore [a]ppellant was not found in a 'suspicious place.'" See U.S. Const. amends. IV, XIV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc. Ann. art. 14.03 (Vernon Supp. 2008), art. 38.23 (Vernon 2005).
Under the United States Constitution, police officers may arrest a suspect without a warrant as long as they have probable cause. United States v. Watson, 423 U.S. 411, 423-24, 96 S. Ct. 820, 828 (1976). In Texas, however, an officer may make a warrantless arrest only if the officer has probable cause with respect to the person being arrested and statutory authority to make the arrest. Neal v. State, 256 S.W.3d 264, 280 (Tex. Crim. App. 2008).
In Texas, a police officer may pursue and make a warrantless arrest of a suspect when it is shown by satisfactory proof, "upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant." Tex. Code Crim. Proc. Ann. art. 14.04 (Vernon 2005); see Neal, 256 S.W.3d at 280.
In Busby v. State, the Texas Court of Criminal Appeals considered, and rejected, an argument similar to appellant's argument. 990 S.W.2d 263, 269-70 (Tex. Crim. App. 1999). In Busby, the defendant shot the complainant and subsequently left the scene of the offense in the complainant's pickup truck. Id. at 269. A police officer relayed this information to other officers on his police radio, and a different officer arrested the defendant after spotting the described pickup truck. Id. The defendant asserted that the officer did not have statutory authority to arrest him without a warrant. Id. Rejecting the defendant's challenge, the Texas Court of Criminal Appeals explained,
Although we have held that the felony/escape rule is not satisfied merely by proof that a suspect travels from one place to another, we have also stated that "[t]he escape requirement is obviously met where the suspect has previously fled." Here, the evidence available to the police shows that [the defendant] had fled the scene of the [offense] in the [complainant's] pickup truck. The [complainant] relayed the crime and [the defendant's] flight to law enforcement officials. [The officer] clearly had satisfactory proof that [the defendant] had committed a felony and had already fled the scene of the [offense]. That evidence, in turn, was satisfactory proof that appellant was about to escape.
Id. at 270 (internal citation omitted) (quoting Dowthitt v. State, 931 S.W.2d 244, 259 (Tex. Crim. App. 1996)); see also Montemayor v. State, 55 S.W.3d 78, 89 (Tex. App.--Austin 2001, pet. ref'd) (concluding that, although defendant acted in "furtive manner," officers had statutory authority to conduct warrantless arrest under felony-escape rule because defendant fled scene of offense and officers believed that defendant was attempting to escape before they arrested defendant).
Here, the evidence available to the police officers showed that appellant had left the scene of the offense where police officers found the complainant dead. Both Dyer and Dockery, who also fled the scene and were found at another motel, told officers that appellant had participated in beating and choking the complainant. Detective Villareal testified that because he did not know of an address for appellant who "was going from motel to motel," he made a "wanted flier," describing appellant and passed out the flier to police officers. Within two and one-half of an hour of passing out the flier, Detective Sorrell saw appellant at a convenience store. Detective Sorrell explained that he arrested appellant because of his involvement in the death of the complainant and he was a "transient and a flight risk." This evidence supports the trial court's conclusion that Detective Sorrell's warrantless arrest of appellant was reasonable and "lawful." See Tex. Code Crim. Proc. Ann. art. 14.04; Busby, 990 S.W.2d at 270. Accordingly, we hold that the trial court did not err in denying appellant's motion to suppress his statement on the ground that his warrantless arrest was made in violation of the United States and Texas Constitutions and the Texas Code of Criminal Procedure.
We overrule appellant's third and fourth points of error.
Voluntariness of Statement
In his second point of error, appellant argues that the trial court erred in denying his motion to suppress his statement because it was obtained "by overbearing his will, so as to render it involuntary." See U.S. Const. amends. V, XIV.
A defendant's statement may be used in evidence against him if the defendant made it freely and voluntarily and without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). When considering whether a statement was voluntarily made, we consider the totality of the circumstances in which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).
A confession is involuntary if circumstances show that the defendant's will was overborne by police coercion. Id. The defendant's will may be "overborne" if the record shows that there was "official, coercive conduct of such a nature" that a statement from the defendant was "unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).
A defendant's statement is also involuntary if it is induced by a promise that was (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that it would cause a defendant to speak untruthfully. Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997). An improper inducement must be of an exceptional character before it will invalidate an otherwise voluntary confession. Drake v. State, 123 S.W.3d 596, 603 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd). General, nonspecific offers to help a defendant are unlikely to elicit a false statement from the defendant, and will not render a confession invalid. Id. (citing Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983)). Furthermore, general statements about how a confession might result in more lenient treatment will not invalidate the confession. Id.
In support of his argument that his videotaped statement was obtained involuntarily, appellant asserts that Detective Rogge gave him an "offer of freedom" that, "if he cooperated and gave a statement, he would be free to go home." Appellant also asserts that there was a "threatening environment" when Rogge told appellant "now your [sic] fixing to piss me off . . . do not leave anything out . . . your [sic] starting to piss me off" and "[y]our [sic] screwing this up . . . tell the truth . . . I'm trying to help you son."
Even if Detective Rogge told appellant that he would be "free to go home" if he gave a statement, such a representation was not a promise that would have induced appellant to speak untruthfully and thus render appellant's confession involuntary. See Alvarez v. State, 649 S.W.2d 613, 620 (Tex. Crim. App. 1983) (holding that police officer's statement that defendant could "probably go home" by giving statement, even if promise, did not render confession involuntary); Gonzales v. State, 4 S.W.3d 406, 414-15 (Tex. App.--Waco 1999, no pet.) (concluding that officer's statement to defendant "several times that he was free to go home" did not "influence [defendant] to speak untruthfully" and render his confession involuntary). Also, any statement by Rogge that he was trying "to help" and that, by giving a statement, appellant "could help himself," were not the type of positive promises that would be likely to influence appellant to speak untruthfully. See Dykes, 657 S.W.2d at 797 (holding that officer's general, but unspecific offers to help are not likely to induce untruthful statement); Drake, 123 S.W.3d at 603 (officer's assertion to defendant that she "could help herself" by giving statement did not render defendant's statement involuntary). Finally, although Rogge confronted appellant and told him to tell the complete "truth," nothing in the record suggests the officer's tactics improperly compelled appellant to continue talking. See State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999) ("[T]elling [defendant] in a noncustodial setting 'what had to be' in [defendant's] statement is not the type of practice that has been held to be inherently coercive as to make a statement involuntary."); Stevenson v. State, 780 S.W.2d 294, 298 (Tex. App.--Tyler 1989, no pet.) ("A confession is not rendered inadmissible because an accused has been told by an officer taking the confession that it would be best to tell the truth.").
Here, the record shows that Detective Rogge read appellant his legal rights, and appellant waived those rights orally and in writing. Appellant's assertion that a "threatening" environment rendered his videotaped statement involuntary is without evidentiary support. In fact, his videotaped statement shows that appellant agreed that "no one had beat on him" and that he gave his statement completely by his own free will. Also, when appellant did ask for an attorney, Detective Rogge terminated the interview. Based on the record presented, Rogge's tactics cannot be characterized as abusive and coercive. The evidence presented supports the trial court's conclusion that appellant knowingly waived his legal rights before making his voluntary videotaped statement. Accordingly we hold that the trial court did not err in denying appellant's motion to suppress his videotaped statement to police officers on the ground that it was made involuntarily.
We overrule appellant's second point of error.
Findings of Fact and Conclusions of Law
In his first point of error, appellant argues that the trial court's findings of fact and conclusions of law on the voluntariness of his videotaped statement are insufficient for appellate review. Appellant asserts that the trial court "has failed to make any findings as to voluntariness."
When the voluntariness of a statement made by a defendant is questioned, the trial court is required to make an independent finding, outside the jury's presence, as to whether the statement was made under voluntary conditions. Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005). If the trial court determines that the defendant made the statement voluntarily, it must then enter findings of fact and conclusions of law. Id.; Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004). The "'[f]indings need not be made with minute specificity as to every alleged and hypothetical possibility for physical or mental coercion, but need only be sufficient to provide the appellate court and the parties with a basis upon which to review the trial court's application of the law to the facts.'" Vasquez v. State, 179 S.W.3d 646, 654 (Tex. App.--Austin 2005) (quoting Nichols v. State, 810 S.W.2d 829, 831 (Tex. App.--Dallas 1991, pet. ref'd)), aff'd, 225 S.W.3d 541 (Tex. Crim. App. 2007). Thus, the trial court is not required to make specific findings about how conflicting testimony does not render the defendant's statement involuntary. Guidry v. State, 9 S.W.3d 133, 141 (Tex. Crim. App. 1999).
Here, the trial court filed twelve findings of fact in which it noted that before questioning began, Detective Rogge had informed appellant of his legal rights; appellant agreed to answer Rogge's questions after indicating that he understood his legal rights; and appellant voluntarily offered information regarding his involvement in the offense. The findings of fact explain that the interview was videotaped. Also, the trial court, in its conclusions of law, noted that appellant knowingly, intelligently, and voluntarily waived his legal rights.
The trial court's findings, noting that appellant had voluntarily offered information, address the issue of whether or not appellant was threatened or coerced into giving his videotaped statement. The trial court was not required to specifically address the facts that appellant believes would show such coercion. See Guidry, 9 S.W.3d at 142 (reasoning that trial court need not outline testimony that does not support its conclusions). Accordingly, we hold that the trial court did not fail to make sufficient findings of fact and conclusions of law for appellate review.
We overrule appellant's first point of error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Hanks, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
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