Opinion issued May 6, 2010.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-08-00900-CR
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Alvie Lee Butler, Appellant
V.
The State of Texas, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 1074265
MEMORANDUM OPINION
Appellant, Alvie Lee Butler, was charged with the felony offense of capital murder. Appellant pleaded not guilty. A jury found appellant guilty of the offense and the trial court sentenced him to confinement for life. In five issues, appellant contends (1) the trial court erred by failing to file findings of fact and conclusions of law regarding the voluntariness of appellant’s custodial statement, (2) appellant’s custodial statement was not voluntary and should have been suppressed, (3) the jury instructions authorized conviction on a theory not contained within the indictment, (4) the automatic imposition of a life sentence pursuant to Texas Penal Code section 12.31(b) violates the United States Constitutional protection against cruel and unusual punishment, and (5) the automatic imposition of a life sentence pursuant to Texas Penal Code section 12.31(b) violates the Texas Constitutional protection against cruel and unusual punishment. We affirm.
Background
Complainant, Jose Morales Lopez, was shot and killed on an early June 2006 morning. Police found Lopez in the backseat of his car with a bullet wound to his head. Lopez was shot when appellant attempted to rob him with co-assailants. The other assailants associated with appellant and Lopez’s death were Timothy Randle, Keithron Fields, and Dexter Johnson.
Randle, testifying as an accomplice witness, testified that he, appellant, Fields, and Johnson decided to rob someone. The assailants went searching for a victim traveling in a group divided between two cars with Randle driving a stolen Ford and appellant, Fields, and Johnson driving a stolen Toyota. The assailants were dressed entirely in black and wore black bandanas.
Once the assailants saw Lopez driving alone in his car, the assailants targeted Lopez as someone to rob. When the assailants caught up to Lopez with their cars, Johnson drove the Toyota in front of Lopez’s vehicle and slammed on the brakes. Appellant and Fields leapt out of the Toyota and approached Lopez’s vehicle, capturing him unaware. Appellant and Fields forced Lopez into the rear seat and held him there. Fields took control of Lopez’s car and drove the vehicle to a deserted dead-end street, while Johnson and Randle followed in the stolen Toyota and Ford. Once all the assailants parked, they executed Lopez.
Later that morning, Houston Police crime scene investigator Jay Hammerle was called to the scene of the crime. Investigator Hammerle testified that the assailant had left Lopez in the backseat of the vehicle where they executed him. From cartridges left in Lopez’s car, officers determined that a .22 millimeter automatic handgun had been used to execute Lopez at point-blank range.
Houston Police Officer Todd Miller later obtained arrest warrants for appellant, Randle, and Fields. Three days after Lopez’s murder, Officer Miller arrested appellant and Randle while they were putting luggage into a vehicle in an apparent attempt to flee. Officer Miller testified that after arresting appellant he read appellant the standard Miranda warning and asked appellant if he understood his rights. Appellant answered affirmatively and stated “I’ll tell you everything.” Appellant cooperated with the investigation, even assisting the police in an attempt to apprehend Fields.
Eventually, appellant gave a recorded statement. In the statement, appellant claimed that he, Randle, Fields and Johnson ambushed Lopez in his car and tried to get him to give them money. He stated they drove Lopez to an isolated spot and that Fields shot Lopez on Johnson’s orders when Lopez did not produce any money. Appellant agreed that he was in the car with Lopez, but denied having a gun or being in the back seat. Miller stated that throughout the course of the investigation, appellant was cooperative, calm, and “matter of fact.” Miller stated that he did not detect any type of mental impairment, but to the contrary, found appellant to be “very oriented as to person, place, and thing.” Additionally, Miller testified that appellant was not promised anything in exchange for his statement; was not handcuffed during the interview; and was not intimidated, coerced, or abused by any officer.
At trial, multiple witnesses testified about the physical evidence obtained by the police and the crime scene. Officer Miller testified regarding his interview with appellant. Randle gave accomplice testimony. Appellant did not call any witnesses.
Findings of Fact and Conclusions of Law
In appellant’s first issue, he contends the trial court erred by failing to make written findings of fact and conclusions of law regarding the voluntariness of his statement. When a question is raised about the voluntariness of a defendant’s statement, the trial court must make an independent finding, in the absence of the jury, whether the defendant gave the statement voluntarily. Tex. Code Crim. P. Ann. art. 38.22, § 6 (Vernon 2005). If the trial court finds the statement was voluntary and is admissible, the court must “enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with specific findings of facts upon which the conclusion was based . . . .” Id.
In July 2009, we granted the State’s motion to abate and remand the case to give the trial court an opportunity to file findings and conclusions concerning appellant’s statement. Pursuant to our remand order, the trial court filed written findings of fact and conclusions of law regarding the voluntariness of appellant’s statement. Because the trial court entered written findings of fact and conclusions of law, appellant’s first issue is rendered moot. See Rocha v. State, 16 S.W.3d 1, 10 (Tex. Crim. App. 2000) (holding that trial court’s findings of fact and conclusions of law rendered moot appellant’s complaint that no findings were made).
We overrule appellant’s first issue.
Motion to Suppress
In his second issue, appellant contends the trial court erred by denying the motion to suppress his custodial statement. Appellant contends the statement was not made freely and voluntarily because his mental ability to understand the consequences of his statement is limited.
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). However, article 38.22, section 2(b) specifies that no statement made by an accused as a result of custodial interrogation may be admissible unless the accused “prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived” the warnings prescribed by section 2(a). Tex. Code Crim. Proc. Ann. art. 38.22 § 2(a), (b) (Vernon 2005). “The determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition.” Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (quoting Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995).
A statement is involuntary “only if there was 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.” See State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999) (quoting Alvarado, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)). “Absent coercive police conduct causually related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Alvarado, 912 S.W.2d at 211.
Once the defendant moves to suppress a statement on the ground of “involuntariness,” the due process guarantee requires the trial court to hold a hearing on the admissibility of the statement outside the presence of the jury. Id. At the hearing, the trial court is the sole judge of the weight and credibility of the evidence. Id. Thus, the trial court is free to believe any or all of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). In reviewing a trial court’s ruling on a motion to suppress evidence, an appellate court should give great weight to the inferences drawn by the trial court and law enforcement officers and the trial court’s finding may not be disturbed on appeal absent clear abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Alvarado, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Davis v. State, 989 S.W.2d 859, 862 (Tex. App.—Austin 1999, pet. ref’d).
The trial court held a suppression hearing. The court denied appellant’s motion to suppress his custodial statement. In accordance with section 6 of article 38.22 of the Texas Code of Criminal Procedure, the trial court entered findings of fact and conclusions of law regarding the voluntariness of appellant’s recorded custodial statement. See Tex. Code Crim. Proc. Ann. art. 38.22 § 6. The trial court found that once he arrested appellant, “Officer Miller informed [appellant] of his rights provided by Miranda v. Arizona and article 38.22 of the Texas Code of Criminal Procedure.” Once admonished, appellant “indicated to the officer that he understood his rights and he voluntarily waived them. . . . [and] then freely and voluntarily conversed with the police.” The court further noted that appellant later left the police station and helped the police search for another suspect. The court noted that when appellant returned to the police station, “Officer Miller provided [appellant] with food and beverage and allowed him to use the restroom as needed. . . . [and he] reminded [appellant] of the warning previously administered and the rights previously waived.” The court found that appellant again “indicated he understood his rights and again waived them.” The court found appellant “then began to converse about several capital murders and robberies in which he and his co-actors had been involved and gave a voluntary, tape-recorded statement.”
The court found that “[a]t no time during the course of the interview, the search for his co-actor, or the defendant’s recorded statement did Officer Miller detect any mental impairment.” The court stated, “To the contrary, Officer Miller found [appellant] to be ‘very oriented as to person, place, and thing.’” The court further found that appellant “was not promised anything in exchange for his statement,” he was “not handcuffed during the interview,” and “the officers never used any intimidation, coercion, or force against the defendant.” Finally, the court found appellant “voluntarily spoke to the officers during the recorded interview and he admitted to his participation in the murder of [Lopez] and to his participation in several other capital murders and robberies.”
Finding that the testimony of Officer Miller was credible, the trial court ultimately concluded that appellant had “knowingly, intelligently, and voluntarily waived his rights and voluntarily spoke to the officers prior to and during the recorded interview.” The court also concluded “the defendant did not invoke his right to counsel or his right to remain silent” and that appellant “voluntarily confessed to his involvement in the shooting of [complainant].”
The record supports the trial court’s findings and conclusions. It shows Houston police officers lawfully placed appellant in custody and transported him to the police station pursuant to an arrest warrant. The record shows that Officer Miller advised appellant of his rights, and that appellant waived those rights. Appellant later left the police station to help the police locate a suspect. When he and the police returned to the police station, Officer Miller asked appellant if he remembered the rights Officer Miller had admonished him of earlier. Appellant replied affirmatively. Officer Miller then asked him if he wanted to give up those same rights and continue talking. Appellant indicated that he did. The record shows appellant then conversed about several capital murders and robberies that he was involved in, and gave a voluntary tape-recorded statement regarding multiple murders. Miller testified that appellant was not promised anything in exchange for his statement, he was not handcuffed during the interview, was provided food and drink, was allowed to use the restroom, and was not under intimidation or coercion from the police.
Officer Miller also testified that during the interview, appellant was “calm, cooperative” and “matter-of-fact.” Appellant “always appeared to understand, he gave an appropriate response to every question that [Miller] asked and was never hesitant and never invoked his right to remain silent.” When asked if he ever became aware of any mental impairment, Officer Miller responded that he did not “become aware that [appellant] had any kind of mental impairment in talking with him.” Appellant did discuss a “cranial operation,” but when Officer Miller asked him if there was anything he could not do besides drive, appellant responded that he could do everything else. Overall, appellant “was very oriented as to person, place and thing.” He answered everything that Officer Miller asked him and he seemed “as intelligent as many of the other people that I talked to on a daily basis and some of the people I worked with.” We conclude the evidence adduced at the suppression hearing supports the trial court’s findings.
Appellant asserts that because he is “intellectually weak,” he could not have voluntarily given his statement. A statement is not inadmissible simply because a defendant suffers from mental impairments. See Green v. State, 839 S.W.2d 935, 940 (Tex. App.—Waco 1992, pet ref’d); see also Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970). Evidence of diminished mental capacity is merely a factor to be considered under the “totality of the circumstances” standard for determining whether a confession is admissible. See Bizzarri v. State, 492 S.W.2d 944, 946 (Tex. Crim. App. 1973). The question is whether appellant’s mental impairment was so severe that he was incapable of understanding the meaning and effect of his confession. See Green, 839 S.W.2d at 940.
At the pretrial hearing, appellant admitted school and medical records. The records show he did poorly in school, was retained for an additional year in first grade, had an I.Q. of 75 at age 10, and did poorly in high school. “Texas courts have long upheld confessions made by defendants suffering from more severe mental impairments than that attributed to appellant.” See Harner v. State, 997 S.W.2d 695, 700 (Tex. App.—Texarkana 1999, no pet.) (involving defendant who had eighth-grade education, attended special education classes, was mental health patient, took medication, and was told he could return to state mental health agency if he signed his confession); see also Bell v. State, 582 S.W.2d 800, 808–09 (Tex. Crim. App. 1979) (upholding voluntariness determination in case in which defendant was mildly mentally disabled and appellant contended he “lacked the capacity to read and understand certain statements”); Casias, 452 S.W.2d at 488 (holding statement to be voluntary even though defendant had I.Q. of 68, was “retarded,” illiterate, at the mental age of eight to ten, and was at educational level of “approximately second grade”).
Additionally, appellant gave “an appropriate response to every question” asked by Miller and appeared to understand what was being asked. The record also shows appellant was able to give the details about multiple crimes he had committed and also tried to help the police apprehend another suspect by pointing out locations to the police. When asked if he understood his rights, appellant stated that he did and stated “I’ll tell you everything.” When discussing the crimes, appellant “denied involvement himself, but did tell [Officer Miller] who it was that was involved and the general location where he believed the bodies [of other missing persons] to be.” Such remarks indicate appellant had the ability to think defensively and to offer a mitigating statement. See Delao v. State, No. 10-05-00323-CR, 2006 WL 3317718, at *3 (Tex. App.—Waco Nov. 15, 2006) (mem. op., not designated for publication), aff’d on other grounds, Delao v. State, 235 S.W.3d 235, (Tex. Crim. App. 2007). These comments, and others made by appellant during the interview, indicate appellant’s awareness that confessing may lead to criminal prosecution. See id. The record, therefore, does not show that appellant’s mental impairments are so severe as to prevent him from comprehending the consequences of his confession. See Green, 839 S.W.2d at 940.
Because the trial court’s findings are supported by the evidence, and any mental deficiency of appellant is not a factor that requires disregarding appellant’s custodial statement, we hold the trial court properly denied appellant’s motion to suppress. See Franks, 90 S.W.3d at 786 (holding statement properly admitted by trial court because evidence failed to show Franks was coerced or intimidated into giving his statement, and failed to show he did not understand his rights or consequences of abandoning them).
We overrule appellant’s second issue.
Jury Charge
In his third issue, appellant contends the trial court’s jury charge was erroneous because it authorized a conviction on a different theory than alleged in the indictment. He asserts the court’s inclusion of the law of parties lessened the State’s burden of proof for capital murder.
It is well-settled that a jury may be charged on the law of parties even though no such allegation is contained in the indictment. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005) ( law of parties need not be pled in indictment); Marable v. State, 85 S.W.3d 287 (Tex. Crim. App. 2002) (same). “This rule applies not only to the law of parties found in [s]ection 7.02(a)(2) [of the Texas Penal Code] but also the law of parties found in Section 7.02(b).” Montoya, 810 S.W.2d at 165.
Appellant was charged under the law of parties found in section 7.02(b), which provides,
If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
Tex. Penal Code Ann. § 7.02(b) (Vernon 2003). Appellant contends he could not be guilty in this case, even as a party, unless he specifically intended for Lopez’s death to occur as a result of his conduct. However, “[n]otwithstanding the requirement that an actor charged with capital murder must have specifically intended to cause the death of another, [P]enal [C]ode section 7.02(b) explains that a party may still be criminally responsible for the acts of another even though the party did not intend for the act to occur as a result of his conduct.” Wood v. State, 4 S.W.3d 85, 89 (Tex. App.—Fort Worth 1999, pet. ref’d) (citing Tex. Penal Code Ann. § 7.02(b)) (emphasis omitted); see also Cienfuegos v. State, 113 S.W.3d 481, 493–94 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). As a result of section 7.02(b), the Court of Criminal Appeals and multiple appellate courts have upheld the application of the law of parties in capital murder cases. See Montoya, 810 S.W.2d at 165 (noting, “our examination of case law shows that the theory of criminal responsibility set forth in section 7.02(b) has often been applied in capital murder cases”); see also, e.g., Johnson v. State, 853 S.W.2d 527, 536 (Tex. Crim. App. 1992); Fuller v. State, 827 S.W.2d 919, 932–33 (Tex. Crim. App. 1992). Although the indictment did not contain an allegation under section 7.02(b), the trial court properly included that instruction based on the evidence admitted at trial. See Vodochodsky, 158 S.W.3d at 509; Montoya, 810 S.W.2d at 165; Wood, 4 S.W.3d at 89 (holding court’s jury charge not erroneous in capital murder case where charge was pursuant to section 7.02(b) even though indictment did not allege conspiracy).
We overrule appellant’s third issue.
Cruel and Unusual Punishment
In his fourth and fifth issues, appellant contends section 12.31 of the Texas Penal Code violates the prohibition of cruel and unusual punishment guaranteed by the Eighth Amendment of the United States Constitution and article I, section 13, of the Texas Constitution. See U.S. Const. amend. VIII; Tex. Const. art. I, § 13. Section 12.31(b) of the Texas Penal code provides that in a capital felony trial in which the State does not seek the death penalty, prospective jurors shall be informed that the State is not seeking the death penalty and that a sentence of life imprisonment without parole is mandatory on conviction of the capital felony. Tex. Penal Code Ann. § 12.31(b) (Vernon Supp. 2009).
We hold appellant waived this issue on appeal because he failed to assert this challenge to the trial court. See Curry v. State, 910 S.W.2d 490, 497 (Tex. (Tex. Crim. App. App. 1995) (failure to make specific objection at trial waives Eighth Amendment claim of cruel and unusual punishment); Solis v. State, 945 S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (cruel and unusual punishment challenge may be waived by failing to object at trial).
Moreover, even if appellant had not waived this issue, a mandatory sentence of life imprisonment without parole is not cruel and unusual punishment proscribed by the Eighth Amendment of the United State Constitution. See Harmelin v. Mich., 501 U.S. 957, 995, 111 S. Ct. 2680, 2701 (1991). Similarly, it does not violate the analogous prohibition of article I, section 13 of the Texas Constitution. Cienfuegos, 113 S.W.3d at 496.
We overrule appellant’s fourth and fifth issues.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack, and Justices Alcala and Higley.
Do not publish. Tex. R. App. P. 47.2(b).