IN THE
TENTH COURT OF APPEALS
No. 10-01-223-CR
GARY CHARLES GROVES,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court # 25,242 CR
O P I N I O N
Gary Groves appeals from a life sentence and $10,000 fine for the murder of Charity Sue Comes. Groves claims in two points that the trial court abused its discretion by (1) admitting a white t-shirt when its chain of custody had not been properly established, and (2) admitting Groves’s written confession taken in violation of his Miranda rights. We affirm.
CHAIN OF CUSTODY OF THE WHITE T-SHIRT
Groves claims in his first point that the trial court abused its discretion in admitting the white T-shirt that the victim had allegedly worn because the condition of the shirt was altered after it was seized by law enforcement officers. Groves contends that a chain of custody was not established and therefore it should not have been admitted. Because a chain of custody is not required for articles of clothing which are readily identifiable, we disagree.
The determination of the admissibility of evidence is left to the sound discretion of the trial court and will not be reversed on appeal unless a clear abuse of discretion is shown. Werner v. State, 711 S.W.2d 639, 643 (Tex. Crim. App. 1986); Nevarez v. State, 832 S.W.2d 82, 86 (Tex. App.—Waco 1992, pet. ref’d). We require a chain of custody showing only when scientific tests or analyses can distinguish the evidence’s relevant characteristics. Ballard v. State, 23 S.W.3d 178, 183 (Tex. App.—Waco 2000, no pet.); Davis v. State, 831 S.W.2d 426, 443 (Tex. App.—Austin 1992 pet. ref’d). If the offered item possesses characteristics which are fairly unique and readily identifiable, and if the substance of which the item is composed is relatively impervious to change, the trial court is viewed as having broad discretion, and no chain of custody is necessary. Hackbarth v. State, 617 S.W.2d 944, 947 (Tex. Crim. App. 1981). Here, the clothing was readily identifiable and therefore no chain of custody was necessary. Id.; Belcher v. State, 661 S.W.2d 230, 233 (Tex. App.—Houston [1st Dist.] 1983, pet. ref’d).
Accordingly, point one is overruled.
WRITTEN CONFESSION
Groves claims in his second point that the trial court abused its discretion in admitting Groves’s written statement into evidence because the written statement was taken while in custody and was not voluntary. We disagree.
An accused must give his confession voluntarily before it can be used against him. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995); Sendejo v. State, 953 S.W.2d 443, 447-48 (Tex. App.—Waco 1997, pet. ref’d). Once the accused contests the admission of his 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. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (citing Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)); see also Tex. Crim. Proc. Ann. art. 38.22 § 6 (Vernon Supp. 2003).
The 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. Proc. Ann. art. 38.21 (Vernon 1977). The determination of whether a confession is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition. Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996); Rodriquez v. State, 934 S.W.2d 881, 887 (Tex. App.—Waco, 1996, no pet.). The admission of an involuntary confession is a trial error subject to a harm analysis. Rey v. State, 897 S.W.2d 333, 344-45 (Tex. Crim. App. 1995).
In reviewing the trial court’s ruling on a motion to suppress, an appellate court should show almost total deference to the trial court’s determination of the historical facts that are supported by the record. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Rodriquez, 934 S.W.2d at 887. However, the appellate court reviews de novo the trial court’s determination of mixed questions of law and fact that do not turn upon an evaluation of the credibility and demeanor of the witnesses. Guzman, 955 S.W.2d at 89. The appellant has the burden of demonstrating clear abuse of discretion on the part of the trial judge in denying the motion to suppress. Hiser v. State, 830 S.W.2d 338, 340 (Tex. App.—Houston [14th Dist.] 1992, no pet.).
Groves complains that his confession should not have been admitted into evidence because, even though he voluntarily waived his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), it was unlawfully obtained through the use of unduly coercive interrogation techniques.
The trial court held a hearing on Groves’s motion to suppress. Groves testified that (1) law enforcement officers made threats, (2) Groves was refused contact with his family, (3) Groves was promised leniency in exchange for a confession, (4) law enforcement officers created an adversarial atmosphere that emotionally upset Groves, (5) the arraignment was delayed, and (6) the interrogation was prolonged and “inherently coercive.”
“Inherently Coercive”
In support of Groves’s argument that the interrogation tactics used by the police officers were coercive, Groves points to Ashcraft v. Tennessee. 322 U.S. 143, 153, 64 S. Ct. 921, 926, 88 L. Ed. 1192 (1944). In Ashcraft, the defendant was held for thirty-six hours after his seizure. He was held incommunicado, without sleep or rest. Relays of officers, experienced investigators, and highly trained lawyers questioned him without respite. None of these facts were disputed by the State. Id. The Court held that this situation was inherently coercive, and the defendant’s confession was involuntary. Id. at 153-54, 64 S. Ct. at 926.
Groves testified that the questioning period lasted for nine hours total and the statement took two hours to write. He also testified that he was subjected to relay questioning.
The officers’ testimony agreed generally that the questioning period lasted for seven hours and the writing of the confession lasted for two hours, the officers’ testimony noted that time included breaks given to Groves by the officers, and breaks that Groves took while writing his confession as well. Additionally, the officers gave Groves drinks, food, and restroom breaks. The officers testified that they never told Groves what to write. The following day, Groves took the officers to the scene of the crime.
Groves testified that the statement he wrote was mostly dictated to him by the officers. The officers denied this allegation. One officer admitted that the purpose of the questioning was to obtain a confession from Groves.
While all of these circumstances may contribute to an involuntary statement, none are so heinous that they would support a finding of “inherent coercion” under Ashcraft.
Other Circumstances
Groves, who was twenty-one at the time of the custodial interrogation, testified that he was not allowed to contact his mother and was threatened during the interrogation. Testimony establishes that prior to questioning and after being Mirandized, Groves understood his rights and never asked to contact an attorney or anyone else. Officer testimony established that Groves only asked to contact his mother after he had already confessed. Additionally, the officers testified that they never threatened Groves.
Groves complains that the length of the arraignment’s delay caused an involuntary confession. The record shows that the arraignment was made in 24 hours. Article 15.17(a) at that time required an officer who has arrested a person on the basis of a warrant to take the accused before a magistrate “without unnecessary delay.” Act of May 29, 1989, 71st Leg., R.S., ch. 977, §1, 1989 Tex. Gen. Laws 4053-54 (amended 2001) (current version at Tex. Code Crim. Proc. Ann. art. 15.17(a) (Vernon Supp. 2003)); Yates v. State, 941 S.W.2d 357, 361 (Tex. App.—Waco 1997, pet. ref’d). The magistrate is required to advise the suspect of the charge against him and of his Miranda rights. Id. Unless the accused demonstrates a causal connection between a failure to comply with article 15.17(a) and his decision to confess, the confession is valid. Boyd v. State, 811 S.W.2d 105, 124 (Tex. Crim. App. 1991); Yates, 941 S.W.2d at 361. Even an unreasonable delay will not invalidate an otherwise valid confession if the accused was properly informed of his Miranda rights. Cantu v. State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992); Yates, 941 S.W.2d at 361. Groves admitted that he did receive the Miranda warnings and was fully aware of his rights. He admitted that he never asked to speak to an attorney, to terminate the interview, or to have an attorney appointed.
Additionally, it is uncontested that the investigators displayed photographs of the victim’s body. Groves attempts to draw comparison to Davis v. State, 308 S.W.2d 880, 882 (Tex. Crim. App. 1958), in which the defendant was forced to view a photograph of the victim, lying in a pool of blood, for twenty five minutes. The Court in Davis ultimately concluded that the defendant’s confession was involuntary, but the photograph was only one of several factors considered.
Groves testifies that he was promised a lesser included offense in exchange for his confession. For a confession to be rendered involuntary by promises from law enforcement, the accused must show that the promise was (1) positive; (2) of some benefit to the defendant; (3) made or sanctioned by someone in authority; and (4) of such an influential nature that a defendant would speak untruthfully in response thereto. Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991); Renfro v. State, 958 S.W.2d 880, 885 (Tex. App.—Texarkana 1997, pet. ref’d). In testimony, the police officers denied that any promises of leniency were made.
At the conclusion of the hearing, the court dictated the following findings into the record:
The court finds that the defendant was not coerced, threatened, or promised anything for talking with the officers. The defendant had access and necessities such as food, water, restroom facilities.
The Court finds that the manner in which the interrogation may have taken place over a period of seven hours, other than with the breaks and food and water and rest room, that it was not unduly long to cause someone to confess falsely.
Further, the Court finds that the fact that the defendant had voluntarily, before he was under arrest, spoken to the police voluntarily about this incident and, in fact, even given them a statement previously is additional indication that the defendant was willing to talk to the officers.
Further, the Court finds no causal connection between the confession and failure, if any, to take the defendant before a magistrate without unreasonable delay....And I find the defendant wasn’t – it was less than 24 hours before the defendant was taken before the magistrate; but nevertheless, I don’t see any causal connection because the defendant was informed of all his rights under Article 38.22 and the Code of Criminal Procedure and the laws of the United States.
The defendant waived those rights either ostensibly by actually doing so or by not stating that he wished to avail himself of any of those rights. And I further find that the statement was taken in compliance with the laws of Texas, laws of the United States; and the statement was voluntary and admissible.
As previously stated, we show almost total deference to trial court determinations based on credibility of the witnesses. Guzman, 955 S.W.2d at 89. The trial court’s determination rested upon the credibility of the witnesses and the totality of the circumstances. Accordingly, we find that the trial court did not err in admitting Groves’s written statement. We overrule Groves’s second point.
We affirm the judgment.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed March 26, 2003
Do not publish
[CRPM]