NOS. 12-04-00068-CR
12-04-00069-CR
12-04-00070-CR
12-04-00071-CR
12-04-00072-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
PATRICK RANDALL POSTON, § APPEAL FROM THE THIRD
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Following a jury trial, Patrick Randall Poston (“Appellant”) was convicted of escape (12-04-00068-CR), three counts of aggravated robbery (12-04-00069-CR), unauthorized use of a motor vehicle (12-04-00070-CR), burglary of a building (12-04-00071-CR), and theft (12-04-00072-CR). The jury sentenced Appellant to twenty years of imprisonment and assessed a $5,000.00 fine for the theft conviction, forty years of imprisonment and a $2,500.00 fine on each count of aggravated robbery, and two years of imprisonment on the unauthorized use of a motor vehicle, burglary of a building, and theft convictions. Appellant raises one issue on appeal. We affirm.
Background
On March 7, 2002, Appellant was indicted for the offenses of escape, aggravated robbery, unauthorized use of a motor vehicle, burglary of a building, and theft of a firearm. On April 8, the State filed a “Notice of Joinder,” thereby consolidating all of the indicted offenses for one trial because they arose out of the same criminal episode. On August 16, Appellant filed a motion to suppress any post-arrest statement he made to law enforcement officers, arguing that the statements were “involuntary, coerced, and enticed” from Appellant. The motion also stated that Appellant was deprived of his right to counsel and that he did not make a knowing and intelligent waiver of that right.
Appellant pleaded “not guilty” to the offenses and proceeded to a jury trial. Following the presentation of evidence and arguments, the jury convicted Appellant on each indicted offense and sentenced him to twenty years of imprisonment and assessed a $5,000.00 fine for the theft conviction, forty years of imprisonment and a $2,500.00 fine on each count of aggravated robbery, and two years of imprisonment on the unauthorized use of a motor vehicle, burglary of a building, and theft convictions.
On appeal, Appellant challenges each conviction on the basis that the post-arrest statements he made to law enforcement officers were obtained by coercion and were not voluntarily given.
Motion to Suppress
After Appellant’s initial arrest, he wrote a statement detailing his escape from the Anderson County Jail and his subsequent efforts to evade law enforcement personnel. The statement also detailed Appellant’s burglary of a bus station, where he stole a handgun, cigarettes, soft drinks, a lighter, and cash. At the top of the statement, the following warnings appear:
___(1) You have the right to remain silent and not make any statement at all, and any statement you make may be used against you at your trial.
___(2) Any statement you make may be used as evidence against you in court.
___(3) You have the right to have a lawyer present to advise you prior to and during any questioning.
___(4) If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning.
___(5) You have the right to terminate the interview at any time.
___(6) You knowingly, intelligently, and voluntarily waive these rights.
Appellant wrote “P.P.,” his initials, in the blank space that appears before each warning. He also noted the date and time of the statement at the bottom of each page and signed his name. At the end of the statement, Appellant wrote, “Everything contained in this statement was my planning and I recieved [sic] no assistance from anyone at anytime, nor did anyone know of my plans contained in this statement.” Appellant contends that he did not waive the rights contained in the statement knowingly, intentionally, and voluntarily, but waived them as a result of coercion and intimidation. Standard of Review and Applicable Law
When an appellant challenges the voluntariness of his confession, we review the trial court’s
ruling under an abuse of discretion standard. See Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App. 2000). The trial court is the sole judge of the credibility of the witnesses at a suppression hearing and of the weight to be given their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). “The determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition.” Id. (quoting Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995), rev’d in part on other grounds sub nom., Penry v. Johnson, 532 U.S. 782, 804, 121 S. Ct. 1910, 1924, 150 L. Ed. 2d 9, 30 (2001)).
Article 38.22, section 2(a) of the Texas Code of Criminal Procedure provides that a written statement made in response to custodial interrogation is not admissible “unless it is shown on the face of the statement that . . . the accused, prior to making the statement, either received from a magistrate . . . or received from the person to whom the statement is made [the required statutory warnings].” Tex. Code Crim. Proc. Ann. art. 38.22, § 2(a) (Vernon Supp. 2004). This requirement is satisfied if the warnings are read to the accused before he signs the statement, even if the statement is written before the warnings are read. Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996).
The Evidence Adduced at the Hearing on the Motion to Suppress
Brian Wharton (“Wharton”), a sergeant with the Palestine Police Department, testified that he spoke to Appellant at the Grapeland Police Department. Wharton said that when he asked Appellant if he wanted to give a statement, Appellant told him he did and that he later wrote out a statement. Wharton testified that the procedure he used was to
present them with the blank form which has the Miranda warnings affixed to the top of it. I ask them to read along with me as I read the warnings to them, read each warning one at a time, tell them if you understand the warning, place your initials by it, and we go all of the way through the warning with them one at a time. And at the end, “Do you understand your warnings and are you willing at this time to give a statement?” And they indicated with their initials again that they do understand it, [and] are willing to provide that statement.
Before he gave Appellant the form, Wharton read over all of the warnings with Appellant, and Appellant understood all of them. Appellant also initialed each warning with his initials, “P.P.” He stated that after he presented Appellant with the blank form, Appellant sat down and wrote out his statement.
At the time Appellant was writing his statement, Wharton, Texas Ranger Rudy Flores, and Captain Gregg Taylor were also present in the room. Wharton said that they were wearing firearms at the time, but that wearing them was normal. When he asked Appellant to give the statement, Appellant said that he would comply, and he denied that there was anything said by him, Ranger Flores, or Captain Taylor to coerce Appellant into writing the statement. Wharton also stated that they did not threaten, promise anything to Appellant in exchange for a written statement, or tell Appellant that if he gave a statement then the State would “go easier” on him.
On cross-examination by Appellant’s counsel, Wharton denied that Appellant told him that he did not want to talk about what had happened. He did not tape any conversations he had with Appellant, nor did he take any notes during his conversations with Appellant. Wharton denied taking Appellant to “the back room [where] he hit the wall,” and he did not remember any other officers saying, “Oh, give me a shot at him.” He also denied not giving Appellant his Miranda warnings prior to any discussions.
Appellant also testified at the hearing and stated that when he arrived at the Grapeland Police Department, he was placed in a room where, at a minimum, three to four law enforcement officers were present at all times. He said that the officers were making threats to him, saying that they were talking about “whipping [his] ass” and that if he did not give a statement, he “was going to begin to look like pictures that [he] had seen in the media.” Appellant also stated that the officers were saying, “Call me when the fun starts” and “I never saw a man outrun a bullet.” Therefore, in Appellant’s mind, he was afraid that he was “going to be found dead, shot in the back outside of Grapeland P.D. with a charge of attempted escape.” He felt that the only way for him not to be harmed was to talk to the officers and give a statement.
Appellant further testified that when Wharton came to talk to him, he took him “to the same back office where [he] had received [his] Miranda from the judge.” In the next sentence of his testimony, however, Appellant said that he had not received any warnings from “the judge” prior to talking with Wharton. Appellant stated that when he first talked to Wharton, he did not have anything to say to him or to talk about and that he had not received any Miranda warnings from anyone prior to talking with Wharton. He stated that Wharton then left for about twenty minutes, came back, and took him to another room. Before he sat down in the room, Appellant testified that someone in the room pushed him in the lower back with a foot and that the force pushed Appellant into a wall. Appellant said that one of the officers then said that he “needed to watch [his] step.” He stated that he sustained a “knot” on his head as a result of the push. At that time, he said, he was afraid of “not making it back to Anderson County.”
Appellant testified that when he sat down, he told Wharton he would talk about some things, but not others, and that he was in fear and under pressure to begin talking to Wharton. He said that Wharton taped the conversation they had and that after they talked, he was placed back in the room with the other law enforcement officers. Appellant stated that while he was in that room, the officers were threatening him, telling him about things that happen to individuals while in custody. At that point, Appellant felt that his life was still in danger and that harm was imminent.
Appellant said that Wharton came back into the room, handed him a witness statement form, and told him to start writing. He also stated that Wharton did not read him any warnings prior to the time Appellant wrote the statement and that he did not receive sufficient time to read the rights prior to initializing them on the statement. He then wrote the statement because he was afraid and felt like he had no choice. He stated that he would not have written the statement but for the conduct of the officers.
On cross-examination, Appellant acknowledged that the officers were present in the first room he was taken to for security purposes. He also stated that Wharton made physical threats to him, but no verbal threats.
The State then recalled Wharton to testify, and he denied making any threats to Appellant or hearing any other officers threaten Appellant. He also denied pushing Appellant in the back with his foot and telling him to “watch his step.” Finally, he stated that at no time did he do anything or hear any other officer coerce, threaten, or force Appellant to talk to him.
Neither side offered any other evidence. The court denied Appellant’s motion to suppress, expressly finding that Appellant’s statement was voluntarily given because the waivers were knowingly and intelligently executed.
Analysis
Appellant testified that he was threatened by law enforcement officers after his arrest and that those threats coerced him into writing a statement; however, Sergeant Wharton denied that Appellant was threatened by him or any other officer. Wharton further testified that Appellant waived his rights knowingly, intelligently, and voluntarily, and that Appellant wrote the statement after acknowledging his rights in writing. The trial court, as the sole judge of the credibility of the witnesses, chose to believe Wharton’s account of the post-arrest events surrounding Appellant’s written statement when it denied Appellant’s motion to suppress. Based on the totality of the circumstances surrounding the acquisition of Appellant’s statement, we hold that the requirements of Article 38.22, section 2 have been satisfied and that the trial court did not abuse its discretion by denying Appellant’s motion to suppress. Appellant’s sole issue is overruled.
Disposition
The judgment of the trial court is affirmed.
SAM GRIFFITH
Justice
Opinion delivered September 8, 2004.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(DO NOT PUBLISH)