NUMBER 13-98-574-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
JOHNNY SINGLETARY
, Appellant,v.
THE STATE OF TEXAS
, Appellee.___________________________________________________________________
___________________________________________________________________
Before Justices Dorsey, Chavez, and Rodriguez
Opinion by Justice Dorsey
A jury found appellant, Johnny Singletary, guilty of capital murder, and the trial court assessed his punishment at life in prison. Appellant appeals by seven points of error. We affirm.
I. FactsOn June 7, 1997, Officer Andrew Lewis found Linda Lowenhaupt's body inside a car parked in Bay City, Texas. The next day appellant gave him a written confession in which he stated that he had taken a stick about two or three feet long to Lowenhaupt's home in Palacios. When she came out of the house he hit her in the head with the stick, put her in the car, took her purse from the house, and drove her car to Bay City. When he reached Bay City he and another person parked the car at a plastics plant. At this point Lowenhaupt was "gasping for air." He laid her down in the back seat and "had sex with her."
After the incident the police recovered a stick from the victim's residence. Afterwards appellant gave a second written confession to Lewis in which he stated that an ID officer showed him a stick which he recognized as the one he had used to hit the victim in the head.
The medical examiner, Dr. Parungao, testified that the victim died from a "crushed head . . . due to at least six blunt trauma to the head." His testimony showed that the victim could have lived for hours after receiving the injuries, but she could not have given consent to be driven from one place to another.
II. Motion to Suppress
By point one appellant asserts that the trial court erred by overruling his motion to suppress his written confessions. He argues that the printed warnings on the face of each confession differed from the warnings required by article 38.22, section 2(b) of the Texas Code of Criminal Procedure. Therefore the confessions were involuntary and inadmissible at his trial. The court held a pre-trial hearing on the voluntariness and admissibility of the confessions. After hearing testimony the court denied the motion and filed findings of fact and conclusions of law which stated that (1) prior to making his confessions appellant was warned of his rights as required by article 38.22, section 2, (2) appellant knowingly waived his right to an attorney, (3) appellant freely and voluntarily made the confessions, and (4) the warnings on the face of each confession were in substantial compliance with article 38.22.
The determination of whether a statement is voluntary is a mixed question of law and fact; i.e., an application of law to a fact question. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 1996). Appellate courts should afford almost total deference to trial courts' rulings on application of law to fact questions if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). An accused's written confession is inadmissible unless, prior to giving the confession, he received the statutorily prescribed warnings. Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 1996). Factual determinations made by the trial court at a hearing on a motion to suppress evidence shall not be disturbed on appeal if the record supports those findings. Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1996) (on reh'g).
Substantial Compliance
Article 38.22, section 2 requires that the accused be warned that:
(1) he has the right to remain silent and not make any
statement at all and that any statement he makes may be
used against him at his trial;
(2) any statement he makes may be used as evidence
against him in court;
(3) he has the right to have a lawyer present to advise
him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right
to have a lawyer appointed to advise him prior to and during
any questioning; and
(5) he has the right to terminate the interview at any
time;
Tex. Code Crim. Proc. Ann. art.38.22, § 2(a) (Vernon 1996).
In analyzing the requirements of article 38.22 the court of criminal appeals has held that "a warning which is only slightly different from the language of the statute but which conveys the exact meaning of the statute is sufficient to comply with the statute." Sosa v. State, 769 S.W.2d 909, 916 (Tex. Crim. App. 1989).
Appellant signed two written confessions that contained printed warnings on the face of the documents. In his first confession the text of subsections 1 and 2 of article 38.22(2)(a) appeared on the face of the document, though stated in synonymous terms, and contained more language than is required by the statute. Subsection (3) of the statute requires that an accused be warned that he has "the right to have a lawyer present to advise him prior to and during any questioning." The warning on the confession form stated that he "ha[d] the right to consult with a lawyer of [his] choice before or at any time during any questioning or statements he [made]." Subsections (3) and (4) of the statute also require that the accused be warned that he has the right to have a lawyer present, and if he is unable to employ a lawyer, he has the right to have a lawyer appointed. The confession form advised appellant that if he could not "afford" to hire a lawyer, he might "request and have a lawyer appointed for [him] by the proper authority, before or any time during any questioning or statements . . . without cost or expense to [him]." Finally, subsection (5) requires that an accused be warned of "the right to terminate the interview at any time." The confession form advised appellant that he could "stop answering any questions or making any statements that [he chooses]." Additionally the confession form contained other warnings and language not required by article 38.22(a), but which did not change the meaning of the statutorily required language.
In the second confession all warnings required by the statute were plainly stated on the face of the confession, and it contained little, if any, superfluous language. The exact wording of the warnings was slightly different. The only instance where the change in wording had any meaning at all is where the document states "if you cannot afford to hire a lawyer, one will be appointed for you." The statutorily required warning states that if an accused is "unable to employ a lawyer, [he has] the right to have a lawyer appointed. . . ."
We find that even though slightly different wording was used in the confession forms signed by appellant, both contained the warnings required by the statute. Because the warnings given to appellant conveyed the exact meaning of the statute we hold they are sufficient to comply with article 38.22, section 2(a). See Sosa, 769 S.W.2d at 916. Thus the record supports the court's finding that the warnings on the face of each confession were in substantial compliance with article 38.22.
VoluntarinessArticle 38.22, section 2(b) requires the accused, prior to and during the making of the statement, to knowingly, intelligently, and voluntarily waive the rights prescribed by article 38.22, section 2(a). Tex. Code Crim. Proc. Ann. art. 38.22, § 2(b) (Vernon 1996). Voluntariness is decided by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997).
Officer Lewis testified that appellant understood the rights printed on the face of each written confession and waived them. Lewis typed the confessions while appellant told him what had happened. Appellant did not ask Lewis to stop the interviews and did not request an attorney. Appellant read the confessions prior to signing them. Lewis testified that appellant was under no duress and was not coerced into confessing to the murder. Appellant testified that Lewis did not read him his rights, that he had asked for an attorney, and that he did not read the confessions. The trial court was within its authority to believe Lewis and disbelieve appellant. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). We hold that the record supports the trial court's findings that appellant did not request an attorney and that he freely and voluntarily gave the two written confessions. Thus the court did not abuse its discretion by overruling the motion to suppress. We overrule point one.
III. Sufficiency of the EvidenceBy point two appellant challenges the legal(1) and factual sufficiency of the evidence to support his conviction. In reviewing the legal sufficiency of the evidence we apply the test in Jackson v. Virginia, 443 U.S. 307 (1979); Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). In reviewing the factual sufficiency of the evidence we apply the test in Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
The application paragraph of the charge provided that the jury could convict appellant of capital murder if they found that he intentionally caused the death of Linda Lowenhaupt by hitting her in the head with a stick while he was in the course of committing or attempting to commit the offense of robbery, or kidnaping, or aggravated sexual assault of the victim. Appellant argues that the evidence does not show that he committed any of the underlying felonies. We disagree.
A person commits the offense of kidnaping when he knowingly or intentionally abducts another person. Tex. Penal Code. Ann. § 20.03(a) (Vernon 1994). "Abduct" means to restrain a person with intent to prevent his liberation by: (B) using or threatening to use deadly force. Tex. Penal Code Ann. § 20.01(2) (Vernon Supp. 2000). "'Restraint' means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Restraint is 'without consent' if it is accomplished by: (A) force. . . ." Tex. Penal Code Ann. § 20.01(1) (Vernon Supp. 2000).
The evidence was that appellant first struck the victim in the head with a large stick rendering her unconscious, put her in a car, and drove her to Bay City. This constituted the abduction of her by restraining her with the intent to prevent her liberation by using deadly force against her. He restricted the victim's movements without her consent by using force against her. See Tex. Penal Code Ann. § 20.01(2) (Vernon Supp. 2000). The victim was alive when appellant reached Bay City because she was gasping for air. The medical evidence showed that she could have lived for hours after the attack but that she could not have consented to being driven to Bay City. The evidence sufficiently shows that appellant intentionally killed Lowenhaupt while in the course of kidnaping her. We hold that a rational jury could have found the elements of capital murder beyond a reasonable doubt. We also hold that the verdict is not so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. We overrule point two.
IV. Admission of EvidenceBy point three appellant asserts that the trial court erred by admitting in evidence State's exhibits 26 (oral, anal, and vaginal swabs taken from the victim during the autopsy) and 26-A (slides made from those swabs). He argues that the State did not establish a chain of custody for these exhibits because the medical examiner, Dr. Parungao, could not identify who took the swabs of the victim. Dr. Parungao testified that either he or his assistant, under his supervision, took the swabs. He also testified that the slides were made at his direction. His testimony was that all of this evidence was recovered during the autopsy and maintained at the medical examiner's office.
Without evidence of tampering most questions concerning care and custody of a substance go to the weight and not the admissibility of the evidence. Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997). We reverse a trial court's decision to admit evidence over an objection to the predicate when we find the trial court abused its discretion. Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984). Juhasz v. State, 827 S.W.2d 397, 402 (Tex. App.--Corpus Christi 1992, pet. ref'd). The Texas Rules of Evidence provide: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Tex. R. Evid. 901(a).
In the instant case either Dr. Parungao or his assistant, under his supervision, took the swabs from the body. The slides were made under his direction. Although Dr. Parungao could not recall who took the swabs of the body the record does not show that anyone tampered with or altered these exhibits, and appellant does not challenge the reliability of this evidence. We hold that the court did not abuse its discretion by admitting these exhibits in evidence. We overrule point three.
By point four appellant asserts that the trial court erred in admitting the testimony of the State's expert, Laura Schille, a hair-comparison analyst with the Texas Department of Public Safety. She compared the victim's hair to the hair removed from the stick recovered at the victim's residence. Appellant sought to prevent the jury from hearing the results of this comparison.
Rule 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702. The trial court's task in assessing admissibility under Rule 702 is to determine whether the scientific evidence is sufficiently reliable and relevant to help the jury in reaching accurate results. Hartman v. State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997); Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). To be considered reliable, evidence based on a scientific theory must satisfy three criteria: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Hartman, 946 S.W.2d at 62; Kelly, 824 S.W.2d at 573. The Kelly Court also provided a list of non-exclusive factors that could affect a trial court's determination of reliability. These are: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573.
Before novel scientific evidence may be admitted under Rule 702 the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant. Kelly, 824 S.W.2d at 573.
In this case the trial court held a hearing to determine the admissibility of Schille's testimony. Schille testified that she had received her training in hair-comparison analysis at the DPS headquarters in Austin. In order to become a qualified hair-comparison analyst she had to complete DPS training in forensic-hair comparison, work on various hair-comparison cases under direct supervision, and take several proficiency tests. Schille explained how she tested the hair found on the stick to the hair taken from the victim's head. She performed the test at the Houston DPS lab, which was accredited by the American Society of Crime Laboratory Directors (ASCLD). Schille testified that within the scientific community hair-comparison analysis is considered an accepted science and that there is "quite a bit of publication" on this topic. She gave the names of several journals which published articles on this topic. She said that there are hair-comparison analysts state wide, nation wide, and internationally. Persons performing hair-comparison analysis follow the exact, same protocols (test procedures). When making the hair-comparison analysis in this case she followed the same protocols that she had used in other cases. Schille said that the protocols she used are the same as those used by the FBI. These protocols were reviewed when ASCLD performed its accreditation of the Houston DPS lab.
After the hearing the court made these findings: (1) the analysis of the hair taken from the stick was probative of the material issue in the case; (2) the evidence is relevant to matters before the court; (3) the probative value of the evidence outweighed its prejudicial effect; and (4) Schille's testimony established by clear and convincing evidence that the specialized knowledge of hair analysis was long established, accepted in the scientific community, discussed in scientific literature, and had long-established protocols to aid the jury in determining the fact issue in this case. The court denied the motion to exclude the evidence of hair analysis and allowed the State to present the evidence to the jury.
Schille testified before the jury that in her opinion the hair recovered from the stick "possesses the similar microscopic characteristics" to the victim's hair.
ReliabilityThe State satisfied the three criteria stated in the Hartman-Kelly decisions. The proponent of the evidence testified that the underlying scientific theory is valid and that the technique applying the theory is valid; that the scientific community considers hair-comparison analysis an accepted science; and that all hair-comparison analysts, including Schille, use the same protocols when performing hair analysis. The testimony was that Schille properly applied the technique in this case. The protocols she used to perform the hair analysis are the same as those used by other analysts. There was evidence of Schille's qualifications, experience, and skill to perform the test, the existence of literature supporting the underlying scientific theory and technique, the availability of other experts to test and evaluate the technique, and the clarity with which the underlying scientific theory and technique can be explained to the court.
RelevancyEven if the proponent has satisfied the Kelly-Hartman criteria the trial court may exclude the evidence if it determines that the probative value is outweighed by some factor identified in Rule 403.(2) The hair-comparison analysis is probative because it helps to corroborate the confession and shows the similarity of the hair on the stick to the victim's hair. The evidence is not unfairly prejudicial, does not confuse the issues, does not mislead the jury, and is not cumulative. We hold that the evidence supports the trial court's findings and that the court did not abuse its discretion by admitting Schille's testimony. We overrule point four.
By point five appellant asserts that the trial court erred in admitting his blood specimen in evidence because the person who drew the blood was not qualified under section 724.017(a) of the Texas Transportation Code. This section provides that: "Only a physician, qualified technician, chemist, registered professional nurse, or licensed vocational nurse may take a blood specimen at the request or order of a peace officer under this chapter. The blood specimen must be taken in a sanitary place." Tex. Transp. Code Ann. § 724.017(a) (Vernon 1999) (emphasis added). However a reading of Chapter 724 reveals that it applies to alcohol-related offenses and does not control the drawing of blood specimens for all purposes. See, e.g., Tex. Transp. Code Ann. §§ 724.002, 724.011 (Vernon 1999).
The evidence showed that pursuant to a search warrant Ola Voris drew appellant's blood at the Matagorda General Hospital in the presence of Diane Rieger, an identifications officer for the Bay City Police Department. Voris placed the blood in vials and gave them to Rieger, who took the blood to the Austin DPS lab. Appellant does not complain that the procedure used to draw his blood was flawed or that his blood specimen was tainted during this procedure. We hold that the trial court did not abuse its discretion by admitting the blood specimen in evidence. We overrule point five.
V. Jury MisconductBy points six and seven appellant asserts that the trial court abused its discretion in denying his motion for new trial based upon evidence of juror misconduct. Appellant filed a motion for new trial which included three affidavits by juror Levander Goodman. His first affidavit states that during deliberations a lady told him "that there was another case involving" appellant. In his second affidavit he stated that he was not "coerced" into deciding that appellant was guilty; rather, he weighed the evidence against appellant. In his third affidavit Goodman stated that during a break in the deliberations the foreman asked him what he could do to get him to vote guilty. Goodman told him that he needed to look at the evidence. When they resumed deliberations the foreman said that the State had spent $150,000 on this trial. Goodman told him to "stop." Goodman stated that no one had forced him to vote guilty.
The rules of appellate procedure list specific grounds for which a new trial must be granted. These grounds include, "when the jury has engaged in such misconduct that the defendant did not receive a fair and impartial trial." Tex. R. App. P. 21.3(g). Whether misconduct occurred is a decision for the trial court, and we will not disturb that ruling absent an abuse of discretion. Short v. State, 995 S.W.2d 948, 954 (Tex. App.--Fort Worth 1999, pet. ref'd). See Hernandez v. State, 938 S.W.2d 503, 507 (Tex. App.--Waco 1997, pet. ref'd). A new trial is not required every time a juror mentions something which is not supported by evidence adduced at trial. Cuellar v. State, 943 S.W.2d 487 (Tex. App.--Corpus Christi 1996, pet. ref'd).
In the instant case appellant's affidavits are inconclusive. The trial court could have reasonably concluded that notwithstanding the assertions in his affidavits Goodman was not coerced into voting to convict by any conduct of other jury members. Therefore the trial court did not abuse its discretion in denying appellant's motion for new trial. We overrule points six and seven.
We affirm the trial court's judgment.
J. BONNER DORSEY,
Justice
Do not publish
.Tex. R. App. P. 47.3(b).
Opinion delivered and filed
this 13th day of July, 2000.
1. Appellant asserts that the trial court erred by denying his motion for a directed verdict. A challenge to the trial court's ruling on a motion for directed verdict is treated as a challenge to the legal sufficiency of the evidence. See Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (citing Madden v. State, 799 S.W.2d 683 (Tex. Crim. App. 1990)).
2. Rule 403 provides that the court may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403.