Affirmed and Memorandum Opinion filed May 27, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-02-00858-CR
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MARK SORRELL PORTER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 879,552
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M E M O R A N D U M O P I N I O N
In six issues, appellant Mark Sorrell Porter challenges his conviction for capital murder, alleging (1) the trial court erred in failing to remove a juror in violation of both the federal and state constitutions; (2) the trial court erred in admitting appellant=s audiotaped and videotaped statements because the statements were made involuntarily in violation of the federal constitution; and (3) the evidence was legally and factually insufficient to show appellant intended to cause the death of the complainant. We affirm.
I. Factual and Procedural Background
At approximately six in the morning on October 4, 1992, Houston Police Department Officer C.L. Hall received a call from dispatch about a Asuspicious event@ in southwest Harris County. When he arrived, he saw a Mercedes and a Honda in the middle of the street in what appeared to be an accident. He approached the Mercedes and observed a bullet hole in the driver=s side door and a man slumped in the seat, apparently dead. The deceased was later identified as Charles Clark, a newspaper carrier for the Houston Post. The doors and windows to the Mercedes were closed except for the sunroof. The Honda appeared to have been hit. Based on their observations, the police officers surmised that the shooting had taken place in the 5600 block of Greencraig and the complainant=s Mercedes had travelled backwards down to the end of the 5700 block, hitting parked vehicles and meandering into front yards before coming to rest where authorities eventually found it. Officers recovered a cartridge case from a .380 semiautomatic pistol in the middle of the street in the 5600 block.
Nearly nine years later, in June of 2001, Officer Tony Huynh received a phone call from appellant, stating he wanted to come to the police station and discuss the Clark murder. Officers were dispatched to bring appellant back to the station while Officer Huynh remained on the phone with him. Once at the station, appellant and Officer Huynh entered an interview room and Officer Huynh obtained an audiotape recorder. According to Officer Huynh=s testimony, he read appellant his rights and appellant indicated that he understood them. After speaking with appellant, Officer Huynh attempted to locate the case file, but due to computer problems caused by Tropical Storm Allison, he was unable to do so. His sergeant made the decision to place appellant in jail until information on the case could be found. Sergeants Waymon Allen, Jr. and Boyd Smith took over the search for the information on the next shift. After listening to the recording, Sergeant Allen became concerned about the quality of the audiotape. Sergeant Allen and Sergeant Jim Binford, who had worked on the case in 1992, went to the jail where appellant was being held to inquire whether appellant would provide another statement. According to Sergeant Allen=s testimony, Sergeant Binford read appellant his rights and appellant again indicated that he understood them. The officers then took appellant before a magistrate judge, where appellant was read his rights a third time. Afterward, appellant and the officers drove back to the police station. There, appellant was read his rights a fourth time before he provided the videotaped statement.
Appellant was charged by indictment with the offense of capital murder for intentionally causing the death of the complainant while in the course of committing or attempting to commit a robbery. See Tex. Pen. Code Ann. ' 19.03(a)(2) (Vernon 2003). The jury charge included the offenses of murder and capital murder, and the jury found appellant guilty of capital murder. The trial court assessed punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division.
II. Issues Presented
(1)B(2) Did the trial court err by failing to remove a juror after discovering the juror did not reveal information during voir dire?
(3)B(4) Did the trial court err in admitting appellant=s audiotaped and videotaped statements that appellant claims were made involuntarily while he was allegedly in custody?
(5)B(6) Was the evidence legally and factually sufficient to show appellant had the intent to cause the death of the complainant at the time of the alleged offense?
III. Analysis
A. Did the trial court err by failing to remove a juror after discovering the juror did not reveal information during voir dire?
In his first two issues, appellant contends the trial court erred by failing to remove a juror when it was discovered that the juror did not reveal during voir dire that (1) he recognized the complainant as the husband of one of the teachers at the school his daughter attended, and (2) he went to the complainant=s funeral. Appellant argues that, as a result, the trial court impeded his counsel=s right to conduct voir dire and to intelligently exercise peremptory strikes in violation of the federal and state constitutions.
During voir dire, the trial court inquired whether anyone on the jury panel recognized the name of the complainant Charles T. Clark. From the trial court=s response, it appears no one replied affirmatively. Later in voir dire, appellant=s trial counsel inquired whether anyone on the jury panel knew any of the witnesses scheduled to testify. Again, no one responded affirmatively. Following the State=s opening statement and before the prosecutor called the State=s first witness, juror John Eberle interrupted the trial court. The trial court asked that he approach the bench, and with counsel present, Eberle notified the trial court that he thought he recognized the names of the complainant and his wife because his daughter went to a high school where the husband of one of the teachers was killed while on a paper route in a Mercedes Benz.[1] The trial court then inquired whether the complainant=s wife taught Eberle=s daughter. Eberle could not recall, but thought that the complainant=s wife may have taught his daughter at some point while she was in high school. He stated that he never heard anything further about the case and did not know the complainant or his wife other than seeing the wife at the funeral. Eberle had driven his daughter and some of her friends to the funeral nearly a decade before.
Appellant=s trial counsel asked Eberle what effect such knowledge would have on him serving as a juror. He stated he would try to listen to the facts and would not give more credibility to Mrs. Clark=s testimony because he knew who she was. After the juror returned to his seat, appellant=s trial counsel stated that he would have used one of his peremptory strikes on Eberle had he been aware of Eberle=s knowledge during voir dire. The trial court postponed hearing further objections from appellant=s trial counsel until the following day. The State presented several of its witnesses in the meantime.
The next day, before testimony resumed, the trial court conducted a discussion with Eberle outside the presence of the rest of the jury. Both the trial court and appellant=s trial counsel inquired whether Eberle thought his knowledge of the complainant and his wife would influence him. Eberle responded that he would try his best, reiterating that he did not know what happened in the case and had only escorted his daughter and three or four other girls from her class to the funeral. Appellant=s trial counsel objected to Eberle remaining on the jury and requested the alternate juror take his place. The trial court overruled the objection. Appellant=s trial counsel renewed his objection when the trial court excused the alternate juror as the jury retired for deliberations. The trial court again overruled the objection.
If a juror withholds material information during the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury. See Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995) (per curiam). The Court of Criminal Appeals addressed a situation similar to the one before this court in Decker v. State. In Decker, after the jury had been selected and sworn, a juror recognized the complainant as a co-worker. See 717 S.W.2d 903, 906 (Tex. Crim. App. 1983) (op. on reh=g). The trial court refused to allow appellant to peremptorily strike the juror so that he could be replaced. See id. The Court of Criminal Appeals found the record showed the juror had not intentionally given false information during the voir dire examination, but only realized that he knew the complainant after seeing him. See id. at 907. In addition, the Decker court found the undisclosed information was not material in that the juror=s relationship with the complainant was only as a work acquaintance, and the two men had never socialized together or had any type of friendship. Id. Thus, the court concluded there was no showing that the relationship had any potential for bias or prejudice by the juror. See id. at 907B08.
Here, the trial judge asked the jury panel whether they knew the complainant. Appellant=s trial counsel then inquired whether anyone on the panel knew any of the witnesses, including the complainant=s wife. Based on juror Eberle=s statements to the trial court, the record does not indicate Eberle was intentionally withholding information from appellant=s trial counsel during voir dire when he failed to respond. Rather, he did not realize he knew the complainant and his wife until the State provided more facts about the victim and the crime, which occurred ten years before trial. Eberle came forward immediately after the State made its opening statement. The record also shows Eberle did not have a personal relationship with the complainant or the complainant=s wife. He admitted knowing who they were because the complainant=s wife taught at his daughter=s school, and Eberle explained that he attended the funeral within that context. He also stated that he was not aware what happened in the case beyond his initial knowledge of it. Although Eberle prefaced questions about whether he would be influenced by this information with the fact that he would Atry@ not to let it influence him, he did state that he would not weigh the credibility of the witnesses any differently because of his knowledge of the complainant and his wife.
Under these circumstances, where the record does not show Eberle intentionally withheld material information, the trial court did not err by overruling defense counsel=s objections to juror Eberle=s presence on the jury. Accordingly, we overrule appellant=s first and second issues.
B. Did the trial court err in admitting appellant=s audiotaped and videotaped statements that appellant claims were made involuntarily while he was allegedly in custody?
In his third and fourth issues, appellant contends the trial court erred in admitting his audiotaped and videotaped statements because the statements were allegedly made involuntarily while appellant was in custody. Appellant alleges the trial court=s error violated his federal constitutional right to due process.
The State contends appellant has not preserved the issue of voluntariness for appellate review because he did not raise that ground for excluding the statements with the trial court. Appellant filed a motion to suppress on June 22, 2001, seeking to exclude any evidence seized during an alleged illegal search and seizure. The motion did not specifically mention the statements. On the first day of trial, the court held a hearing regarding appellant=s audiotaped and videotaped statements.[2] Appellant testified that he had been subjected to mental manipulation while in prison which caused him to do things against his will. His father testified to appellant=s mental instability and stated that he thought appellant=s psychotic behavior caused appellant to confess to police. The trial court also heard testimony from the officers involved in taking appellant=s statements. At the conclusion of the hearing, the trial court admonished the prosecutor to avoid discussing anything on the tapes related to other offenses committed by appellant, and to avoid divulging the location of codefendants and charges brought against them. With those limitations, the trial court reserved further ruling on the tapes until he had reviewed them.
During the trial, outside the presence of the jury, the trial court again took up the issue of the audiotaped and videotaped statements. Appellant=s trial counsel objected to the admission of oral statements made by appellant to Officer Huynh on the basis that such statements did not comply with article 38.22.[3] Appellant=s trial counsel then deduced that the audiotaped statement was the fruit of an inadmissible oral statement. The State argued article 38.22 did not apply because appellant was not in custody at the time he made the statements. The trial court ruled both the audiotaped and the videotaped statements were admissible because appellant received the proper warnings on both tapes and voluntarily waived his rights before freely giving the statements. The trial court also found appellant to be sane at the time he gave the statements.
The record does not contain a motion or objection that specifically raises the issue of voluntariness, but the ground seems apparent from the testimony at the confession hearing, and the trial court ruled on the issue expressly. See Tex. R. App. P. 33.1(a)(1)B(2). Assuming appellant has preserved the complained-of error on this issue, we find no merit in his claim.
We review the trial court=s decision on a motion to suppress under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Whether a confession is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Appellate courts should give almost absolute deference to trial court determinations of historical fact supported by the record, especially when those findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate courts should afford the same amount of deference to trial court rulings on mixed questions of law and fact when the resolution of those ultimate issues turns on an evaluation of credibility and demeanor. Id. However, an appellate court may review de novo mixed questions of law and fact that do not fit within that category. Id.
Article 38.21 of the Texas Code of Criminal Procedure requires the statement to have been Afreely and voluntarily made without compulsion or persuasion.@ Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). In determining the question of voluntariness, a court should consider the totality of circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A defendant=s mental deficiency alone is not determinative of the voluntariness of the confession, but is only one factor to be considered. See Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). In considering the impact of a defendant=s mental deficiency, the issue becomes whether the defendant=s mental impairment rendered him incapable of understanding the meaning and effect of his confession. See Cornealius v. State, 870 S.W.2d 169, 175 (Tex. App.CHouston [14th Dist.] 1994), aff=d, 900 S.W.2d 731 (Tex. Crim. App. 1995). Further, absent evidence of police coercion related to the taking of the confession, a defendant=s mental condition alone should not render the statement involuntary on constitutional grounds. See Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).
In this case, at the confession hearing, the State offered testimony from Officer Huynh, who took appellant=s audiotaped statement, and Sergeant Allen, who took appellant=s videotaped statement. Both officers testified that appellant was calm and cooperative. They stated that nothing in appellant=s demeanor caused them to believe he had a mental problem. Officer Huynh advised appellant of his rights on the audiotape before appellant made the statement and appellant indicated he understood those rights. After the statement, Officer Huynh allowed appellant to make a sandwich in the officers= breakroom and watch television in the family room. Appellant was held in the jail temporarily until officers on the next shift could gather more information about the case. Sergeant Allen and another officer went to the jail to inquire whether appellant would be willing to provide another statement. Prior to giving the videotaped statement, appellant was read his rights three more times, including once by a magistrate judge. Appellant and his father, in turn, testified to appellant=s mental condition.
With no evidence in the record of police coercion and given the conflicting testimony concerning appellant=s mental state at the time he made the statements, we find the trial court did not abuse its discretion in finding the statements to have been voluntarily made. Accordingly, we overrule appellant=s third and fourth issues.
C. Was the evidence legally and factually sufficient to show appellant had the intent to cause the death of the complainant at the time of the alleged offense?
In his fifth and sixth issues, appellant contends the evidence is legally and factually insufficient to show he intended to cause the death of the complainant at the time of the murder. Specifically, appellant argues his audiotaped and videotaped statements were the only evidence offered at trial to demonstrate any intent, and while the statements indicate appellant=s intent to rob the complainant, they do not clearly reflect appellant=s specific intent to cause the death of the complainant.
In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on appeal is not whether we, as a court, believe the State=s evidence or believe that appellants= evidence outweighs the State=s evidence. Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the witnesses= testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).
As applied to appellant=s case, a person commits the offense of capital murder if the person commits murder as defined under section 19.02(b)(1) and the person intentionally commits the murder in the course of committing or attempting to commit robbery. See Tex. Pen. Code Ann. ' 19.03(a)(2). Murder is defined under Texas Penal Code section 19.02(b) as intentionally or knowingly causing the death of an individual. ' 19.02(b)(1). The indictment in appellant=s case charged him with intentionally causing the death of the complainant by shooting the complainant with a firearm while in the course of committing and attempting to commit a robbery.
Intent is a fact question for the jury and is almost always proven through evidence of the circumstances surrounding the crime. See Childs v. State, 21 S.W.3d 631, 635 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). Intent may be inferred from words and conduct of the accused. Id. The jury may infer the intent to kill from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. See Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992). Furthermore, where a deadly weapon is fired at close range, and death results, the law presumes an intent to kill. Childs, 21 S.W.3d at 635.
Here, the jury heard the audiotaped statement made by appellant to Officer Huynh and the videotaped statement taken by Sergeant Allen. In both statements, appellant explained that when the complainant would not give appellant a newspaper after he asked for one three times, appellant cocked a .380 semiautomatic weapon and placed it inside the sunroof of the complainant=s vehicle. According to appellant=s statements, the complainant attempted to drive away and appellant ran alongside the car, firing shots. Appellant=s recounting of these events was corroborated by testimony from Sergeant Binford, who stated that the trajectory of the bullet indicated the shooter was next to the vehicle shooting through the sunroof. On the videotape, appellant claims that his intent was to rob the complainant and that he was only shooting to wound him. Based on all of the evidence before the jury, a rational trier of fact could have found appellant had the intent to cause the death of the complainant beyond a reasonable doubt. Accordingly, we overrule appellant=s fifth issue challenging the legal sufficiency of the evidence to support the intent to cause the complainant=s death.
When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7, ___ S.W.3d ___, ___ (Tex. Crim. App. Apr. 21, 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a- reasonable-doubt standard could not have been met. Id. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at *4. Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).
When reviewing a factual-sufficiency challenge, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Appellant makes the same arguments in his factual-sufficiency challenge as in support of his legal-sufficiency challenge. After reviewing all the evidence without the prism of Ain the light most favorable to the prosecution,@ we cannot say the verdict should be set aside because it is Aso contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Johnson, 23 S.W.3d at 6B7. Accordingly, we overrule appellant=s sixth issue.
Having overruled all of appellant=s issues, we affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed May 27, 2004.
Panel consists of Justices Edelman, Frost, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The record reads as follows:
Juror Eberle: Yesterday when you asked us if we knew any of the people, witnesses or anything, I didn=t think I did, but after your description, my daughter went to Holy Ghost High School and there was a teacher named Ms. Clark. Her husband was killed. He was driving a Mercedes Benz and he was doing a paper route, and I went to the funeral with them. He was a black man, about 45 years old, 50 years old. I am just telling you this because I had this situation. I apologize. I had no idea who it was.
[2] The record is not clear as to the purpose of the hearing. However, both the prosecution and appellant=s trial counsel refer to it in the record as the Aconfession hearing.@
[3] The record is not clear as to the statements to which appellant=s trial counsel is referring. It appears trial counsel was objecting to Officer Huynh supplementing the audiotaped statement with his recollection of what appellant told him.