Reversed and Remanded and Memorandum Opinion on Remand filed January 27, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-00-00128-CR
____________
ROBERT JUSTIN KAUPP, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 803,792
M E M O R A N D U M O P I N I O N ON R E M A N D
Appellant Robert Justin Kaupp was convicted by a jury of murder and sentenced to fifty-years= confinement. On original submission, appellant complained that the trial court erred in (1) denying his motion to suppress and admitting his confession into evidence; and (2) overruling his objections to what he claims was improper jury argument by the State. Finding no error, we affirmed the judgment of the trial court. On petition for discretionary review, the Supreme Court of the United States determined that appellant was illegally arrested and that the confession should have not been admitted into evidence at trial. See Kaupp v. State, 538 U.S. 626, 123 S.Ct. 1843, 1847-48 (2003). It vacated our June 7, 2001 opinion and remanded the case to this court for proceedings consistent with its opinion.[1] Id. at 1848. We now reverse the trial court=s judgment and remand this matter for a new trial.
Fourteen‑year‑old Destiny Thetford, the complainant, disappeared on January 13, 1999. In the course of its investigation, the Harris County Sheriff=s Department learned that Nicholas Thetford, the complainant=s 19‑year‑old half‑brother, had a sexual relationship with the complainant, and that Thetford and appellant were together on the day the complainant disappeared. On January 26, both Thetford and appellant came to the sheriff=s department offices. Appellant was cooperative and allowed to leave; Thetford, however, was interviewed at length and given a polygraph examination, which he failed (his third such failure). Thetford eventually admitted to stabbing the complainant and placing her body in a drainage ditch. Additionally, Thetford implicated appellant as having participated in the stabbing and hiding of the complainant=s body.
Immediately after obtaining a written statement from Thetford, detectives attempted, but were unable to, obtain a warrant for appellant=s arrest. Detective Gregory Pinkins testified that he nevertheless decided to Aget [appellant] in and confront him with what Thetford had said.@ Pinkins testified that he, two other plain clothes detectives, and three uniformed officers went to appellant=s home, where they arrived between 2:00 and 3:00 in the morning of January 27. Pinkins knocked on the front door, and appellant=s father answered and led Pinkins, Detective Larry Davis, and two of the officers to appellant=s bedroom. Using his flashlight, Pinkins found appellant lying on a mattress on the floor. According to Pinkins and Davis, Pinkins identified himself to appellant and told him that Awe need to go and talk,@ to which appellant responded AOkay.@ The two officers then went into the room and handcuffed appellant. Appellant was escorted from the house in his boxer shorts and a T‑shirt and placed into a patrol car.
Sometime after appellant was placed in the patrol car, the detectives learned that the complainant=s body had been found. Appellant was taken directly from his home to the scene where the body was located. According to Pinkins, this was done to let appellant know that Thetford had given them the information to locate the body. They stayed at this location for approximately five to ten minutes before proceeding to the sheriff=s department. Appellant was eventually transported to the Lockwood Substation, where he was taken to an interview room and his handcuffs were removed. Appellant initially denied any involvement in the complainant=s disappearance, but later admitted that he was involved, although he never admitted to causing any fatal wound or actually confessed to the offense of murder. Appellant=s statement was accepted, typed up, and given to appellant to read. Appellant acknowledged his rights on the statement, initialed that he understood and wished to waive the same, and signed the statement.
On original submission, appellant contended (1) his confession was the result of an illegal arrest, and therefore should not have been admitted into evidence; (2) his confession was inadmissible because it was obtained in violation of a state statute regarding enticement of a minor child; and (3) the State=s jury argument improperly speculated on matters that were not introduced into evidence. This court held (1) the trial court did not err in concluding that appellant had not been arrested before he admitted his involvement in the complainant=s death; (2) appellant did not preserve error with regard to his contention the trial court erred in admitting his confession into evidence because it was obtained after law enforcement officers took appellant from his parent=s possession in violation of section 25.04 of the Penal Code; and (3) the challenged jury argument was in response to and invited by opposing counsel and thus did not constitute reversible error, even though it referred to matters not in evidence. The Court of Criminal Appeals denied appellant=s petition for discretionary review.
The Supreme Court of the United States granted review and reversed this court, finding that appellant=s confession was the product of an illegal arrest. Kaupp, 123 S.Ct. at 1847-48. The Court found that appellant=s response of AOkay@ did not show consent under the circumstances, noting that there is no reason to think appellant=s answer was anything more than Aa mere submission to a claim of lawful authority.@ Id. at 1847. It also held that a reasonable person in appellant=s position would not have thought he was free to go home after the detectives began their questioning. Id. Based on that holding, the Supreme Court remanded to this court for proceedings consistent with its opinion. Id.
In response to the Supreme Court=s opinion, appellant filed a Motion for Amendment of Appellate Opinion and for Release of Appellant, requesting that we reverse the judgment of the trial court and dismiss the prosecution. In the alternative, appellant seeks reversal of the judgment, remand for a new trial, and release on an appropriate appearance bond. The State concedes it is unable to point to any intervening circumstances that would have the effect of attenuating the taint of appellant=s illegal arrest and thus admits the trial court=s error in admitting the confession was harmful. It requests the case be remanded to the trial court for a new trial.
On original submission, appellant did not challenge the sufficiency of the evidence or contend the accomplice testimony of Nicholas Thetford could not be corroborated without the confession. Rather, he complained that the trial court erred in denying his motion to suppress and admitting his confession into evidence. He only sought reversal of the conviction and a new trial. However, appellant now argues the case should be dismissed because, after removing the effects of the confession from consideration, the evidence is insufficient to support his conviction. We decline to address these new arguments, which were not briefed or developed on original submission. Regardless, the admission of an involuntary confession is trial error and the appropriate remedy for harmful trial error is a reversal of the judgment and a remand of the case for a new trial. See Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992) (holding appellate court erred in ordering the acquittal of appellant in response to finding the trial court had admitted unlawfully seized evidence).
Appellant also seeks release on appropriate appearance bond. Our authority to release appellant on bond after reversing a conviction is conditional and is only to be exercised in cases Apending final determination of an appeal by the state or the defendant on a motion for discretionary review.@ Tex. Code Crim. Proc. Ann. art. 44.04(h) (Vernon Supp. 2002). The State has said it will not file a motion for rehearing or petition for discretionary review if we reverse the judgment and remand the case for a new trial. Accordingly, there is no justification for this court to determine the amount of bond at this time. The matter of reasonable bail pending retrial should be determined by the trial court.
We reverse the trial court=s judgment and remand this case for a new trial.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed January 27, 2004.
Panel consists of Justices Yates, Hudson, and Fowler.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] The Court noted that, unless on remand the State could point to a previously undisclosed intervening event between the illegal arrest and appellant=s confessionCone that would break the causal connection between the illegality and the confessionCthe confession must be suppressed. Kaupp, 123 S.Ct. at 1847-48.