Affirmed and Memorandum Opinion filed August 7, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00066-CR
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THOMAS JUSTIN THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 04CR0351
M E M O R A N D U M O P I N I O N
A jury convicted appellant Thomas Justin Thomas of capital murder and the trial court sentenced him to life imprisonment. On appeal he contends the trial court erred by admitting his taped confessions because they were not voluntarily given as required by statute and the United States Constitution. He further alleges that the mandatory life sentence provision of the capital murder sentencing scheme is unconstitutional. We affirm.
I. Factual and Procedural Background
On February 10, 2004, appellant and three of his friends went to the residence of his grandparents, William and Pearl Clement. After breaking down the door, appellant, either alone or in the company of one of his friends, bludgeoned his grandparents with a tire iron; William was later pronounced dead at the scene, while Pearl died at the hospital. Appellant and his friends were stopped shortly thereafter in the early morning hours of February 11, 2004, because the van they were in matched the description of the vehicle used in an unrelated nearby robbery and because the driver of the van violated several traffic laws. When the officer who stopped them approached the van, he discovered a rifle and several other suspicious items in the van. In response to questions regarding the items, appellant stated that they belonged to his grandparents and that the van they were driving belonged to his mother. Because appellant was unable to provide a reasonable explanation for having his grandparents= belongings B including his grandmother=s purse and his grandfather=s wallet B in his possession, the officer radioed dispatch and asked that a call be placed to the Clements= home. When dispatch was unable to contact the Clements, the officer became concerned that appellant and his friends had burglarized the Clement home. He radioed for another unit as backup, and was soon notified that units were already at the Clement home where Athere were two subjects down.@ He then arrested appellant and his friends.
After appellant and his friends were taken to police headquarters, evidence was collected from both the van and their clothing. Appellant and his friends were separated and questioned by several officers, including a Texas Ranger called in to assist with the interviews. Appellant was the third suspect to be interviewed. Texas Ranger Joe Haralson met with appellant around 6:30 a.m., warned appellant of his rights at 6:44 a.m., and began tape-recording his statement at 7:16 a.m. on February 11, 2004. In his first statement, appellant confessed to robbing and murdering his grandparents, but stated that he only did so at the suggestion of one of his friends; he also said that he had beat his grandparents at the urging of his friend because he was afraid his friend would kill him if he refused. He provided several specific details of the crime. The recording of appellant=s first statement concluded at 7:45 a.m., and appellant was escorted back to his cell.
After police interviewed another suspect, an officer observed appellant Acrying and upset@ in his cell. At appellant=s request, officers interviewed him again at 8:44 a.m. During this tape-recorded statement, appellant stated he was on some unspecified medication and Adidn=t feel like@ himself. He expressed remorse for killing his grandparents, and then gave another detailed description of the killings, which differed fairly significantly from his first statement. In this statement, he indicated that one of his friends had been pressuring him to kill his parents and steal their van for several weeks prior to February 10. Because appellant refused, this friend then began suggesting appellant kill his grandparents. On the night of his grandparents= murders, appellant and his friends attempted to go to a strip club, but could not get in because they did not have enough money. According to appellant=s second statement, his friend again suggested they kill members of appellant=s family to get money. In this statement, appellant said he went into his grandparents= house alone, instead of in the company of his friend. According to appellant, while he was beating his grandparents, his head told him to stop, but he was unable to control himself. This tape-recorded statement concluded at 9:16 a.m.
Appellant was indicted for the capital murder of his grandparents on May 5, 2004; however, the State did not seek the death penalty. During appellant=s trial, the trial court conducted a Jackson-Denno[1] hearing regarding the voluntariness of his confessions. At the conclusion of the hearing, the trial court found that appellant=s custodial statements were made voluntarily. Appellant=s tape-recorded statements were admitted into evidence and played for the jury. In the court=s charge, the jury was instructed that it could consider appellant=s confessions only if it determined, beyond a reasonable doubt, that appellant Aknowingly, intelligently[,] and voluntarily waived [his] rights.@ Appellant was convicted by the jury as charged in the indictment. The trial court sentenced appellant to life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. After a motion for new trial was denied on January 27, 2006, this appeal timely followed.
III. Issues Presented
Appellant presents four issues for our review. In his first two issues, appellant contends the trial court erred in admitting his taped confessions because they were not given voluntarily as required by the United States Constitution and the Texas Code of Criminal Procedure. Appellant asserts in his third and fourth issues that the automatic life-sentencing provision of the Texas Penal Code is unconstitutional under both the United States and Texas constitutions.
IV. Discussion
A. Voluntariness of Confessions
In his first two issues, appellant complains that his taped confessions were not voluntarily given, in violation of the United States Constitution and Texas statutory requirements. Specifically, appellant contends that he was pressured by police into giving his confessions and that he was unable to resist this pressure due to the combined effect of lack of sleep, his emotional distress, his youth, and his affliction with learning disabilities, attention-deficit disorder, and depression.
An accused must give his confession voluntarily before it can be used against him. See Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995) (en banc) (per curiam). Under federal due process principles, a statement is involuntary if the defendant was offered inducements of such a nature or coerced to such a degree that the inducements or coercion B not his own free will B produced the statement. Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 521-22 (1986); Gomes v. State, 9 S.W.3d 373, 377 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). Article 38.21 of the Code of Criminal Procedure requires that the statement be Afreely and voluntarily made without compulsion or persuasion.@ Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). 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) (en banc). The ultimate issue is whether the appellant=s will was overborne. Id. at 856.
Once the accused contests the admission of his statement on the ground of Avoluntariness,@ the due process guarantee and article 38.22, section 6 require 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) (en banc) (citing Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 1783 (1964)); see also Tex. Code Crim. Proc. Ann. art. 38.22, ' 6 (Vernon 2005). At this hearing, the State must prove voluntariness by a preponderance of the evidence. Alvarado, 912 S.W.2d at 211. The trial court is the sole judge of the weight and credibility of the evidence, and the court=s findings may not be disturbed on appeal absent a clear abuse of discretion. Id. When reviewing a suppression hearing ruling, we view the evidence in the light most favorable to the trial court=s ruling. See State v. Terrazas, 4 S.W.3d 720, 725 (Tex. Crim. App. 1999) (en banc); Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) (en banc).
Here, appellant contends his statement was involuntary due to the following Apressure@: (1) the nature of custodial interrogation; (2) the fact that appellant was questioned before being arraigned; (3) appellant=s Apoor grasp of what he was really giving up by waiving rights and giving self-incriminating statements@; (4) appellant=s lack of knowledge that the death penalty was a possible punishment; and (5) the officers= failure to seek appointment of an attorney because they Aknew or should have known@ he would be unable to afford an attorney on his own and an indigent capital murder suspect should have an attorney appointed Aas soon as practical after charges are filed.@[2] Appellant also identifies several purported personal weaknesses that allegedly made him less able than the normal person to cope with this sort of pressure: (1) his lack of sleep; (2) his emotional distress; (3) his youth; and (4) his afflictions with learning disabilities, attention deficit-hyperactivity disorder (AADHD@), and depression. Appellant contends that these factors, taken together, render his confessions involuntary. We disagree.
Because the voluntariness of appellant=s confessions was contested, the trial court conducted a Jackson-Denno hearing. At the hearing, Ranger Haralson first testified for the State. Then appellant called his mother, Julie Thomas, and Dr. Michael Fuller, a court-appointed psychiatrist who had evaluated appellant for a possible insanity plea. Appellant did not testify at this hearing. After the Jackson-Denno hearing, the trial court dictated the following findings into the record:
I find that the procedure used to begin with did comply with Article [38.]22 of the Code of Criminal Procedure, that there are indications of statements being made under voluntary conditions, and that, in fact, the statement was voluntarily made.
Again, reviewing the procedure that [Ranger] Haralson used, I find that it did comply with the statute. The rights were given individually to Mr. Thomas. After each one, he acknowledged understanding. He was given the waiver which he read out loud on both of the statements, the first interview and in the second interview. He did acknowledge understanding of each right, did state that he was waiving those rights.
He never requested an attorney. He never asked the interview to cease. When given the opportunity, he gave a free narrative account. And only questions were asked after he had ceased his narrative account.
At certain points when questions were being asked, Mr. Thomas did correct Ranger Haralson as far as the factual misstatements. He acknowledged that he understood that a waiver means to give up rights. Then he asked the question, Awhere do I begin@ before beginning the statement the second time.
* * *
He was oriented as to time, place, and person. He acknowledged who he was, where he was. He signed, dated and timed the waiver of rights in State=s Exhibit 70. When asked to explain what Acoerce@ means, he said he did not understand. When Ranger Haralson explained it to him, he then said, ANo there was no coercion. Everyone has been nice to me.@
Reviewing the testimony of Dr. Fuller regarding the diagnosis of ADHD, he said it was probably not B it would probably not significantly alter his ability to understand Miranda rights.
So for the record, again, I find that the statement was made under voluntary conditions and was B freely and voluntarily [sic] the rights were waived and the statement was voluntarily made. I find that it is admissible.
These findings are supported by the record. Haralson testified that he advised appellant of his rights three times and that appellant acknowledged his rights and waived them three times, twice in writing. According to Haralson, appellant never indicated he wanted an attorney, was not denied any basic necessities, was not promised anything in exchange for his statement, and was not coerced in any way.[3] Haralson explained that appellant corrected him several times when he was questioning appellant and stated that appellant appeared Aalert and knew what he was saying. . . . [and] did not . . . appear to be intoxicated or under the influence of either fatigue or any kind of narcotics.@ Finally, although both appellant=s mother and Dr. Fuller indicated that appellant had an IQ within the low-average range and suffered from ADHD and fairly significant dyslexia, Fuller testified that appellant=s ADHD and his other Acognitive problems@ would probably not have a significant impact on his ability to understand his rights.
Viewing this evidence in the light most favorable to the trial court=s ruling, we conclude that the State met its burden to establish, by a preponderance of the evidence, that appellant=s confession was voluntary. See Alvarado, 912 S.W.2d at 211. The trial court was aware of most of the factors appellant lists in his brief as rendering his confessions involuntary, yet concluded the confessions were made voluntarily. See id. (noting that the trial court is the sole judge of the weight and credibility of the evidence). Appellant did not testify, and there is nothing to indicate that any government actor offered inducements of such a nature or coerced him to such a degree that the inducements or coercion, instead of his own free will, produced his statements. See Connelly, 479 U.S. at 167, 107 S. Ct. at 522; Gomes, 9 S.W .3d at 377. Nor, after reviewing the totality of circumstances, do we discern any indication that appellant=s will was Aoverborne@ during the course of his statements. See Creager, 952 S.W.2d at 855-56. Finally, the trial court included the voluntariness issue in its charge to the jury.[4] Under these circumstances, we cannot say that the trial court abused its discretion in admitting appellant=s taped confessions, and we therefore overrule appellant=s first and second issues.
C. Constitutionality of Automatic Life Sentence Provision
In appellant=s third and fourth issues, he asserts that the automatic life sentence mandated by section 12.31(a) of the Texas Penal Code violates the Texas and United States constitutions.[5] Under Texas law, an automatic life sentence is mandatory when the State does not seek the imposition of the death penalty for a capital offense. See Tex. Penal Code Ann. ' 12.31(a) (Vernon 2005); see also Tex. Code Crim. Proc. Ann. art. 37.071, ' 1 (Vernon 2006).[6] It is well-established that the automatic life sentencing provisions of the Texas capital sentencing framework do not violate the United States or Texas constitutions. See, e.g., Cienfuegos v. State, 113 S.W.3d 481, 495-96 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (determining that imposing automatic life sentence on defendant convicted as a party to capital murder does not offend constitution); Barnes v. State, 56 S.W.3d 221, 239 (Tex. App.CFort Worth 2001, pet. ref=d) (holding imposition of automatic life sentence on juvenile defendant does not violate United States or Texas Constitutions); Laird v. State, 933 S.W.2d 707, 714 (Tex. App.CHouston [14th Dist.] 1996, pet. ref=d) (same).
Despite this uncontroverted authority, appellant contends that the United States Supreme Court=s decision in Roper v. Simmons provides a basis to revisit this well-settled issue. 543 U.S. 551, 125 S. Ct. 1183 (2005). We disagree. In Roper, the Supreme Court determined that the eighth and fourteenth amendments prohibit the imposition of the death penalty on offenders who were under the age of eighteen when their crimes were committed. id. at 578, 125 S. Ct. at 1200. But
[t]he penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.
Harmelin v. Michigan, 501 U.S. 957, 995-96, 111 S. Ct. 2680, 2702 (1991) (quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 2760 (1972) (Stewart, J., concurring)). In this case, the State did not seek the death penalty, apparently conceding punishment questions such as mitigation that are attendant to the death penalty.[7] See Prater v. State, 903 S.W.2d 57, 59 (Tex. App.CFort Worth 1995, no pet.). Moreover, the Simmons Court affirmed the seventeen-year-old offender=s sentence of life imprisonment without parole. Simmons, 543 U.S. at 560, 125 S. Ct. at 1189. Thus, to the extent Simmons has any bearing on this issue at all, it suggests that life imprisonment of a seventeen-year-old capital offender, such as appellant, does not contravene the constitutional prohibitions against cruel and unusual punishment. Accordingly, we overrule appellant=s third and fourth issues.
III. Conclusion
Having overruled each of appellant=s issues, we affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Opinion filed August 7, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 1783 (1964).
[2] Nothing in the record reflects that the officers involved in questioning appellant had any knowledge that appellant would be unable to afford an attorney, and appellant was advised of his right to appointed counsel if he were unable to afford an attorney prior to questioning.
[3] Through cross-examination, appellant=s trial counsel implied that Haralson intimidated appellant during the approximately forty minutes between appellant signing the first waiver and the beginning of his recorded statement; however, Haralson provided a reasonable explanation for the lapse of time. First, Haralson stated that during this time, he explained appellant=s rights to him, obtained appellant=s signed waiver, and told appellant that the officers were aware that he had been a passenger in a vehicle that contained property stolen from two people who had been murdered. Second, Haralson also indicated that each time he interviews someone, whether the interview is ultimately recorded or not, he conducts a preliminary interview prior to initiating the official statement. Finally, Haralson denied telling appellant that either of the two previously interviewed suspects had implicated appellant in their statements.
[4] Appellant states in his brief, AThe jury charge did not address any aspect of the admissibility of the statements other than the warnings required by Tex. Code Crim. Proc. art. 38.22 and Miranda v. Arizona, 384 U.S. 486, 86 S. Ct. 1602 (1966), so there is no implicit jury finding as to other aspects of voluntariness.@ However, he does not elaborate as to what Aother aspects@ of voluntariness he refers, and the trial court charged the jury on voluntariness as follows:
If, however, you find beyond a reasonable doubt that the aforementioned warning was given the Defendant prior to his having made such statement, . . . before you may consider such statement as evidence in this case, you must find from the evidence beyond a reasonable doubt that prior to making such statement, . . . the Defendant knowingly, intelligently[,] and voluntarily waived the rights . . . , and unless you so find, or if you have a reasonable doubt thereof, you will not consider the statement or confession for any purpose whatsoever or any evidence obtained as a result of the statement, if any.
(Emphasis added.)
[5] Both appellant and the State note that appellant did not preserve error on these issues by objecting at trial. Although he did not object on these grounds, appellant preserved error on both these issues by filing a motion for new trial, which was denied by the trial court. See Tex. R. App. P. 33.1(a) In addition, questions challenging the constitutionality of a statute upon which a defendant=s conviction or sentence are based should be addressed by appellate courts even when raised for the first time on appeal. See, e.g., Holberg v. State, 38 S.W.3d 137, 139 n.7 (Tex. Crim. App. 2000) (addressing appellant=s establishment clause argument regarding the constitutionality of the death penalty even though appellant did not object on this basis at trial).
[6] These statutes have both been amended to require a life sentence without the possibility of parole. See Tex. Penal Code Ann. ' 12.31(a) (Vernon 2005); Tex. Code Crim. Proc. Ann. art. 37.071, ' 1 (Vernon 2006). Appellant acknowledges that because Alife without parole@ did not exist in Texas at the time of his offense, he will be eligible for parole. As the United States Supreme Court has already rejected the argument that it is Acruel and unusual@ to impose a mandatory sentence of life imprisonment without the possibility of parole, see Harmelin v. Michigan, 501 U.S. 957, 996, 111 S. Ct. 2680, 2702 (1991), a life sentence including eligibility for parole is even less likely to offend constitutional strictures. Indeed, the Harmelin majority specifically pointed out that a life sentence Acannot be compared with death.@ Id.
[7] The State did not seek the death penalty even though appellant=s offense was committed prior to the Supreme Court=s decision in Roper v. Simmons. Prior to Simmons, a seventeen-year-old offender was eligible for the death penalty. See Tex. Penal Code Ann. ' 8.07(b), (c) (Vernon Supp. 2006); see also Dewberry v. State, 4 S.W.3d 735, 739 (Tex. Crim. App. 1999) (en banc) (affirming seventeen-year-old offender=s death sentence).