Affirmed and Memorandum Opinion filed August 7, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-00441-CR
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RICHARD EUGENE COLLINS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1021705
M E M O R A N D U M O P I N I O N
Appellant Richard Eugene Collins, Jr. was convicted of capital murder and sentenced to confinement for life in the Texas Department of Criminal Justice, Institutional Division. On appeal, appellant contends that the trial court reversibly erred in denying his motion to suppress, and that the evidence is legally and factually insufficient to show that he acted with the intent to obtain or maintain control of property belonging to the complainant, James Alexander. We affirm.
Factual Background
On the evening of March 29, 2005, eleven-year-old Davon McFarland watched from his kitchen window as appellant shot and killed James Alexander. Davon knew Alexander as AOld School@ and appellant as ASqueaky.@ He was watching the two men because he thought something might happen when he saw them sitting together in Alexander=s van, which was stopped on Clover Street.
Appellant sat in the van=s passenger side, and Alexander sat in the driver=s seat. Appellant had a black gun in his hand, which he pointed at Alexander and fired several times. Davon heard three shots. Davon=s mother also heard the shots and ordered him to get on the floor. But, Davon did not stay on the floor; he returned to the window and saw appellant get out of Alexander=s van with a Akhaki-colored@ suitcase. Appellant got into the passenger side of a waiting station wagon and fled down the street.
Davon recognized the khaki-colored suitcase from earlier in the day. For unknown reasons, Alexander came to the neighborhood in his van during the day and showed Davon Aa lot of money@ in the suitcase. Davon saw appellant take the same suitcase from the van after he heard the gunshots. At trial, appellant=s private investigator testified Davon told her he did not see appellant take anything after the murder. Appellant admitted, however, in a videotaped statement to police that Alexander had shown him money earlier in the day and asked him to kill Michael Babers, appellant=s cousin.[1] He also admitted he saw a silver suitcase in the van during the shooting.
At the scene, police recovered three .45 caliber shell casings from a semi-automatic pistol. Police also found a wallet hanging partially out of the van, a watch on the ground with a broken band, and five one dollar bills in a wad on the van=s driver=s side seat. The assistant medical examiner who performed the autopsy on Alexander found five gunshot wounds to his body, including three to his back, one to his wrist and one to his abdomen. He determined that Alexander=s death was caused by multiple gunshot wounds.
In the early morning hours after the shooting, appellant turned himself in to the Southeast patrol station, claiming that he had just shot someone on Clover Street in self-defense. After the police confirmed that a shooting had occurred on Clover Street, appellant was transported to the homicide division to meet with the officers handling the case.
At the homicide division, appellant met with Officer Baimbridge and Officer Ruland. Baimbridge and Ruland interviewed appellant for approximately one and one-half hours as appellant gave a videotaped statement. At the start of the interview, the officers read appellant his rights, and appellant indicated that he understood and waived those rights. Although Baimbridge was alone with appellant briefly before the interview began, the door to the interview room remained open and appellant was not handcuffed. Appellant claimed he turned himself in because he wanted to tell his side of the story. During the interview, the officers gave appellant food, a soft drink and coffee, and allowed him to take a restroom break when he requested it.
Appellant asserted that Alexander had attempted to hire him to kill Michael Babers, and also that Alexander wanted to buy drugs from him. Although appellant gave several explanations for his actions, he repeatedly stated that he shot Alexander with a black .45 caliber semi-automatic handgun. He claimed that he fired the gun when he saw Alexander reach for a gun, but later stated he did not know if Alexander had a gun or not.
In the interview, appellant implicated himself, his relatives, and another person in a plot to rob or Ajack@ Alexander of the money he showed appellant earlier in the day. Appellant admitted he got into the van to get the money, and referred to the crime as a robbery or Ajack[ing].@ He explained how he expected to divide the money between the participants, but claimed he did not take the suitcase despite seeing it behind the driver=s seat. He believed his aunt or cousin stole the suitcase after he fled in the station wagon. He did admit that he said to Alexander, Agive me the money, give me the money,@ as they were Atussling.@ When he saw Alexander reach down, appellant stated that he fired as Alexander=s back was turned to him. Appellant explained that he fired his gun two more times and showed how Alexander sat partially inside the van with one foot out.
At the end of the this interview, appellant admitted he gave his statement of Ahis own free will,@ and that he was not promised anything in exchange for it. That evening, at approximately 7:45 p.m., Officer Ruland brought appellant back for another interview to discuss additional information received from witness interviews. Ruland read appellant his rights, and appellant waived them. In this recorded statement, appellant again admitted that he intended to rob Alexander for his money, but denied taking the suitcase.
Appellant moved to suppress his recorded statements, contending that, before the first interview began, Officer Baimbridge pushed him against a wall, intimidated him, and told him he had to give a statement. Baimbridge denied threatening, coercing, or physically assaulting appellant. The trial judge denied appellant=s motion to suppress, without findings of fact or conclusions of law.
Analysis of Appellant=s Issues
A. The Motion to Suppress
In his first issue, appellant contends the trial court committed reversible error in denying his motion to suppress the recorded statements he gave to the police, because the statements were coerced in violation of his constitutional right to due process. According to appellant, before the first interview with police, Officer Baimbridge physically abused and intimidated him, causing him to become fearful of the officer. But for this fear, appellant claims, he would not have given any statement.
1. The Applicable Law
Although appellant claims that admitting the statement violates the Fifth and Fourteenth Amendments to the United States Constitution and article 38.21 of the Texas Code of Criminal Procedure, appellant does not separately brief each issue. Instead, appellant briefs the issue generally under a single section of his brief. Therefore, we will address appellant=s constitutional and statutory claims in the same way to resolve the question of the trial court=s alleged error. See Heitman v. State, 815 S.W.2d 681, 690B91 n.23 (Tex. Crim. App. 1991) (treating state and federal constitutions as providing the same protections when appellant does not argue that they should be interpreted differently).
The burden of proof at the suppression hearing is on the prosecution. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). It must prove by a preponderance of the evidence that the defendant gave his statement voluntarily. Id. Under federal due process, a statement is involuntary if the defendant was offered inducements of such a nature or coerced to such a degree that the inducements or coercionCnot his own free willCproduced the statement. See id. Under Texas law, 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. art. 38.21. 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). The ultimate question is whether the appellant=s will was overborne. Id. at 856.
2. Standard of Review
We review a trial court's ruling on a motion to suppress evidence under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). At a suppression hearing, the trial court is the sole fact-finder and may choose to believe or disbelieve any or all of the witnesses= testimony. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). We give almost total deference to the trial court=s determination of historical facts when supported by the record, particularly if the findings turn on witness credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The same deference is accorded to determinations of mixed questions of law and fact if their resolution depends upon witness credibility and demeanor. Ross, 32 S.W.3d at 856. Mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are considered under a de novo standard. Id. We will sustain the trial court=s ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal, 935 S.W.2d at 138.
3. No Abuse of Discretion Shown
The trial court held a hearing on appellant=s motion to suppress at which Officer Baimbridge and appellant testified. State=s Exhibit 1, the videotape of appellant=s statement, was admitted for purposes of the hearing only.
Baimbridge testified that appellant turned himself in, saying that he wanted to talk about what happened. Appellant was read his rights, and appellant stated that he understood these rights and agreed to give a statement. Baimbridge testified that he never coerced or threatened appellant before or during the interview. Further, appellant was provided with coffee, food, and a soft drink, and he was given a bathroom break when he requested it. Baimbridge also testified that neither he nor Officer Ruland promised appellant anything in exchange for his statement. On cross-examination, Baimbridge acknowledged he and appellant were alone briefly before the interview, but he denied grabbing appellant, throwing him against a wall, or telling him he needed to give a statement.
Appellant testified that Baimbridge pushed him up against the wall and Aintimidated@ him. Baimbridge also told him he had to give a statement. Appellant testified he was afraid and thought he could be injured. He also stated that he would not have made the statement if he had not been coerced. However, on cross-examination, appellant admitted that he voluntarily went to the police station because he wanted to make a statement. Appellant also stated that he found Officer Ruland to be Areal nice,@ and agreed that he had made similar comments in the videotaped statement. But, appellant did not mention his claims of intimidation or abuse to Ruland during the second interview when Ruland interviewed him without Baimbridge. Moreover, at the conclusion of the first interview, appellant acknowledged that he came in Aof his own free will@ and that he understood his rights as they were read to him.
Having reviewed the evidence, we hold that appellant cannot demonstrate an abuse of discretion. The trial judge weighed the witnesses= credibility and chose to accept Officer Baimbridge=s testimony and reject appellant=s testimony. See Masterson v. State, 155 S.W.3d 167, 171 (Tex. Crim. App. 2005) (holding that trial court had discretion to disbelieve appellant=s testimony even if it was not controverted). Moreover, the videotaped statement supports the trial court=s ruling. Therefore, we overrule appellant=s first issue.
B. The Legal and Factual Sufficiency of the Evidence
Texas law provides that a person commits murder if the person Aintentionally or knowingly causes the death of an individual.@ See Tex. Penal Code ' 19.02(b)(1). The crime rises to the level of capital murder when the person Aintentionally commits the murder in the course of committing or attempting to commit . . . [a] robbery.@ Tex. Penal Code ' 19.03(a)(2). A person commits robbery if, in the course of committing theft and with the intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Penal Code ' 29.02(a)(1). In his second and third issues, appellant contends the State introduced legally and factually insufficient evidence to establish that he acted with the intent to obtain or maintain control of property belonging to the complainant.
1. Standards of Review
Evidence is legally insufficient if, when viewed in a light most favorable to the verdict, a rational jury could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given testimony, and it is also the exclusive province of the jury to reconcile conflicts in the evidence. Jones, 944 S.W.2d at 647. Thus, when performing a legal-sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. See Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We may set the verdict aside if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). However, while we may disagree with the jury=s conclusions, we must exercise appropriate deference to avoid substituting our judgment for that of the jury, particularly in matters of credibility. Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); see also Watson, 204 S.W.3d at 414 (stating that a court should not reverse a verdict it disagrees with, unless it represents a manifest injustice even though supported by legally sufficient evidence). Finally, we must discuss the evidence that, according to appellant, most undermines the jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
2. The Evidence is Legally and Factually Sufficient
Appellant acknowledges that Davon McFarland=s testimony that he saw appellant leave with a briefcase was Asome evidence@ that appellant had the intent to obtain or maintain property belonging to Alexander at the time of the murder, but contends the State made no attempt to establish that the briefcase Davon saw appellant take was the same briefcase Davon saw earlier. Appellant also points to his private investigator=s contradictory testimony that Davon told her he did not see appellant with a briefcase when he got out of the car. Additionally, appellant contends that a lack of intent to commit theft is shown because he did not take Alexander=s wallet, watch, or cash, all of which remained at the scene.
However, as appellant acknowledges, the State first established appellant=s intent through the testimony of Davon McFarland. Davon testified that he saw appellant take a suitcase from Alexander=s van after shooting him. He also testified that, earlier in the day, Alexander had shown him a large amount of money in the same suitcase. Appellant sought to refute the evidence with the testimony of his private investigator, who claimed Davon told her he did not see appellant take anything from the van. The jury, however, could have chosen to believe Davon=s testimony over the private investigator=s testimony. Davon=s testimony, as an eye-witness, provided the jury with sufficient evidence to convict appellant of capital murder. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (testimony of one eyewitness may be sufficient to support a jury=s verdict); Walker v. State, 180 S.W.3d 829, 832 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (same).
The jury also had additional evidence provided by appellant=s recorded statements admitting his intention. In his second statement, appellant explained he intended to Ajack@ Alexander for his money and agreed Ajack@ meant robbery. In his first statement, he repeatedly referred to robbing or jacking Alexander of his money. Appellant also gave detailed information about his accomplices and how he intended to divide the money among them. Therefore, even if the jury chose to believe appellant=s claims that he did not take the money-filled suitcase from the van after murdering Alexander, appellant=s admission that he intended to rob Alexander supported the capital murder conviction. See Bustamante v. State, 106 S.W.3d 738, 740 (Tex. Crim. App. 2003) (stating, in capital murder case, that A[w]hile no completed theft occurred, proof of a completed theft is not required to establish the underlying offense of robbery or attempted robbery@). Further, the jury charge gave the jury the option of finding appellant guilty of simple murder, but they chose to convict him of the greater crime of capital murder after reviewing the ample evidence of appellant=s intention to rob Alexander.
Having reviewed the record, we hold that the evidence is both legally and factually sufficient to support the jury=s verdict. Accordingly, we overrule appellant=s second and third issues.
The trial court=s judgment is affirmed.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed August 7, 2007.
Panel consists of Justices Anderson, Fowler, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] According to appellant, Alexander did not know Babers was related to him.