COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00058-CR
GARRY DWAYNE ALFORD APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1263768D
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MEMORANDUM OPINION 1
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A jury convicted Appellant Garry Dwayne Alford of possession of four
grams or more but less than 200 grams of cocaine and assessed his punishment
at 55 years’ confinement as a habitual offender. The trial court sentenced him
accordingly. Appellant brings three points on appeal, complaining that the trial
court erroneously denied his motion to suppress his confession, committed jury
1
See Tex. R. App. P. 47.4.
charge error by incorrectly charging the jury on his confession, and awarded him
excessive punishment. Because the trial court committed no reversible error, we
affirm the trial court’s judgment.
Summary of Facts
On December 1, 2011, a Fort Worth S.W.A.T. team executed a warrant at
the residence of Appellant and his brother, who is mentally handicapped. Police
handcuffed both men and then searched the residence and found 4.88 grams of
cocaine, a small amount of heroin, and other paraphernalia. After being read his
Miranda rights, Appellant confessed to being the sole owner of the seized
narcotics in a handwritten statement that read, “My brother . . . is NOT involved in
any drug involvement at 4212 Wiman Dr.[;] I take full responsibility for all [. . .] at
the house. Crack. Heroin. —GA.” (Appellant’s handwriting of the omitted word
is illegible.)
Appellant filed a motion to suppress, and in a Jackson v. Denno 2 hearing,
he testified that an officer at the scene, Sergeant Kyle Jarrell, had promised that
his brother would not be arrested or charged if Appellant confessed to owning the
narcotics found at the residence. Sergeant Jarrell testified that he made no
promises to Appellant and did not coerce him to confess in any way. The trial
court entered findings of fact and conclusions of law, concluding that
2
378 U.S. 368, 84 S. Ct. 1774 (1964).
2
there were no promises made to [Appellant] by [Sergeant Jarrell].
[Appellant] was competent, and knowingly and intelligently and
voluntarily waived his rights as set out on the document and gave
the written statement to Detective Jarrell.
The Court finds that that is legally admissible and concludes
as a matter of law that the statement obtained by Detective Jarrell,
as well as all of the narcotics found in the residence . . . are
admissible in trial.
The jury charge at guilt read, “[B]efore a statement given to officers may be
considered voluntary, it must be shown by legal evidence beyond a reasonable
doubt that prior to making such oral statement . . . the accused has been warned
[of his Miranda rights].” On January 30, 2013, a Tarrant County jury found
Appellant guilty of the offense of possession of a controlled substance, namely
cocaine, of four grams of more, but less than 200 grams, including any
adulterants or dilutants.
The court’s charge at punishment informed the jurors of the habitual
offender notice alleging that Appellant had been previously convicted of the
felony offense of possession of a controlled substance of one gram or more, but
less than four grams, namely cocaine, as well as the felony offense of delivery of
a controlled substance of less than twenty-eight grams, namely cocaine. The
habitual offender notice states that these convictions were handed down in
Tarrant County District Court on November 19, 2004, and June 15, 1992,
respectively. The charge instructed the jury to set the punishment of Appellant at
“confinement in the Texas Department of Criminal Justice for life, or any term of
years not more than ninety-nine (99) or less than twenty-five (25).”
3
Having found both of the allegations in the habitual offender notice true,
the jury assessed Appellant’s punishment at 55 years’ confinement in the Texas
Department of Criminal Justice. At sentencing, the learned and conscientious
trial judge announced the jury’s conviction and punishment and then asked, as
the law requires, “Is there any legal reason . . . why sentence should not be
pronounced?” 3 Appellant’s attorney replied, “No.” Appellant filed no motion for
new trial.
Admissibility of Appellant’s Written Statement
In his first point, Appellant argues that the trial court erred by denying his
motion to suppress his written statement. We review a trial court’s ruling on a
motion to suppress evidence under a bifurcated standard of review. 4 We give
almost total deference to a trial court’s rulings on questions of historical fact and
application-of-law-to-fact questions that turn on an evaluation of credibility and
demeanor, but we review de novo application-of-law-to-fact questions that do not
turn on credibility and demeanor. 5
3
See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006).
4
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
5
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
4
Appellant contends that his statement was involuntary because it was
induced by an improper promise from the police that they would release his
brother if Appellant confessed to being the owner of the narcotics seized.
Appellant argues that this promise renders the statement involuntary. But the
police officer in question, Sergeant Jarrell, testified that he made no promises.
The trial judge believed the police officer. As the Texas Court of Criminal
Appeals has explained,
As is often the case, this argument comes down to a swearing
match between appellant and the arresting officers. The trial court,
who is the exclusive judge of the credibility of the witnesses and the
weight to be given the testimony at the suppression hearing,
believed the testimony of the officers. 6
Other than Appellant’s testimony, nothing in the record contradicts the
police officer’s statement. Applying the appropriate standard of review, we hold
that the trial court did not err in admitting Appellant’s written statement. We
overrule Appellant’s first point.
Jury Instruction
In his second point, Appellant argues that the trial court erred by
erroneously instructing the jury regarding his written statement. “[A]ll alleged
jury-charge error must be considered on appellate review regardless of
6
Nichols v. State, 754 S.W.2d 185, 191 (Tex. Crim. App. 1988) (citations
omitted), overruled on other grounds by Harris v. State, 784 S.W.2d 5 (Tex. Crim.
App. 1989), and Green v. State, 764 S.W.2d 242 (Tex. Crim. App. 1989).
5
preservation in the trial court.” 7 In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. 8 If error
occurred, whether it was preserved determines the degree of harm required for
reversal. 9
Appellant correctly points out that, instead of instructing the jury on the
contested issue of whether Sergeant Jarrell secured the confession by promising
Appellant that charges would not be filed against his brother if Appellant
confessed, the trial court instructed the jury on the uncontested issue of whether
Sergeant Jarrell advised Appellant of his Miranda warnings before taking the
statement.
Appellant believes that Gelinas v. State 10 controls this issue but argues
that it was wrongly decided and creates bad policy. Gelinas is another in a line
of recent cases holding that the jury must determine whether to follow the
instructions contained in the application paragraph or those contained in the
abstract portion of the jury charge. 11 Unlike the jury charge in Gelinas, however,
7
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).
8
Id.
9
Id.
10
398 S.W.3d 703 (Tex. Crim. App. 2013).
11
Id. at 708–09; see also Vasquez v. State, 389 S.W.3d 361, 371–72 (Tex.
Crim. App. 2012); Crenshaw v. State, 378 S.W.3d 460, 466–67 (Tex. Crim. App.
2012).
6
the jury charge in the case now before this court did not misstate the law.
Rather, it omitted Appellant’s theory of inadmissibility of his statement. The
Texas Court of Criminal Appeals has unequivocally stated,
Under Texas statutory law, there are three types of
instructions that relate to the taking of confessions: (1) a “general”
Article 38.22, § 6 voluntariness instruction; (2) a “general” Article
38.22, § 7 warnings instruction (involving warnings given under § 2
and § 3); and (3) a “specific” Article 38.23(a) exclusionary-rule
instruction. In essence, the Section 6 “general” instruction asks the
jury: “Do you believe, beyond a reasonable doubt, that the
defendant’s statement was voluntarily made? If it was not, do not
consider the defendant’s confession.” The Section 7 instruction sets
out the requirements of 38.22, § 2 or § 3 and asks the jury to decide
whether all of those requirements were met. The Article 38.23(a)
“specific” instruction is fact-based: For example, “Do you believe
that Officer Obie held a gun to the defendant’s head to extract his
statement? If so, do not consider the defendant’s confession.”
As we noted in Vasquez v. State, confusion exists about
which, if any, jury instruction is appropriate because our case law
“does not always distinguish, and sometimes blurs, the requirements
for getting an instruction under article 38.22 and for getting an
instruction under the exclusionary rule of article 38.23.”
We again try to clarify the distinction: Due process and
Miranda claims may warrant both “general” and “specific”
voluntariness instructions; Texas statutory claims warrant only a
“general” voluntariness instruction. It is the defendant’s
responsibility to delineate which type of “involuntariness” he is
claiming—a general (perhaps subjective) lack of voluntariness or a
specific police-coerced lack of voluntariness—because the jury
instruction is very different depending upon the type of claim. 12
The parties here litigated the admissibility of Appellant’s statement in the
Jackson v. Denno hearing. That omitted instruction therefore became “law of the
12
Oursbourn v. State, 259 S.W.3d 159, 173–74 (Tex. Crim. App. 2008)
(footnotes omitted).
7
case.” 13 Accordingly, the trial court erred by failing to submit the contested issue
to the jury.
Having determined that the trial court erred by failing to instruct the jury on
the appropriate issue concerning voluntariness of Appellant’s written statement,
we must now turn to the question of harm. Appellant neither requested the
proper jury instruction nor objected to its omission. Unpreserved charge error
warrants reversal only when the error resulted in egregious harm. 14 The
appropriate inquiry for egregious harm is a fact-specific one that must be
performed on a case-by-case basis. 15
In making an egregious harm determination, “the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.” 16
13
See id. at 180–81.
14
Hollander v. State, 414 S.W.3d 746, 749 (Tex. Crim. App. 2013);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);
see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Middleton v. State, 125
S.W.3d 450, 453 (Tex. Crim. App. 2003) (stating that the harmless error rule of
article 36.19 applies to article 38.23).
15
Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
16
Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–
10 (applying Almanza).
8
The jury charge as given provided,
You are instructed that under our law a statement of a
defendant made while he was under interrogation shall be
admissible in evidence if it appears that the same was freely and
voluntarily made without compulsion or persuasion. However,
before a statement given to officers may be considered voluntary, it
must be shown by legal evidence beyond a reasonable doubt that
prior to making such oral statement . . . the accused has been
warned by the person to whom the statement is made, or by a
magistrate, that (1) he has the right to remain silent and not make
any statement and that any statement he makes may be used
against him at his trial, (2) that any statement he makes may be
used against him in court, (3) that he has the right to have a lawyer
present to advise him prior to and during any questioning, (4) that 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, (5) that
he has the right to terminate the interview at any time, and that the
accused, prior to and during the making of the statement, knowingly,
intelligently, and voluntarily waived the rights set out above.
So, in this case, if you find from the evidence, or if you have a
reasonable doubt thereof, that prior to the time the defendant gave
the alleged statement to Kyle Jarrell, if he did give it, the said Kyle
Jarrell did not warn defendant in the respects enumerated above, or
as to any one of such requirements, then you will wholly disregard
the alleged confession or statement and not consider it for any
purpose nor any evidence obtained as a result thereof. If, however,
you find beyond a reasonable doubt that the aforementioned
warning was given the defendant prior to his having made such
statement, if he did make it, still, 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, if
he did, the defendant knowingly, intelligently and voluntarily waived
the rights hereinbefore set out in the said warning, and unless you
so find, or if you have a reasonable doubt thereof, you will not
consider the statement, if any, for any purpose whatsoever or any
evidence obtained as a result of the statement, if any.
The issue of the seriousness of this error is a very close call. On the one
hand, the jury was instructed that it could consider the statement as evidence
9
only if the jury found that the statement was made freely and voluntarily, without
compulsion or persuasion. Were our inquiry to end there, the question of harm
would be easily settled. The instruction on the Miranda warnings, however,
appears to have instructed the jury to consider the statement if they found that
Officer Jarrell gave Appellant the appropriate warnings before he made the
statement, provided that they also found that Appellant knowingly, intelligently,
and voluntarily waived those rights before and during making the statement.
Not only did Appellant not request the omitted instruction, he specifically
stated that he had no objection to the jury charge before it was read to the jury.
Additionally, considering the record as a whole, Appellant’s statement primarily
exculpated his brother. The drugs were found in the home that Appellant shared
with his brother. Nothing suggests that Appellant did not have equal care,
custody, and control of possessions in the house, including the drugs. Drugs
were found in the kitchen. Small, clear baggies were found in the living room in a
shoebox that also contained Appellant’s mail. Scales were found in a bedroom.
There was no suggestion that any other person lived in the house who could
have been the owner of the drugs to the exclusion of Appellant.
Because the charge instructed the jury that they must first find that
Appellant made his statement freely and voluntarily and not as the result of any
compulsion or persuasion before considering it and because of the facts in this
case, we are compelled to hold that the error in the jury charge did not cause
10
Appellant to suffer egregious harm. Accordingly, we overrule Appellant’s second
point.
Cruel and Unusual Punishment
Appellant argues in his third point that his sentence constitutes cruel and
unusual punishment as prohibited by the Eighth Amendment to the Constitution
of the United States because his sentence is disproportionate to the offense
committed.
The requirement that a defendant object to what he argues is an
unconstitutional sentence presumes the opportunity to object. Here, Appellant
had that opportunity. After announcing the sentence, the learned and
conscientious trial judge asked Appellant whether there was any lawful reason
that sentence should not be pronounced. 17 Appellant stated there was none.
Appellant also did not raise the issue in a motion for new trial. Appellant
therefore has not preserved this issue for appellate review. 18 He also has
provided no evidence of what he would argue were appropriate sentences in
comparable cases. We therefore overrule Appellant’s third point.
17
See Tex. Code Crim. Proc. Ann. art. 42.07.
18
See Tex. R. App. P. 33.1(a); Landers v. State, 402 S.W.3d 252, 254
(Tex. Crim. App. 2013); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App.
2011).
11
Conclusion
Having overruled Appellant’s three points on appeal, we affirm the trial
court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 10, 2014
12