ACCEPTED
04-14-00618-CR
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
5/14/2015 3:38:27 PM
KEITH HOTTLE
CLERK
04-14-00618-CR
FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOR THE FOURTH JUDICIAL DISTRICT 5/14/2015 3:38:27 PM
KEITH E. HOTTLE
Clerk
SAN ANTONIO, TEXAS
_________________________________
THOMAS LITTLE,
Appellant
vs.
THE STATE OF TEXAS,
Appellee
_________________________________
ON APPEAL FROM THE 25TH JUDICIAL DISTRICT COURT
OF GUADALUPE COUNTY, TEXAS
CAUSE NUMBER:14-00698-CR-C
_________________________________
BRIEF FOR THE APPELLEE
THE STATE OF TEXAS
________________________________
EDWARD F. SHAUGHNESSY, III
ATTORNEY-AT-LAW
206 E. LOCUST
SAN ANTONIO, TEXAS 78212
(210) 212-6700
(210) 212-2178 (fax)
SBN 18134500
Shaughnessy727@gmail.com
ORAL ARGUMENT WAIVED ATTORNEY FOR THE APPELLEE
TABLE OF CONTENTS
PAGE (S)
Table of Contents ...................................................................................................... i
Table of Interested Parties ....................................................................................... ii
Table of Authorities................................................................................................. iii
Brief for the Appellee ................................................................................................ 1
Summary of the Argument ...................................................................................... 2
Response to Appellant’s First Point of Error........................................................... 3
Response to Appellant’s Second Point of Error .......................................................7
Conclusion and Prayer ............................................................................................10
Certificate of Service ............................................................................................... 11
Certificate of Compliance ........................................................................................ 11
i
TABLE OF INTERESTED PARTIES
Mr. Steven Delemos
Mr. Keith Henneke State’s Trial Counsel
Assistant District Attorneys
Guadalupe County
25th Judicial District
101 East Court Street, Suite 108
Seguin, Texas 78155
Mr. Scott Simpson Trial Counsel
Attorney at Law
1901 Buena Vista
San Antonio, Texas 78207
Honorable William D. Old, III Trial Court Judge
Judge Presiding
25th Judicial District Court
Guadalupe County, Texas
Edward F. Shaughnessy, III Appellee’s Counsel
Attorney at Law
206 E. Locust Street
San Antonio, Texas 78212
(210) 212-6700
Bar No: 18134500
Gregory Sherwood Appellant’s Counsel
Attorney at Law
P.O. Box 200613
Austin, Texas 78720
ii
TABLE OF AUTHORITIES
CASE(S) PAGE(S)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ..................... 8
Cockrell v. State, 933 S.W.2d 73 (Tex. Crim. App. 1996) ........................ 6
Colorado v. Connelly, 479 U.S. 170 (1986) .............................................. 5
Corwin v. State, 870 S.W.2d 23 (Tex. Crim. App. 1993),
cert. den. __U.S. __, 115 S.Ct. 95, 130 L.Ed.2d 44 (1995) .................... 4
De La Fuente v. State, 432 S.W.3d 415 (Tex. App.-San Antonio, 2014) . 9
Hernandez v. State, 819 S.W.2d 806 (Tex. Crim. App. 1991),
cert. den. __U.S. __, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992) .............. 4
Madden v. State, 242 S.W.3d 504 (Tex. Crim. App. 2007) ..................... 9
Oursbourn v. State, 259 S.W.3d 159, 177 (Tex. Crim. App. 2008) .......... 9
Robinson v. State, 377 S.W.3d 712 (Tex. Crim. App. 2012) ..................... 9
Schofield v. State, 658 S.W.2d 209 (Tex. App. - El Paso, 1983) ............. 5
Smith v. State, 779 S.W.2d 417 (Tex. Crim. App. 1989) ........................... 5
Vela v. State, 771 S.W.2d 659
(Tex. App. - Corpus Christi 1989, pet. ref'd) ......................................... 5
Walker v. State, 842 S.W.2d 301 (Tex. App. - Tyler, 1992) ..................... 5
STATUTE(S) AND CODE(S)
Art. 38.22 § 6, Tex. Code Crim. Proc. Ann. (West 2013).......................... 7
iii
Art. 38.22 § 2 , Tex. Code Crim. Proc. Ann. (West 2013) ......................... 7
Art. 38.22 § 3, Tex. Code Crim. Proc. Ann. (West 2013) ...................... 7, 8
Art. 38.22 § 7, Tex. Code Crim. Proc. Ann. (West 2013) .......................... 7
Art. 38.22 § 8(2), Tex. Code Crim. Proc. Ann. (West 2013)..................... 8
Art. 38.22 § 6, Tex. Code Crim. Proc. Ann. (West 2014) ......................... 2
Art38.22 § 7, Tex. Code Crim. Proc. Ann. (West 2014) ............................ 2
Art. 38.22 § 2, Tex. Code Crim. Proc. Ann. (West 2014).......................... 2
Art. 38.22 § 6, Tex. Code Crim. Proc. Ann. (West 2013).......................... 3
iv
NO. 04-14-00618-CR
THOMAS LITTLE, § IN THE COURT OF
Appellant
§ APPEALS, FOURTH
v. § JUDICIAL DISTRICT
THE STATE OF TEXAS, § SAN ANTONIO, TEXAS
Appellee
BRIEF FOR THE APPELLEE
THE STATE OF TEXAS
To the Honorable Fourth Court of Appeals:
Now comes, the State of Texas, by and through Edward F. Shaughnessy,
III, Attorney-at-Law, designated attorney for the District Attorney for 25th
Judicial District and files this brief in cause number 04-14-00618-CR. The
appellant was indicted by a Guadalupe County grand jury for two counts of
Burglary of a Habitation in cause number 14-0698-CR-C. (C.R.-4). Following a
jury trial, the appellant was found guilty of the offenses as charged in the
indictment. (C.R.-84) The jury assessed punishment at twenty (20) years of
confinement in the Institutional Division of the Texas Department of Criminal
Justice on each count. The sentences were ordered to run concurrently. (C.R.-
1
84) Notice of appeal was filed and this appeal, alleging two points of error, has
followed. (C.R.-71)
SUMMARY OF THE ARGUMENT
ON BEHALF OF THE APPELLEE
The appellant was not entitled to an instruction regarding the
voluntariness of his statement under the auspices of Art. 38.22 § 6, Tex. Code
Crim. Proc. Ann. (West 2014) because there was no contested evidence
presented before the jury that would demonstrate the absence of voluntariness
as defined in the context of statements made by a criminal accused.
The trial Court did not commit “egregious” error in failing to submit to the
jury a charge to the jury pursuant to the terms of Art. 38.22 § 7, Tex. Code Crim.
Proc. Ann. (West 2014) because there was no evidence presented to the jury,
which raised a factual question as to whether the appellant’s statement was
taken in compliance with Art. 38.22 § 2, Tex. Code Crim. Proc. Ann. (West
2014).
2
RESPONSE TO APPELLANT’S
FIRST POINT OF ERROR
(Appellant’s Brief, Page 7)
In his first point of error the appellant asserts the trial Court erred in
refusing to submit a charge to the jury on the issue of the voluntariness of the
appellant’s videotaped confession pursuant to Art. 38.22 § 6, Tex. Code Crim.
Proc. Ann. (West 2013).
As noted by the defendant during the course of the guilt phase of the trial
the State presented to the jury, two exhibits (State’s Exhibits 43 & 44) that
consisted of a videotaped interview of the appellant conducted by Agent Carlisle
of the Federal Bureau of Investigation. Those exhibits were admitted without
objection from the appellant. (R.R.8-267) After the State had rested, the
appellant rested and closed without offering any testimony. At the conclusion of
the trial the appellant objected to the failure of the Court’s charge to include an
instruction under Art. 38.22, supra. (R.R.10-9) The trial Court entered written
findings of fact and conclusions of law and made them part of the record.
Included within those findings was the following finding regarding the lack of a
factual dispute regarding the voluntariness of the appellant’s videotaped
statement:
The Court finds that the voluntariness of all statements
made by the defendant Thomas Little was uncontroverted
and was not a disputed legal issue for this Court, nor
was it a disputed fact issue for the Jury based on the
totality of the testimony and Defendant’s statements in
State’s exhibits 43 and 44. State Exhibits 34 and 44 were
admitted by the Court into evidence with redactions only
3
With regard for the defendant’s conversations with his
Attorney.
*******************************
The Court further finds that State Exhibits 43 and 44,
the video tapes of defendant’s statement were admitted
without any objection by defense counsel as to the
voluntariness of defendant’s statements. The Court
also finds that the defense did not challenge factually
the voluntariness of defendant’s custodial statements.
(S.C.R.-3)
ARGUMENT AND AUTHORITIES
Although not sufficiently particularized, one of the arguments advanced
by the appellant appears to be an argument that because the appellant discussed
being in physical discomfort during the course of his interview with Agent
Carlisle, that the issue of the voluntariness was therefore raised, and mandated a
jury instruction on the issue. The appellant’s argument fails to adequately
account for the concept of “voluntariness” in the context of confessions.
A jury charge on the issue of the voluntariness of a confession is not
required in the absence of evidence brought before the jury indicating that the
confession was given “involuntarily”. Corwin v. State, 870 S.W.2d 23 (Tex.
Crim. App. 1993), cert. den. _____ U.S. _____, 115 S.Ct. 95, 130 L.Ed.2d 44
(1995); Hernandez v. State, 819 S.W.2d 806 (Tex. Crim. App. 1991), cert. den.
_____ U.S. _____, 112 S.Ct. 2944, 119 L.Ed.2d 568 (1992). An “involuntary
4
statement”, which necessitates exclusion of the evidence on the basis that it was
obtained in violation of the accused's right to due process, is one which flows
from coercive actions on the part of law enforcement officials. Coercive police
activity is a necessary predicate to a finding that a confession is involuntary
under the Fourteenth Amendment's Due Process Clause. Colorado v. Connelly,
479 U.S. 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). For a statement to be
excluded as “involuntary”, in the context of a due process claim, it must be
demonstrated that the statement was the product of coercive police
interrogation techniques (physical or psychological). Smith v. State, 779 S.W.2d
417 (Tex. Crim. App. 1989); Vela v. State, 771 S.W.2d 659 (Tex. App. - Corpus
Christi 1989, pet. ref'd). A mere showing of limited mental capacity on the part
of the accused, in and of itself, is not sufficient to demonstrate an “involuntary”
statement in the context of the exclusionary rule. Colorado v. Connelly, supra, at
S.Ct. pg. 521, 522; Walker v. State, 842 S.W.2d 301 (Tex. App. - Tyler, 1992);
Schofield v. State, 658 S.W.2d 209 (Tex. App. - El Paso, 1983).
In the instant case there was no evidence presented to the jury, which in
any way demonstrated that the statement, which was given by the appellant, was
given as a consequence of coercion on the part of law enforcement. As a
consequence, the trial Court was not required to charge the jury on the issue of
the voluntariness of the appellant’s statement. Cockrell v. State, 933 S.W.2d 73
5
(Tex. Crim. App. 1996). See also: Art. 38.22 § 6, Tex. Code Crim. Proc. Ann.
(West 2013).1
The issue of the “voluntariness” of the appellant’s statement to law
enforcement officials was not contested before the jury. The trial court was not
required to submit the issue to the jury. The appellant’s first point of error is
without merit and should be overruled.
1
Upon the finding by the judge as a matter of law and fact that the statement was voluntarily
made, evidence may be pertaining to such matter may be submitted to the jury and it shall be
instructed that unless the jury believes beyond a reasonable doubt that the statement was
voluntarily made, the jury shall not consider such statement for any purpose nor any evidence
obtained as a result thereof.
6
RESPONSE TO APPELLANT’S
SECOND POINT OF ERROR
(Appellant’s Brief, Page 9)
In his second point of error the appellant contends that the trial court
committed “egregiously harmful error” in failing to charge the jury on the law of
confessions as set forth in Art. 38.22 § 2 & § 3, Tex. Code Crim. Proc. Ann. (West
2013).
An examination of the record reveals that no charge on this issue was
requested by the appellant at the conclusion of the evidentiary phase of the guilt-
innocence portion of the trial. An objection was lodged to the “exclusion of the
38.22 instruction”. The trial court made the following conclusion of law
regarding the necessity of charging the jury on the law applicable to statements
of the accused under the auspices of Art. 38.22 § 7, Tex. Code Crim. Proc. Ann.
(West 2013):
The court also finds that there is no issue raised by the
evidence as to whether or not the Miranda warnings
were given to the defendant prior to any statements
being made during the custodial interrogation;
consequently, there was no fact issue for the jury to
determine pursuant to Article 38.22 Section 7, or
Article 38.23 of the Texas Code of Criminal Procedure
as a matter of law.
(S.C.R.-4)
It appears that the appellant is asserting that he was entitled to have the
jury instructed as to the terms and procedures attendant to the procuring of
custodial statements from an accused as defined by Art. 38.22 § 3, Tex. Code
7
Crim. Proc. Ann. (West 2013). The appellant acknowledges that no such an
instruction was requested at the time of the trial but asserts that the trial court’s
failure to sua sponte instruct the jury regarding the requirements of Art. 38.22 §
3, supra, constitutes “egregious error” that mandates a reversal of his conviction
even in the absence of a requested instruction. See: Almanza v. State, 686
S.W.2d 157 (Tex. Crim. App. 1984).
As noted above, the appellant did not object to the admission of the
exhibits on the grounds that the State failed to demonstrate compliance with
Art. 38.22 § 3, supra. Moreover, the trial Court found that the statement was
taken in compliance with the applicable statutory prerequisites. See: Art. 38.22 §
3 & Art. 38.22 § 8(2) ,supra. Lastly, there was no contested factual issue
presented to the jury as to what warnings were presented to the jury. Stated
another way, there was no issue affirmatively raised by the evidence as to what
warnings were given to the appellant. The only dispute in the trial Court was a
pure legal issue as to whether the warnings as given complied with the dictates
of the Texas Confession Statute.
Absent a factual dispute as what warnings were given to the appellant
prior to the giving of his statement, there was no requirement that the trial Court
sua sponte submit a charge to the jury which would have required/allowed them
to pass on the legal issue as to what constitutes sufficient warnings under the
terms of the applicable statute. The appellant has failed to demonstrate that the
charge as given contained “egregious harm”, because the record is devoid of
8
affirmative evidence raising a dispute as to the substance of the warnings
administered to the appellant. Thus, no error is shown. See: Oursbourn v. State,
259 S.W.3d 159, 177 (Tex. Crim. App. 2008) ( “Article 38.23 requires a jury
instruction only if there is a genuine dispute about a material fact.” “The
evidence on that fact must be affirmatively contested.”); Robinson v. State, 377
S.W.3d 712 (Tex. Crim. App. 2012); Madden v. State, 242 S.W.3d 504 (Tex.
Crim. App. 2007); De La Fuente v. State, 432 S.W.3d 415 (Tex. App.-San
Antonio, 2014, pet ref’d).
The appellant’s second point of error is without merit and should be
overruled.
9
CONCLUSION AND PRAYER
Wherefore premises considered the appellee, the State of Texas would
respectfully request that this Court affirm the judgment of the lower court in all
respects.
Respectfully submitted,
Edward F. Shaughnessy, III
__________________
Edward F. Shaughnessy, III
Attorney at Law
206 E. Locust
San Antonio, Texas 78212
(210) 212-6700
(210) 212-2178 (fax)
SBN 18134500
Shaughnessy727@gmail.com
Attorney for the appellee
The State of Texas
10
CERTIFICATE OF SERVICE
I, Edward F. Shaughnessy, III, attorney for the appellee hereby certify that
a true and correct copy of the instant brief was delivered to Gregory Sherwood,
P.O. Box 2000613, Austin, Texas, 78720, counsel for the appellant, by use of the
United States Postal Service on the _14__ day of May, 2015.
Edward F. Shaughnessy, III
_________________________
Edward F. Shaughnessy, III
CERTIFICATE OF COMPLIANCE
I, Edward F. Shaughnessy, III attorney for the appellee certify that the
instant document contains 2,196 words.
Edward F. Shaughnessy, III
_______________________
Edward F. Shaughnessy, III
11