Creager v. State

952 S.W.2d 852, 1997 Tex. Crim. App. LEXIS 57, 1997 WL 560901

• Court: Court of Criminal Appeals of Texas
• Decided: September 10, 1997
• Docket: 1381-95
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WOMACK, Judge.

We granted discretionary review of this case to decide if the court of appeals had correctly analyzed the appellant’s claim that his written statement was involuntary.

The appellant was interrogated by the 271st Judicial District Attorney’s investigator, who obtained an arrest warrant from a magistrate in Jack County and went to Hobbs, New Mexico, where the appellant was working. After the appellant was arrested, the investigator interrogated him in the Hobbs Police Department’s jail. The interrogation was tape-recorded, and the pre-trial evidence included the parties’ separate transcripts of the recording of the interrogation. Using a printed form, the investigator read the appellant the warnings that are set out in Code of Criminal Procedure Article 38.22, § 2(a). The appellant orally waived his right to remain silent and signed a waiver on the printed form.

After the warnings and waivers, the investigator introduced himself as a specialist in child abuse eases. He asked the appellant to look at a doctor’s report about the child who was alleged to be the victim. (Later he showed the appellant photographs of the child’s bruises.) He told the appellant that he had talked to the witnesses and the child, and that he was very satisfied with what the child told him. Then he said, “Wes, I’m here to try to make things easier for you. I drove all this distance to try to make things work for you on your behalf. OK? [The child] has told me that you abused him.”

The appellant repeatedly denied his guilt, and the investigator repeatedly insisted that a two-and-a-half year old child could not have been mistaken or have invented such a story. The investigator remarked that the appellant was making it hard on himself and everybody. The appellant said he did not want to make it rough on the child, whom he loved, and asked, “What kind of route can we go if I say that I did this and I get help. Because if I did this, I want help. Because, well it could happen again to some other child if I did this.” The investigator gave the appellant some information about the range of punishment, early release, probation eligibility, and plea bargaining.

INVESTIGATOR: Which may be probation, it may be sixty years, but no matter what it is you’d have the final outcome on that say_ Just because you give a statement and tell about what happened doesn’t mean that you can’t go to court, because you can still go to court. Because you can fight that sentencing. OK?

APPELLANT: But that’s the offer that there is, is a ten year probation and that means I’m marked for ten years as a sex offender, is that right?

INVESTIGATOR: No matter what, yeah.

APPELLANT: It’s never erased, it’s always on my record for as long as I live and breathe.

INVESTIGATOR: That’s correct.

APPELLANT: And what you also told me is that there is no way I can beat this.

INVESTIGATOR: No, Wes, you can’t beat something that happened. [Etc.]

The appellant said that he believed himself to be innocent. The investigator replied that the appellant was not innocent, that he needed to face the facts, and that the investigator, who was “kind of the middle man,” was there to “get your story and take it back to the DA.... I go back and tell the DA what you told me and it goes from there.”

For a while the appellant continued to profess belief in his innocence, but he later admitted that he did sexually assault the child. He wrote a confession on a form that contained the warnings required by Code of Criminal Procedure Article 38.22, § 2(a).

Before his trial the appellant filed a “motion for hearing on voluntariness,” which asked the court “to determine whether [his] admission and confessions were voluntarily made by the Defendant.” The trial court received evidence at a pre-trial hearing, including the warnings that were read to the appellant, transcripts of the tape-recordings of his interrogation, documents that were shown the appellant during interrogation, and the appellant’s written statement. On the day of trial the judge announced that he would “refuse or deny the Defendant’s motion to suppress the confession,” and that “at an appropriate time, the Court will make the appropriate findings of fact and of law in that connection—in connection with the Jackson v. Denno hearing.” No such findings appear in the record.

When the appellant’s written confession was offered at trial his attorney urged “our previous objection,” which was overruled. The jury convicted the appellant after fifteen minutes of deliberation. The court assessed punishment of 50 years’ confinement.

The appellant’s point of error in the court of appeals was that the trial court abused its discretion in admitting a statement that was “the result of improper persuasion by the investigator who conducted the interrogation.” The appellant said the improper tactics included (1) false and misleading statements of inducement that the investigator was there on appellant’s behalf to make things easier for him, (2) a statement that the appellant would be found guilty if he went to trial, (3) the false statement of inducement that the investigator was a middle man who could help get a plea bargain offer from the district attorney, (4) a statement that by giving a written confession the appellant would be in a position to obtain a plea bargain, and (5) confirmation of the appellant’s mistaken belief that he had been offered ten years’ probation for a confession.

The court of appeals found error, saying:

Appellant and the State agree, that in order to induce a confession, a promise must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that a defendant would speak untruthfully....

In affirming Gipson [v. State, 819 S.W.2d 890 (Tex.App.—Dallas 1991), aff'd, 844 S.W.2d 738 (Tex.Cr.App.1992) ], the Court of Criminal Appeals validated the reasoning that it is improper to warn an accused his confession might be used for him or on his behalf. The investigator in that instance told the accused that his confession “would be his story he could use in court” and that “he could imply that any way he wanted to.” Gipson, 844 S.W.2d at 739. Although the investigator avoided admitting that he told the accused the statement would be used in his favor, he acknowledged that the language was ambiguous and could be interpreted by the defendant as it being advantageous for him to confess. The interrogation of appellant by [the investigator in this case] was, if anything, less ambiguous than that in Gip-son.

Among the first comments made by [the investigator] to appellant was the statement, “I’m here to try to make things easier for you. I drove all this distance to try to make things work for you on your behalf.” After telling appellant that [the investigator] “(had) the evidence to take you to court and ... put you in prison” and reading him the statements from family members whom [the child] told about the assault, [the investigator] then advised appellant that [the investigator] was “trying to guide you through ... what you need to do here.”

Most troubling to us is the following statement by the investigator:

“I’m saying to you, that you don’t have to go to trial on this case, you don’t have to go to trial at all. You can plea bargain this case out. You don’t have to go to trial. It’s up to you. But it’s gonna go to trial unless you and I can set [sic] down and you know, talk about what happened.” (Emphasis added.)

[The investigator] some time later added, “All I can tell you is why I’m here. I’m here to take your story back to the District Attorney to tell him what happened.”

In light of the language held improper in Gipson, we conclude the investigator’s comments were improper in this instance. We find the confession was the product of improper persuasion and should have been suppressed.

Creager v. State, No. 2-94-240-CR, slip op. at 9-10 (Tex.App.—Fort Worth, Nov. 28, 1995) (unpublished). Finding the error harmful, the court of appeals reversed the judgment of conviction and remanded the case to the district court. We granted discretionary review.

The court of appeals’ opinion erred in two respects. First, it placed reliance on Gipson, a case in which a rule about statutory warnings was improperly used to resolve an issue of voluntariness. Second, the court of appeals accepted the parties’ agreement that the issue of voluntariness could be completely resolved by the rule that a confession is inadmissible if it was induced by a certain kind of promise. That rule is not sufficient to resolve all the issues about the voluntariness of this statement.

For or Against

A warning to a suspect before interrogation that a statement could be used “for or against” the suspect is an impropriety that, of itself, can require that the statement be held inadmissible. The rule of the inadmissibility of a statement made after a warning that it could be used “for or against” a suspect has a statutory basis. The warning now appears in Code of Criminal Procedure Article 38.22, § 2(a)(1), which requires that to be admissible a statement of an accused made as a result of custodial interrogation must show that the suspect was warned “that any statement he makes may be used against him at his trial.” The requirement was first enacted in Article 662 of the Code of Criminal Procedure of 1856, which excluded the statement of an accused made while in custody unless the accused was “first cautioned that it may be used against him.”

The first application of the statute came in Unsell v. State, 39 Tex.Crim. 330, 45 S.W. 1022 (1898).¹ The arresting officer had “warned the defendant, and told him that anything he would say could be used against him or for him on his trial.” 39 Tex.Crim. at 331, 45 S.W. at 1023. About a half hour later Unsell made a remark about some cattle in his inclosure, which was admitted in evidence. This Court said (ibid.):

Without going into a discussion of the various questions, suffice it to say that this testimony was inadmissible, because, among other reasons, the defendant was not warned as required by the statute. Before a confession can be used against a defendant when made under arrest, he must be warned and cautioned that said confession can be used against him. To warn him that it may be used for him would be holding out an inducement.

The requirement that the defendant be warned that a statement may be used against him has been reenacted repeatedly in a series of amendments to the statute. This Court has consistently held that a statement is inadmissible when it followed a warning that violated the statute in saying that the statement might be used “for or against” the suspect.

A more recent, constitutionally-based requirement of warning has not been construed so strictly. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court said that the Fifth Amendment required at least some warnings before custodial interrogation, one being that a person in custody must first be warned “that anything he says can be used against him in a court of law.”² 384 U.S. at 479, 86 S.Ct. at 1630. The Fifth Amendment right is not violated when a suspect is warned that his statement “could be used against him, or could be used for him.” Gardner v. State, 733 S.W.2d 195, 202-03 (Tex.Cr.App.1987).

This case does not involve statutory or constitutional warnings before the interrogation. There is no question that the appellant was given proper warnings before the interrogation. The issue is the significance of the interrogator’s remarks dining the interrogation which might have led the appellant to believe that a confession would help him. Such remarks might be a circumstance which bear on the voluntariness of the appellant’s statement, but they would not necessarily render the statement inadmissible. Voluntariness is decided by considering the totality of the circumstances under which the statement was obtained. Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963).

In Gipson v. State, 819 S.W.2d 890 (Tex.App.—Dallas 1991), aff'd, 844 S.W.2d 738 (Tex.Cr.App.1992), the court of appeals resolved a voluntariness question by misusing the per se rule that violation of the warning statute makes the statement inadmissible. There was no question that Gipson had been given proper warnings. The interrogator testified that while he was taking the confession he told Gipson “it would be his story he could use in court-[I]t would be presented to the Grand Jury and also presented in Court, just like he told it.” The interrogator agreed with defense counsel that he was telling Gipson that the statement could be used on his behalf or against him. Gipson, 819 S.W.2d at 894. The court of appeals held, “A per se rule of inadmissibility applies if the evidence is uncontroverted that the officer told the accused that his confession could be used ‘for or against him.’” Ibid,

But as we have explained above, the per se rule of inadmissibility is for a misstatement of the statutory warning given before interrogation, not for remarks made during interrogation. The court of appeals cited Dunn v. State, 721 S.W.2d 325 (Tex.Cr.App.1986). It did not mention that the opinion in Dunn represented the views of only two judges, which six judges declined to join. Dunn involved similar facts: There was no question that Dunn had been given proper warnings; the interrogator told Dunn that “he would stand a better chance ... of not getting the death penalty, perhaps” if he confessed, and the officer agreed with defense counsel that this meant a statement could be used for or against him. Dunn, 721 S.W.2d at 340. At one point, Judge Teague’s opinion said, “We find and hold from a totality of the circumstances that the appellant was induced to confess by the conduct of [the officer] and the admissions by him settle beyond question that the appellant’s confession was not a voluntary one.” Id. at 342. This was the law to be applied to the question of voluntariness which the ease presented. But at another point the opinion said, “As a matter of law, [the officer’s] improper warning caused the confession to become inadmissible evidence at appellant’s trial.” Ibid. This was a misstatement of fact and a misapplication of the law about statutory warnings, because there was no improper warning before the interrogation. We disavow any implication in the Dunn opinion that the per se rule of inadmissibility that results from a violation of the warning statute applies to an officer’s remarks made during the subsequent interrogation.

We cannot agree with the court of appeals’ statement that we “validated” this reasoning when we affirmed Gipson. The only grounds on which we granted discretionary review in Gipson concerned the harmfulness of the trial court’s ruling admitting the confession. Gipson, 844 S.W.2d at 739. We did not review the admissibility of the confession.

The admissibility of the appellant’s confession in this case cannot be resolved by applying the per se rule for violation of the warning statute. The issue is the voluntariness of the statement.

Promises

The court of appeals also relied on the parties’ agreement that the controlling test is stated in Fisher v. State, 379 S.W.2d 900, 902 (Tex.Cr.App.1964), which quoted 1 Branch’s Annotated Penal Code of Texas 95 (2nd ed., 1956):

To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority and it must also be of such character as would be likely to influence the defendant to speak untruthfully.

This is undoubtedly the rule to resolve a claim that a statement was involuntary simply because it was induced by an improper promise. But the appellant’s claim in this case includes more circumstances than the making of a promise.

The totality of the circumstances should be considered, as we have said. Article 38.21 of the Code of Criminal Procedure requires that the statement have been “freely and voluntarily made without compulsion or persuasion.” Even without the statute, the courts of this state have held that statements must not have been “obtained by the influence of hope or fear, applied by a third person to the prisoner’s mind.” Cain v. State, 18 Tex. 387, 390 (Tex.1857). The ultimate question is whether the suspect’s will was overborne. Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Cr.App.1985).

Trickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process. Dotsey v. State, 630 S.W.2d 343 (Tex.App—Austin 1982).

To decide this case the court of appeals must examine the totality of the circumstances surrounding the acquisition of the statement to determine whether it was given voluntarily. Armstrong v. State, supra, 718 S.W.2d at 693.

If the decision turns on issues of fact that were disputed in the trial court, we remind the court of appeals that written findings of fact are required by Code of Criminal Procedure Article 38.22, § 6, and that they may be obtained by a remand to the trial court. Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976).

The judgment of the court of appeals is vacated and the cause is remanded to that court for further proceedings consistent with this opinion.

1 . The first discussion of the requirement of the statute was in the case of Unsell's codefendant, Guinn v. State, 39 Tex.Crim. 257, 45 S.W. 694 (1898), but the discussion there was obiter dictum because Guinn had not made a statement.

2 . The substance of this particular Miranda warning was added to the Texas confession statute in 1977. S.B. 157, 65th Legislature—Regular Session, Acts 1977, ch. 348, § 2. It appears in Article 38.22 as Section 2(a)(2): "any statement he makes may be used as evidence against him in court.”