Delgado v. State

840 S.W.2d 594, 1992 Tex. App. LEXIS 2320, 1992 WL 208600
CourtCourt of Appeals of Texas
DecidedAugust 31, 1992
DocketNo. 13-91-194-CR
StatusPublished
Cited by8 cases

This text of 840 S.W.2d 594 (Delgado v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delgado v. State, 840 S.W.2d 594, 1992 Tex. App. LEXIS 2320, 1992 WL 208600 (Tex. Ct. App. 1992).

Opinion

OPINION

NYE, Chief Justice.

A jury found appellant guilty of murder and sentenced him to twenty years in prison. Appellant brings twenty-one points of error. We affirm the trial court’s judgment.

The victim, Clinton McCarley, was found dead in his apartment in Harlingen. His son, Clint McCarley, Jr., testified that the same afternoon he was at the apartment complex, outside, when he saw a Hispanic male leaving in his father’s car. This vehicle caught his attention because the driver was going at an unusually high rate of speed. McCarley stated that the man in the car was wearing a white or grey t-shirt, and he had a mustache and a unique haircut, much like appellant’s. McCarley could not positively identify appellant as the car's driver because of the distance.

Police encountered appellant several days later. He voluntarily accompanied them to the police station to answer questions. After police gave him Miranda warnings, appellant made a statement denying involvement in the crime. Later that same afternoon, a different officer questioned appellant and obtained a second statement in which appellant admitted killing McCarley. According to appellant’s confession, he had sexual relations with the victim the morning of the incident. After intercourse, the victim told appellant that he preferred younger men. Appellant became angry. Grabbing what he thought was a lamp, appellant struck the victim on the head and he fell to the floor. Appellant placed the victim half-on, half-off the couch, picked up a vacuum cleaner, and struck the victim on the head repeatedly. He took the victim’s wallet and car keys and left the scene in the victim’s car. He abandoned the car in a field outside Harlin-gen.

By point five, appellant complains that his confession was tainted by an illegal arrest. Nowhere in appellant’s pretrial motion to suppress, the suppression hearing, or trial did he object that he was illegally arrested. Since the point was not raised below, it has been waived. Fancher v. State, 659 S.W.2d 836, 839-40 (Tex.Crim.App.1983); Niehouse v. State, 761 S.W.2d 491, 494 (Tex.App.—Dallas 1988, no pet.).

By his sixteenth point, appellant complains that the trial court erred in failing to make findings of fact and conclusions of law on the voluntariness of appellant’s written confession. We abated the appeal and ordered the trial court to submit findings. The court has done so, thereby curing the error.

We now address appellant's seventeenth point, in which he claims the trial court erred by admitting the written confession because it was involuntary. The trial court conducted a hearing on the admissibility of appellant’s confession out of the jury’s presence. See Tex.Code CRIM. ProcAnn. art. 38.22, § 6 (Vernon 1979).

[597]*597At a hearing on the voluntariness of a confession, the trial court is the trier of fact and the exclusive judge of the witnesses’ credibility and of the weight to give their testimony. Nance v. State, 807 S.W.2d 855, 866 (Tex.App.—Corpus Christi 1991, pet. ref’d). The trial judge determines voluntariness from the totality of the circumstances. Gonzales v. State, 807 S.W.2d 880, 832-33 (Tex.App.—Houston [1st Dist.] 1991, pet. ref’d). Here, the trial court found that Officer Muniz read appellant his rights several times and that appellant understood them. Appellant never sought to exercise any of those rights. Moreover, no credible evidence supported any allegation that police obtained the confession by threats or coercion or at a time when appellant was intoxicated, ill, or incompetent. The record supports no claim that the trial court abused its discretion in finding that the confession was voluntary. We overrule point seventeen.

By point fifteen, appellant claims that the trial court erred when it submitted a copy of State’s Exhibit 25 (appellant’s confession) to the jury. After the jury retired, the prosecutor asked to substitute a clean copy of the confession for the one in evidence. She explained that during trial she underlined a sentence in the court’s copy of the confession. She stated that she whited-out the marks she made, xeroxed the document, and wished to submit the clean copy. The copy was in every way identical to the court’s original copy, except for the absence of underlinings. Over appellant’s objection, the trial court allowed the substitution. The Rules of Criminal Evidence state that a duplicate is admissible to the same extent as an original unless a question is raised regarding the authenticity of the original or if, under the circumstances, it would be unfair to admit the duplicate in lieu of the original. Tex. R.CRIM.Evid. 1003. Since appellant made no argument or presented any proof of unfairness, nor did he raise an issue of authenticity or accuracy, we find no error in the trial court’s ruling. See Acosta v. State, 752 S.W.2d 706, 709 (Tex.App.—Corpus Christi 1988, pet. ref’d); Maixner v. State, 757 S.W.2d 21, 24 (Tex.App.—Beaumont, 1988, no pet.).

By point eighteen, appellant argues that the trial court erred in admitting one of the oral statements he made to police. The point is overruled because appellant failed to preserve error. At trial, appellant claimed that the statement was inadmissible hearsay. On appeal, he claims that admission of the oral statement violated article 38.22 of the Texas Code of Criminal Procedure. The argument at trial differs from the complaint raised on appeal. Therefore, it has been waived. Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App.1986); Baldonado v. State, 745 S.W.2d 491, 496 (Tex.App.—Corpus Christi 1988, pet. ref’d).

By point twenty, appellant complains that the trial court erred in allowing Officer Flores to recite an oral statement made by appellant. Flores testified that he was on patrol when he encountered appellant riding his bike. Flores contacted his superior by radio. His superior suggested that Flores ask appellant if he was willing to accompany Flores to the police station for questioning. Appellant agreed to go and got into Flores’s squad car. On the way, appellant asked Flores “what this was all about.” Flores answered that he did not know. ■ Appellant responded, “I bet’cha it’s about that guy that was killed in those apartments.” Flores answered, “I don’t know, I can’t say. Please don’t say anything to me.”

Article 38.22 of the Code of Criminal Procedure prohibits the admission of any oral statement the accused makes as a result of custodial interrogation, unless the statement is recorded and preceded by Miranda warnings. The State introduced no recording of appellant’s statement. Flores testified that he did not give appellant Miranda warnings before appellant made the statement. The issue presented by this point of error is whether appellant’s statement resulted from custodial questioning, therefore rendering it inadmissible. See Shiflet v. State, 732 S.W.2d 622, 623 (Tex.Crim.App.1985). In order for the statement to be admissible under article 38.22, [598]*598we must find that appellant was not in custody and that his oral admission was given freely, voluntarily, and without compulsion or persuasion. Shiflet, 732 S.W.2d at 623.

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Bluebook (online)
840 S.W.2d 594, 1992 Tex. App. LEXIS 2320, 1992 WL 208600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delgado-v-state-texapp-1992.