Dunn v. State

951 S.W.2d 478, 1997 Tex. Crim. App. LEXIS 65, 1997 WL 573162

• Court: Court of Criminal Appeals of Texas
• Decided: September 17, 1997
• Docket: 72264
• Status: Published

Opinions

OPINION

MEYERS, Judge.

Appellant was convicted of capital murder, and the jury’s verdict at sentencing required the trial court to sentence appellant to death. Appeal from this sentence is direct and automatic to this Court. Appellant raises eleven points of error. We affirm.

In his first and second points of error appellant claims the trial court abused its discretion in failing to suppress the evidence obtained as a result of his illegal arrest. Appellant argues his arrest was illegal because the arrest warrant was not signed at the time of his arrest. TEX. CODE CRIM. PROC. art. 15.02, Requisites of a Warrant, requires the signature of a magistrate in order for a warrant to be sufficient. The pertinent facts established at the hearing on appellant’s motion to suppress are undisputed:

The police presented the issuing magistrate with several related affidavits and warrants totaling twenty pages. The magistrate determined probable cause existed for all of the warrants, including appellant’s arrest warrant. He signed nineteen of the twenty pages, inadvertently omitting appellant’s arrest warrant. There, he filled in the date and bond amount, but neglected to sign it. The mistake was not discovered until appellant was in custody. Upon realizing the error, arrangements were made to immediately obtain the magistrate’s signature. Car keys belonging to the victim and a receipt for a car stereo put into the victim’s car after his murder were seized in the search incident to appellant’s arrest. The admission of these items form the basis of appellant’s first point of error. Several hours after appellant’s arrest and after the magistrate signed the arrest warrant, appellant waived his rights and agreed to videotape a statement for police. The admission of this statement is the object of appellant’s second point of error.

Appellant correctly asserts that the warrant under which he was arrested was not in compliance with TEX. CODE CRIM. PROC. art. 15.02(3) because it was lacking the magistrate’s signature at the time of his arrest. TEX. CODE CRIM. PROC. art. 38.23(a) excludes, “evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America.” However, article 38.23(b) provides a good faith exception allowing evidence obtained in good faith reliance on a warrant to be admissible. Article 38.23(b) provides: “It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.” The record establishes that appellant was arrested by officers acting in objective good faith reliance upon a warrant based on probable cause and issued by a neutral magistrate. Appellant argues that article 38.23(b) is inapplicable because a warrant cannot issue without the signature of the magistrate as required by article 15.02(3). The record reflects that the magistrate found probable cause to issue the warrant, signed the accompanying warrants, and intended but inadvertently failed to sign appellant’s arrest warrant. This appears to be exactly the type of situation intended to be covered by article 38.23(b). Evidence obtained by a police officer acting in good faith reliance upon a warrant based upon a magistrate’s determination of probable cause should not be rendered inadmissible due to a defect found in the warrant subsequent to its execution. We hold that appellant’s arrest warrant had issued for purposes of the good faith exception of article 38.23(b). Accordingly, the trial court did not err in denying appellant’s motion to suppress. Appellant’s first and second points of error are overruled.

In his third point of error, appellant claims the trial court abused its discretion in denying his motion to suppress his videotaped confession. According to appellant, neither his confession nor the waiver of his rights was freely, knowingly, and voluntarily given. Therefore, appellant contends, the confession was gained in violation of his due process rights.

The trial court held a hearing to determine if appellant’s confession was given freely, knowingly, and voluntarily. The record from the hearing reflects that appellant was given Miranda warnings before the interview, and only after appellant affirmed that he understood the warnings did the interview commence. After viewing the videotaped confession and listening to the testimony of those present during the reading of the warnings, the trial court determined that appellant understood his rights and that the confession was admissible. Our own review of the record reflects that when appellant was initially informed of his rights, he indicated that he did not understand the right to counsel. The officer then carefully explained the terms to appellant after which appellant indicated that he understood his rights. Appellant offered no evidence at the hearing and points to nothing specific in the record or facts to support the claim that his confession was involuntary. The trial court did not abuse its discretion in denying appellant’s motion to suppress his videotaped confession. Appellant’s third point of error is overruled.

In his fourth point of error appellant contends the trial court abused its discretion in denying his motion for directed verdict because the State failed to establish the victim was Nicolas West, the person named in the indictment. Appellant is essentially questioning the sufficiency of the evidence to support this conviction. The sufficiency of the evidence is reviewed in the most favorable light to the verdict to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The record reflects that Detective Dale Hukill was asked during his testimony if the victim had been identified, to which he responded the victim was “Nicolas West.” Testimony from the victim’s roommate also identified Nicolas West as the victim. The evidence is sufficient to support a finding by a rational trier of fact that the victim was Nicolas West. Appellant’s fourth point of error is overruled.

In his fifth point of error, appellant claims the trial court failed to advise the experts who examined appellant to determine his competency to stand trial, as required by TEX. CODE CRIM. PROC. art. 46.02(3)(c). Article 46.02(3)(c) requires the court to, “advise any expert appointed pursuant to this section of the facts and circumstances of the offense with which the defendant is charged and the meaning of ineompetency to stand trial.” Appellant failed to preserve error, if any, for review. The record reflects that on the morning the trial began, appellant assured the court his expert had conducted all the tests and interviews necessary for his evaluation and no complaint or objection was made that the court had not informed the expert of the facts and circumstances of the case. Appellant’s fifth point of error is overruled.

In points of error six through eleven, appellant sets forth various claims that the trial court abused its discretion by overruling his motions regarding the constitutionality of the Texas death penalty scheme. The two paragraph discussion following the listing of these six points of error appears to pertain only to point of error eleven, as to which appellant argues that failing to instruct the jury that the presumption of innocence applies to the special issues “is violative of Appellant’s Fifth and Fourteenth Amendments to the United States Constitution’s protections of due process of law as well as Appellant’s due process protections under the Texas Constitution.” Appellant otherwise cites no authority and presents no argument. Rule 74(f) of the Texas Rules of Appellate Procedure requires a brief of the argument to include, “such discussion of the facts and the authorities relied upon as may be requisite to maintain the point at issue.” These points are multifarious, inadequately briefed and present nothing for review. See Martinez v. State, 924 S.W.2d 693, 698 (Tex.Crim.App.1996). Points of error six through eleven are overruled.

The judgment of the trial court is affirmed.