Erich W. Norris v. Starbuck`s Corporation, D/B/A Starbuck`s Coffee Company

• Court: Court of Appeals of Texas
• Decided: September 19, 2003
• Docket: 06-03-00111-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00111-CV

ERICH W. NORRIS, Appellant

V.

STARBUCK'S CORPORATION, D/B/A

STARBUCK'S COFFEE COMPANY, Appellee

On Appeal from the 165th Judicial District Court

Harris County, Texas

Trial Court No. 2000-50870

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Erich W. Norris has filed a motion for extension of time to file a notice of restricted appeal, along with the notice of restricted appeal. He relies on Tex. R. App. P. 26.3 as authority for permitting him to bring an appeal within six months of the judgment.

For context, Norris originally filed an appeal from a summary judgment taken against him in his lawsuit against Starbuck's Corporation, d/b/a Starbuck's Coffee Company. On December 3, 2002, we dismissed his appeal for want of prosecution. We issued our mandate on February 10, 2003.

Norris is now attempting to file an appeal to this Court from our December 3 opinion.

This Court has jurisdiction over appeals from certain trial courts, as provided by constitutional fiat. Tex. Const. art. V, § 6. We do not have jurisdiction over an appeal taken to this Court from our own judgment.

We dismiss the appeal.

Jack Carter

Justice

Date Submitted: September 18, 2003

Date Decided: September 19, 2003

an inculpatory statement was compelled contrary to the United States Constitution's Fifth Amendment privilege against self-incrimination. U. S. Const. amend. V; Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986); Griffin v. State, 765 S.W.2d 422, 429-30 (Tex. Crim. App. 1989).

The law surrounding the issue of voluntariness of a statement is well established. We judge the voluntariness of a statement by looking at the totality of the circumstances surrounding the making of the statement, including both the characteristics of the accused and the details of the interrogation. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A statement is voluntarily made if it is the product of an essentially free and unconstrained choice by its maker. See Schneckloth v. Bustamonte, 412 U.S. at 225; State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999). Conversely, a statement is involuntary for purposes of federal due process if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. See Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). Once a defendant moves to suppress a statement on the ground of involuntariness, the due process guarantee requires the trial court to hold a hearing outside the presence of the jury concerning the admissibility of the statement. Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Tex.  Code  Crim.  Proc.  Ann.  art. 38.22,

§ 6 and Tex. R. Evid. 104(c) have the same requirement. At this hearing, the state has the burden of proof to show by a preponderance of the evidence that the statement was freely and voluntarily made. See Griffin v. State, 765 S.W.2d 422, 429 (Tex. Crim. App. 1989).

Dawson contends his statement was involuntary because: 1) he did not write it himself; 2) he did not fully understand his rights; 3) he requested, but was denied, an attorney; 4) he was coerced and intimidated into making the statement, and he was ignored when he stated that he did not wish to make a statement; 5) the police failed to make a videotape or audiotape of the session; 6) he did not effectively read the statement because he cannot read or write the English language; and 7) he was promised a lower bond and lower criminal charge if he confessed, and he relied on such promise. Darryl Griffin, the police officer who took Dawson's statement, testified at the hearing, as did Dawson himself. Thus, the trial court's conclusion that Dawson's statement was voluntary was based on a direct evaluation of the witnesses' credibility and demeanor.

Griffin testified that before questioning and in the presence of a special agent for the Federal Bureau of Investigation, he verbally gave Dawson each particular warning necessitated by Miranda and Article 38.22. Dawson indicated that he understood those rights and that he could read and write. After Dawson was handed a form entitled "Voluntary Statement" at the top of which the same warnings were repeated, Dawson read and initialed alongside each warning. Griffin then wrote Dawson's statement as it was related to him, and Dawson signed the statement after reading it and making corrections. According to Griffin, at no time did he promise Dawson anything of value or say anything to coerce or force Dawson to give a statement; and at no time did Dawson request an attorney or indicate that he wished to terminate the interview. The interview took place in Griffin's office.

Dawson testified that he explicitly told the police he did not want to make a statement, that he wanted a lawyer, and that he had stated as much to other officers in addition to Griffin. He further testified that Griffin told him that they were going to upgrade the charges to first-degree murder, and that Griffin also suggested that if Dawson cooperated and gave a statement, Dawson could get a lower bond. At some point in the interrogation, Griffin handed Dawson the written statement of Russell Leonard, who was also charged with the murder of Francois Dean. Dawson read Leonard's statement. Dawson testified that although he initialed each warning on the voluntary statement form and signed it at the end, most of the words written therein were not his, but rather were Griffin's and the special agent's words. Dawson cooperated only to get a lower bond.

Most of Dawson's complaints on appeal, enumerated above, are purely a question of witness credibility and demeanor. This is true regarding Dawson's contentions that he did not fully understand his rights, that he was coerced and intimidated into making the statement, that he was ignored when he stated he did not wish to make a statement, and that he was promised a lower bond and a lower criminal charge if he confessed. The trial court made specific findings of fact that these contentions were not true, and such findings are supported by Griffin's testimony. We will therefore not disturb them.

Dawson's contention that involuntariness is shown by the fact that he did not write the statement himself is contrary to the express provisions of Article 38.22, which allow statements even if only signed by an accused. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6. His contention that the interrogation had to be videotaped or audiotaped is unsupported by any statute or case law. Here, we are not dealing with the admission of an oral statement. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon Supp. 2002). While the absence of taping where equipment is readily available may be relevant to the credibility of a witness testifying about a statement, measuring credibility is the province of the trial court. Finally, Dawson's contention that he cannot read or write the English language is belied by his own testimony that he read Leonard's statement.

The evidence supports the trial court's finding that no coercive conduct occurred with respect to the taking of Dawson's statement. Nothing in the totality of these circumstances suggests that Dawson's statement was made involuntarily.

The judgment is therefore affirmed.

William J. Cornelius

Chief Justice

Date Submitted: February 18, 2002

Date Decided: February 21, 2002

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