Garcia v. State

919 S.W.2d 370, 1996 Tex. Crim. App. LEXIS 35, 1994 WL 706957

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 1996
• Docket: 71417
• Status: Published

Opinions

OPINION

PER CURIAM.

■ Appellant was convicted of capital murder. Tex.Penal Code Ann. § 19.03(a)(2). The jury affirmatively answered the statutory punishment issues and the trial judge sentenced appellant to death. Tex.Code Crim.Proe. Ann. arts. 37.071, § 2(b) and (e). Appeal to this Court is automatic. Id. at (h). Appellant raises seventy points of error, including challenges to the sufficiency of the' evidence at both the guilt/innocence and the punishment stages of trial. However, because we sustain point of error forty-two, we address only this point of error as well as appellant’s challenges to the sufficiency of the evidence.

I.

SUFFICIENCY OF THE EVIDENCE AT GUILT/INNOCENCE

The evidence at trial established that on December 9, 1990, appellant and his co-defendant, Christopher Vargas, entered a liquor store in Plano. Appellant was armed with a single shot, twenty gauge, sawed-off shotgun and carried extra ammunition. Appellant ordered the store clerk to retrieve the money from the cash register while Vargas took beer to their car.

Appellant ordered the clerk into a small room and on his knees. Appellant then shot the clerk in the abdomen. The clerk managed to get to his feet, threw a chair at appellant and escaped, running around the building and over a fence. Appellant reloaded, pursued the clerk, and shot him in the back of the head. By the time authorities arrived at the scene, appellant and Vargas had departed. The clerk later died from his shotgun wounds.

Approximately one month later, appellant, his common law wife, and Vargas parked at the gas pumps of a convenience store in Plano. While appellant’s wife pumped gas, appellant and Vargas entered the store with the same shotgun used at the liquor store. The clerk, who was talking on the telephone with his girlfriend, asked her to call the police.. The clerk was taken to a back room, placed on his knees and shot in the back of the head. While appellant contends Vargas shot the clerk, the State presented fingerprint evidence which indicated Vargas again carried beer to the car while appellant shot the clerk.' Appellant and Vargas were arrested at the convenience store.

The instant prosecution is for the liquor store murder. Appellant executed a written statement concerning this offense, which, in part, provides:

CHRIS VARGAS & I ROBBED A LIQUOR STORE & I KILLED THE CLERK. THE LIQUOR STORE WAS BEHIND A 7-11 STORE AT PLANO PKWY & AVE K.

⅜ ⅜ ⅜ ⅜ ⅜ ⅜

WE WAITED IN THE LIQUOR STORE PARKING LOT UNTIL THE CUSTOMERS ALL LEFT. BOTH CHRIS & I WENT INTO THE LIQUOR STORE & I PULLED A 20 GA. SAWED-OFF SHOTGUN ON THE CLERK. I HAD THE CLERK GIVE ME THE MONEY OUT OF THE CASH REGISTER....

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I SHOT THE CLERK WITH THE SHOTGUN. THE CLERK STARTED COMING AT ME & THREW A CHAIR AT ME & THEN HE RAN OUTSIDE. I LOADED THE SHOTGUN & SHOT THE CLERK AGAIN OUTSIDE THE STORE. THE CLERK HAD JUMPED OVER A FENCE & WAS IN SOME GRASS WHEN I SHOT HIM THE 2ND TIME.

At trial, Bobby Flores testified he was at Vargas’ house on the night of the liquor store murder. Flores testified appellant and Vargas left the house and returned with beer and a lot of money. When appellant was asked where the beer and money came from, appellant stated he went into a store, asked the clerk for the money, took the beer, shot the clerk and left.

In point of error number sixty-eight, appellant contends the evidence is insufficient to show he committed, or attempted to commit a robbery. To review the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential 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); and, Dunn v. State, 721 S.W.2d 825, 327 (Tex.Cr.App.1986). Even evidence erroneously admitted is properly considered in a sufficiency review. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App.1993). Therefore, we hold, after considering appellant’s written statement and the other evidence presented, a rational trier of fact could have found appellant committed, or attempted to commit, robbery. Point of error number sixty-eight is overruled.

II.

THE WRITTEN STATEMENT

A.

In point of error forty-two appellant contends the trial judge erred in admitting his written statement concerning the liquor store murder. Specifically, appellant contends the written statement did not comply with Tex. Code Crim.Proc.Ann. art. 38.22, § 2(b). Art. 38.22, § 2, provides:

See. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement ... received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

Id. (Emphasis added.)

The face of the form upon which appellant’s written statement appears contained the following language:

I have been duly warned and advised by [the Detective], a person who has identified himself as an officer of the Plano Police Department, that:

(1) I have the right to remain silent and not make any statement at all and any statement I make will be used against me at my trial;

(2) Any statement I make will be used as evidence against me in court;

(3) I have the right to have a lawyer present to advise me prior to and during questioning;

(4) If I am unable to employ a lawyer, I have the right to have a lawyer appointed (without cost to me) to advise me prior to and during my questioning; and

(4) [sic] I have the right to terminate the interview at any time.

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I have read each page of this statement consisting of [# omitted] page(s), each page of which bears my signature, and corrections, if any bear my initials, and I certify that the facts contained herein are true and correct. I further certify that I have made no request for the advice or presence of a lawyer before or during any part of this statement, nor at any time before it was finished did I request that this statement be stopped. I also declare that I was not told or prompted what to say in this statement.

[Time, date and signature lines omitted.]

Clearly, this form contained the warnings required by art. 38.22, § 2(a). However, appellant contends the statement was inadmissible under art. 38.22, § 2(b) because it did not show, on its face, the waiver of each of the rights contained within the art. 38.22, § 2(a) warnings. We agree. Under art. 38.22, § 2(b) the written statement must show on its face the knowing, intelligent and voluntary waiver of each of the rights of art. 38.22, § 2(a). Art. 38.22, § 2(b) is clear and unambiguous, and “the Legislature is constitutionally entitled to expect that [we] will faithfully follow the specific text that was adopted.”¹ Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991).

The State contends appellant’s waiver of his rights was demonstrated when he initialed each warning on the statement. The State’s contention is supported by the trial judge’s findings of fact when he overruled appellant’s motion to suppress the statement. While we ordinarily will not disturb factual determinations made by the trial judge, White v. State, 779 S.W.2d 809 (Tex.Cr.App.1989), we hold the trial judge’s findings in the instant case are not supported by the record. The trial judge’s findings can not change what is readily apparent (or more appropriately, lacking) from the face of written statement. We hold that appellant, by initialing each warning reflected on the written statement form, did not affirmatively waive the rights contained within the warnings. At best, appellant’s initials only indicated he read and understood those warnings. The detective who interrogated appellant testified he “had [appellant] read those rights” and then told him “if he understood them I wanted him to initial them, which he did.” (Emphasis added.)

The State next contends the final paragraph on the written statement form can be interpreted as a waiver. The State concedes the final paragraph does not contain the word “waiver” and does not address all of the rights enumerated in art. 38.22, § 2(a). But, citing Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985), and Hardesty v. State, 667 S.W.2d 130 (Tex.Cr.App.1984), the State contends the final paragraph is in substantial compliance with art. 38.22, § 2(b). The State’s reliance on Penry and Hardesty is misplaced. In each case we considered the admissibility of a written statement which provided on its face all the art. 38.22, § 2(a) warnings, only not in the exact statutory language. Noting that all the warnings required by art. 38.22, § 2(a) appeared on the face of the statement, and that the language conveyed the exact meaning of the statute, we held the written statements substantially complied with art. 38.22, § 2(a). Penry, 691 S.W.2d at 643; and, Hardesty, 667 S.W.2d at 135. We considered such a situation to be “technical non-compliance with the statute.” Eddlemon v. State, 591 S.W.2d 847, 850 (Tex.Cr.App.1979) (citing Bubany, The Texas Confession Statute: Some New Wine in the Same Old Bottle, 10 Tex.Tech.L.Rev. 67, 73 (1978)).

We have never addressed whether substantial compliance will satisfy art. 38.22, § 2(b). And we need not address the issue today. The final paragraph on the instant statement is not an express waiver of the rights reflected on the form and the language does not convey the knowing, intelligent waiver required by the statute. Further, the final paragraph does not address each of the rights required to be waived under art. 38.22, § 2(b). The instant written statement is clearly more than “technical non-compliance with the statute.”

The plain language of art. 38.22, § 2(b), as drafted by the Legislature, requires that, before a written statement of an accused may be admissible, the statement itself, on its face, must show the defendant received the statutory warnings set out in art. 38.22, § 2(a) and, that he knowingly, intelligently, and voluntarily waived those rights. Tex. Code Crim.Proc.Ann. art. 38.22, § 2(b). This is a mandatory requirement enacted by our Legislature to address the defendant’s Fifth and Sixth Amendment protections recognized by the Supreme Court of the United States. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and, Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Given that there is no waiver on the face of the documents, we hold the State failed to comply with art. 38.22, § 2(b) and the trial judge erred in admitting the written statement.²

B.

Having determined the trial judge erred in admitting appellant’s written statement, we must determine whether the error was harmless. The harmless error rule, codified at Tex.R.App.P. 81(b)(2), requires reversal unless the appellate court determines “beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Id. In Harris v. State, 790 S.W.2d 568 (Tex.Cr.App.1989), we noted the appellate court should not focus on the propriety of the outcome of the trial. Instead, the appellate court should be concerned with the integrity of the process leading to the conviction and punishment. Consequently, the appellate court should consider the following six factors when conducting a harm analysis:

1. The source of the error;

2. The nature of the error;

3. Whether or to what extent it was emphasized by the State;

4. Its probable implications;

5. How much weight a juror would probably place upon the error; and,

6. Whether declaring the error harmless would encourage the State to repeat it with impunity.

Id., 790 S.W.2d at 587. We will address each factor seriatim.

The Plano Police Department and the prosecutors are clearly the sources of the error. The record demonstrates that written statement forms complying with art. 38.22, § 2(b) were available but not used. The nature of the error was to deprive appellant of the statutory rights afforded by art. 38.22, § 2(a) and to ignore the Legislative protections of art. 38.22, § 2(b) to ensure voluntary statements. Further, more than half of the State’s argument was consumed by direct references to appellant’s written statement, or details provided by the statement. Clearly, the statement was emphasized by the State.

We next consider the probable collateral implications of this error and the probable weight a juror would place upon the statement. As previously noted, the written statement established each element necessary to convict appellant of capital murder. See, Tex.Penal Code Aim. § 19.03(a)(2). The statement indicates both appellant and Vargas robbed a liquor store in Collin County; that appellant carried a sawed-off shotgun; that appellant shot the clerk; and, when the clerk ran, appellant pursued him, reloaded, and shot the clerk again. Further, the statement provided some corroboration for Flores’ testimony; testimony which was impeached and undermined on cross-examination.³ Clearly, under these circumstances, it is very probable the jury relied upon appellant’s written statement in their deliberations and verdict.

Finally, we must consider whether declaring the error harmless would encourage the State to repeat it with impunity. In our consideration of this factor, we note that the record also contains an unsigned type-written statement prepared for appellant. This statement is virtually identical to the statement signed by appellant which is the subject of this point of error. The unsigned statement contains an express waiver of the rights set forth in Tex.Code Crim.Proc.Ann. art. 88.22, § 2(a). The record does not state how the unsigned statement came to be prepared, whether appellant was given the opportunity to sign it, or why it was not signed by appellant. However, this unsigned statement was not admitted into evidence.⁴ This unsigned statement makes it clear that the Plano Police Department was aware of the requirement in art. 38.22, § 2(b) that any statement, on its face, demonstrate the “accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived” the rights set forth in art. 38.22, § 2(a). Furthermore, through appellant’s motion to suppress the signed written statement and his objections at trial, the prosecutor and the trial judge were well aware of the deficiencies present on the face of appellant’s written statement. Ignoring the deficiencies, the prosecutor offered, and the trial judge admitted, appellant’s signed written statement. Consequently, we believe declaring the error harmless would encourage the State to repeat the error with impunity.

After considering the Harris factors, we cannot determine beyond a reasonable doubt the admission of the statement made no contribution appellant’s conviction or punishment. See, Higginbotham v. State, 807 S.W.2d 732, 738 (Tex.Cr.App.1991). Point of error forty-two is sustained.

III.

SUFFICIENCY OF THE EVIDENCE AT PUNISHMENT

Because appellant may be retried for the instant offense, and the State may again seek the death penalty, we must address points of error sixty-nine and seventy wherein appellant contends the evidence is insufficient to support the jury’s affirmative answers to the statutory punishment issues. See, Wilson v. State, 863 S.W.2d 59, 67 (Tex.Cr.App.1993); Jenkins v. State, 912 S.W.2d 793 (Tex.Cr.App.1993); Felder v. State, 758 S.W.2d 760, 770 (Tex.Cr.App.1988); and, Tex.Code Crim.Proc.Ann. art. 37.071, § 2(b). Again, when reviewing the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have affirmatively answered, beyond a reasonable doubt, the statutory punishment issues. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We consider the evidence adduced at both phases of the trial because the jury may rely upon all of the evidence before it. Santana v. State, 714 S.W.2d 1, 8 (Tex.Cr.App.1986). Finally, our review will include evidence erroneously admitted, such as appellant’s written statement, so long as that evidence was before the jury at the time of their deliberation. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Cr.App.1993).

In point of error sixty-nine appellant contends the evidence is insufficient to prove his conduct in murdering the clerk was deliberate and with the reasonable expectation that death would result. Art. 37.071, § 2(b)(2). Reviewing the evidence in the light most favorable to the jury’s verdict, we find ample support for the jury’s affirmative finding. By appellant’s own admission, he and Vargas waited at the liquor store until there were no customers. Appellant carried a sawed-off shotgun and additional ammunition. This evidence indicates appellant planned and prepared to use deadly force.

After retrieving money from the cash register, appellant ordered the clerk to a back room on his knees, and appellant shot the clerk in the chest.⁵ When the clerk thereafter managed to escape, appellant reloaded his weapon, pursued the clerk, and shot him in the back of the head. Finally, appellant told Bobby Flores he killed the clerk to avoid later identification. We find that a rational juror could have affirmatively answered this statutory punishment issue. Wilson, 863 S.W.2d at 67. Point of error number sixty-nine is overruled.

In point of error seventy, appellant contends the evidence is insufficient to support the jury’s affirmative answer to the second statutory punishment issue; that there was no probability appellant would commit criminal acts of violence that would constitute a continuing threat to society. Tex.Code Crim.Proc.Ann. art. 37.071, § 2(b)(1). In Keeton v. State, 724 S.W.2d 58 (Tex.Cr.App.1987), we set forth a non-exclusive list of factors we consider when we review the sufficiency of the evidence with relation to this punishment issue:

1. the circumstances of the capital offense, including the defendant’s state of mind and whether he was working alone or with other parties;

2. the calculated nature of the defendant’s acts;

3. the forethought and deliberateness exhibited by the crime’s execution;

4. the existence of a prior criminal record, and the severity of the prior crimes;

5. the defendant’s age and personal circumstances at the time of the offense;

6. whether the defendant was acting under duress or the domination of another at the time of the commission of the offense;

7. psychiatric evidence; and,

8. character evidence.

Id., 724 S.W.2d at 61. The circumstances of the offense and the use of a sawed-off shot gun demonstrate appellant’s propensity toward violence. While appellant did not act alone, the evidence does not support a determination that he was under the domination of his co-defendant. If anything, the evidence indicates just the opposite. We find appellant’s actions to be deliberate and calculated.

Appellant was eighteen years of age at the time of the instant offense. The State presented evidence that appellant committed several burglaries as a juvenile and was a disciplinary problem in school. Evidence was also presented that appellant created problems in jail while awaiting trial. Although the evidence conflicted as to whether or not appellant was intoxicated at the time of the instant offense, appellant had a history of alcohol abuse. Both sides presented psychiatric evidence regarding the probability that appellant would commit criminal acts of violence in the future. As expected, this evidence is conflicting.⁶ Finally, and perhaps most importantly, appellant committed another capital murder within a month of his commission of the instant offense.

When we consider this evidence with relation to the Keeton factors, we find the jury’s affirmative answer to the second punishment issue is supported by: the circumstances of the offense; the calculated and deliberate nature in which appellant acted; psychiatric evidence presented by the State; appellant’s prior criminal record; his commission of capital murder subsequent to the instant offense; and, the lack of evidence that appellant was under duress or domination of another. We find the following Keeton factors militate against an affirmative answer to the second punishment issue: appellant’s age; his co-defendant’s participation in the instant offense; and, appellant’s history of alcohol abuse. Considering all the evidence, we conclude a reasonable juror could have found a probability that appellant would commit criminal acts of violence that would constitute a continuing threat to society. Point of error number seventy is overruled.

IV.

Because Tex.Code Crim.Proc.Ann. art. 38.22, § 2(b) requires that no written statement made by the defendant be admitted into evidence unless, on its face, the statement contains a knowing, intelligent, and voluntary waiver of the rights set forth in art. 38.22, § 2(a), we sustain appellant’s point of error forty-two. Unable to determine beyond a reasonable doubt that this error made no contribution to appellant’s conviction or punishment, Tex.R.App.P. 81(b)(2), we are constrained to reverse this judgment and remand this case to the trial court.

CLINTON, J., concurs in the result. McCORMICK, P.J., and CAMPBELL, WHITE and MEYERS, JJ., dissent.

1 . The only exception to this rule occurs when the plain language of the statute will lead to an absurd result. Boykin, 818 S.W.2d at 785.

2 . The State espouses two other arguments for the allowance of the confessions. In the first, it claims that the confessions were properly admitted under Tex.R.Crim.Evid. 1004 as evidence of a lost recording since the audio of the videotapes was questionable. However, this rule pertains to lost recordings, not those that are simply badly made. Further, upon reviewing the videotapes (which were not introduced at trial) we noted them to be reasonably audible.

The State’s second argument is that the confessions should have been allowed under Tex.Code Crim.Proc.Ann. art. 38.22, § 3(c). However, the State’s argument is without merit because the State sought to admit the instant statement as a written statement under art. 38.22(2)(b). Art. 38.22 § 3(c) addresses only the admissibility of an oral or sign language statement.

3 . Flores’ testimony was similar to appellant’s statement. However, Flores did not testify until after appellant’s written statement was before the jury. Indeed, three police officers and one jailer testified between the admission of appellant’s statement and Flores.

Flores’ testimony .indicated he was at Vargas’ house the evening of December 9, 1990. He stated he drank at least two beers before appellant and Vargas left “to go sell ... something” to buy more beer. Upon their return, they were in possession of beer and a lot of money. When Flores asked where the beer and money came from, appellant stated he went into a store, while Vargas waited in the car, asked the clerk for the money, took the beer, shot the clerk and left.

On cross-examination, Flores admitted he did not remember the exact words appellant or Vargas used. Flores could not identify which liquor store appellant robbed and did not state whether the liquor store was in Collin County. Flores admitted he was twice convicted of burglary, in September 1989 and January 1990. Further, Flores admitted the State initially sought to revoke his probation because he had committed additional crimes, but later agreed to extend his probationary period. There were several additional criminal charges pending against Flores at the time of the instant trial, some filed the week he testified.

4 . We pause to note that such an unsigned statement does not comply with Tex.Code Crim.Proc. Ann. art. 38.22, § 1.

5 . While appellant claims that he shot in a panic after a woman walked into the store and witnessed what was happening, his subsequent actions belie this statement.

6 . The jury was free to accept or reject any or all of the evidence because the credibility of that evidence was solely within their domain. Havard v. State, 800 S.W.2d 195, 216 (Tex.Cr.App.1989).