Gonzalez, Luis v. State

Opinion

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LUIS GONZALEZ,                                               )

                                                                              )               No.  08-01-00451-CR

Appellant,                          )

                                                                              )                    Appeal from the

v.                                                                           )

                                                                              )                 34th District Court

THE STATE OF TEXAS,                                     )

                                                                              )            of El Paso County, Texas

Appellee.                           )

                                                                              )               (TC# 20010D02529)

                                                                              )

O P I N I O N

Appellant Luis Gonzalez was indicted and tried for the murder of Lorenza Orozco.  The jury found Appellant guilty of the lesser-included offense of manslaughter and assessed punishment of 18 years= imprisonment and a fine of $10,000.  On appeal, Appellant raises eight issues, in which he challenges the legal and factually sufficiency of the evidence to sustain his conviction and argues that the trial court erred in admitting evidence seized from his home without his effective consent and erred in admitting into evidence his purported statement which was not voluntarily given.  We affirm.

On the evening of October 6, 2000, Appellant shot his wife Lorenza Orozco with a

12-gauge shotgun during an argument in their home.  Ms. Orozco died as a result of the injuries she sustained.  Appellant and the victim had been together for over three years and had a

two-year-old son.  They had a lot of problems in their relationship and financial disagreements.  That evening, Appellant got out of work around 8:30 p.m. and went to the Lamplighter Bar, a strip club, and drank a couple of beers.  About half an hour later, Ms. Orozco entered the club, went to Appellant=s table, and started yelling at Appellant.  The club=s bouncer threw the couple out.  Appellant arrived home first and as he got out of his vehicle, Ms. Orozco pulled up and almost ran him over.  Appellant went to her vehicle, picked up their son from the back seat, and went into the house.  Appellant recalled that while he was closing the door, Ms. Orozco hit him in the mouth.  Appellant put his sleeping son on the sofa and he and Ms. Orozco continued arguing.

In his statement to police, Appellant stated that during the argument he grabbed Ms. Orozco and shook her from the arms and stated that she was getting out of hand.  He then called her mother and told her what was happening and that he could not stand Ms. Orozco and did not want her there anymore.  Ms. Orozco grabbed a lamp and Appellant hung up the phone and went upstairs.  Appellant then went into his room, grabbed a shotgun that he kept loaded in his closet and went back downstairs.  Appellant told Ms. Orozco to shut up and leave, but she kept going on and calling him names.  Appellant pulled on the trigger and the shotgun went off.  Ms. Orozco fell to the floor and he walked upstairs and put the shotgun away.  Appellant returned and picked up his son who was crying.  He then called 911 and told them to come quickly because he had shot his wife accidentally.  Appellant stated that he did not want to shoot her, he just wanted to scare her.

At trial, Appellant offered contrary testimony concerning the immediate events leading up to the shooting.  Appellant testified that after they returned home and during their argument, his brother-in-law called on the phone.  Appellant gave the phone to Ms. Orozco and while she was on the phone, he went upstairs to take a shower.  Ms. Orozco followed Appellant upstairs and came towards him, threw something at him, and started yelling at him and hitting him.  Appellant then picked up the 12-gauge shotgun, which was behind the 9-millimeter gun, on the top shelf in the closet.  Appellant stated that he wanted to scare her and calm her down.  Appellant testified that he did not grab the 9-millimeter because he knew it was loaded, but knew the shotgun was not loaded.  Appellant went downstairs, carrying the shotgun, and Ms. Orozco followed behind him.  She kept on hitting him, so he called his mother-in-law.  After he hung up the phone, Ms. Orozco swung at him and threw something at him.  Appellant picked up the shotgun, which was on top of the counter and put it by his side.  Appellant pointed the shotgun at Ms. Orozco.  Ms. Orozco had something in her hand and swung at him and Appellant told her to stop.  When she did it again, Appellant flinched and the gun went off.  Ms. Orozco grabbed her arm and asked Appellant to call 911.  At first, Appellant could not react and did not respond to her.  Appellant testified that he was in shock because the gun should have never been loaded.  Ms. Orozco then yelled at him to call 911 and he did.

After calling 911 and speaking with the operator, Appellant picked up his son, heard the ambulance, and ran outside.  His neighbor, Anthony Martinez had just returned home when he saw Appellant=s door open.  Mr. Martinez was walking up to the door when Appellant walked out.  Appellant told Mr. Martinez that he had shot his wife and walked past Mr. Martinez.   Appellant appeared very sad and quiet.  Appellant went into the street, waved to the ambulance, and then walked back in the house.

El Paso Police Officers Adrian Estrada and Joe Lopez were the first officers to arrive at the scene.  When they entered the kitchen, they observed Appellant on the phone and holding a small child.  Officer Lopez ordered Appellant to hang up the phone, put down the child, and put his hands up.  Officer Estrada recalled that Appellant was quiet, but kind of shocked, and complied with all the orders.  Officer Estrada placed Appellant in handcuffs and escorted him out to the patrol unit.  Then Officer Estrada sat Appellant down in the back of the unit and watched him.

Officer Erik Messer and his partner Steven Lopez entered the residence directly behind Officers Estrada and Joe Lopez.  Officer Messer observed the officers placing Appellant in handcuffs and made his way to the victim.  She was lying on the floor in the den, suffering from an obvious gunshot wound.  Officer Messer saw she had a large gaping hole in her upper right torso and the elbow area of her arm was severely torn up.  Ms. Orozco had a very faint pulse and was not talking or responding.  He and another officer were about to do CPR when EMS arrived and took over the victim.

Officer Messer then assisted other officers in clearing the house to look for possible victims, suspects, or weapons, as a safety concern.  Officer Messer went upstairs to the bedroom area and observed two weapons, a shotgun and a handgun, in an open closet on the shelf.  The officer noticed that the shotgun still had the spent round in the chamber or the port ejection.  After the officer located the weapons, he advised the sergeant on the scene.  By then, they had learned that there were no outstanding suspects or victims and Officer Messer was asked to go outside and secure the perimeter.  Officer Messer testified that he did not tag the shotgun as evidence nor was he told by anyone where the gun was located.

Officer Estrada testified that he did not say anything to Appellant when he put him in the back of the patrol unit.  At that time, his partner Joe Lopez was inside the residence, trying to find weapons and was trying to get a hold of Officer Estrada on his radio.  Officer Lopez came out of the residence and told Officer Estrada to read Appellant his rights.  Officer Lopez then asked Appellant Awhere are the guns@ and Appellant replied, Aupstairs.@  Officer Estrada recalled that Appellant began yelling out for his son and wife and that it seemed like he was going into a little bit of shock, either rocking back and forth or side to side.^[1]  Since Appellant appeared to be  going into a seizure, Officer Estrada called out for help, pulled Appellant out of the unit, and an ambulance showed up to transport Appellant to Del Sol Medical Center.  Officer George Spencer, who had been canvassing the area for witnesses, was called over to the patrol car and told to ride in the ambulance.  Officer Spencer observed Appellant sitting on the curb and gasping for air.  Officers Estrada and Spencer rode in the ambulance with Appellant to the hospital.  Officer Estrada recalled that during the ambulance ride, Appellant said, AI can=t breathe.@  Appellant had on an oxygen mask for about half the trip, and eventually passed out.  Officer Spencer recalled that Appellant=s eyes were closed and he was kind of shaking around as if having some sort of seizure or something.  The EMTs were tapping his eyes and saying his name.  Appellant=s eyes were flinching, but he made no verbal response.

When they arrived at the hospital, Appellant was taken to an examining room.  Officer Spencer recalled that Appellant was handcuffed behind his back and at the time, his hands were wrapped in paper to protect evidence of gunpowder residue.  Appellant was complaining that his hands were numb, so Officer Spencer handcuffed Appellant to the bed rail.  Officer Spencer recalled that Appellant was asking about his wife=s condition.

Crime Scene Officer Mark Fernandez was dispatched to Del Sol hospital at 11:45 p.m. to obtain photographs and evidence.  Officer Fernandez took photographs of Appellant and noted that he was handcuffed to the rails, had blood on his clothing, and his hands were bagged and taped.  Officer Fernandez unbagged Appellant=s hands and tested for gunpowder traces with a collection kit.  The officer also took Appellant=s clothes and shoes, and later turned these items and the collection swabs over to Officer Tom Garcia.  Officer Fernandez recalled that Detective Chavarria was not initially at the hospital when he arrived, but showed up while he was there.  Officer Fernandez was advised by Sergeant Valenzuela to go to the crime scene to map the wall of blood splatter.  Officer Fernandez left Del Sol at 1:07 a.m.  When he arrived at the residence, officers were still standing by waiting for the videotaping and photographing of the scene.

Wanda Guerrero Sanchez, a registered nurse at Del Sol Medical Center, was the emergency room triage nurse on duty when Appellant was brought into the hospital by the police.  Ms. Sanchez testified that at that time, Appellant was not voicing complaints because he would not talk with medical staff.  They took Appellant=s vital signs and Ms. Sanchez did an assessment on him.  While Ms. Sanchez was in the hallway, Jose Rodriguez, the physician=s assistant on duty that night, entered Appellant=s room and dropped a metal overbed tray on the floor.  Appellant immediately responded and jumped, fully awake.  Appellant did not seem to be in a state of shock because he snapped out of his unresponsiveness so readily with a loud noise.  Appellant did not exhibit any symptoms consistent with a postictal state following a seizure.  Ms. Sanchez recalled from her nursing notes that Appellant came into the hospital at 11:45 p.m. and was released by the physician into police custody at 1:05 a.m.  Ms. Sanchez recalled giving Appellant two hospital gowns, covering his front and back, because the police had taken Appellant=s clothes.  When he was leaving, Ms. Sanchez got shoe covers for his feet and wrapped him in a warm blanket.

Detective Gonzalo Chavarria, of the Crimes Against Persons (ACAP@) Division in the El Paso Police Department, arrived at the scene of the shooting at approximately midnight and was advised to go to Del Sol Hospital to start his investigation.  Detective Chavarria arrived at the hospital at approximately 12:45 a.m.  While there, Detective Chavarria was advised by his supervisors to obtain Appellant=s consent to enter his home for investigative purposes.  Detective Chavarria read Appellant his rights and read the consent to search form, which states that he can refuse to consent to the search.  Detective Chavarria testified that Appellant read the form, understood it, and signed it.  After obtaining the consent form, Detective Chavarria met with the medical staff attending to Appellant.  Appellant was cleared by medical staff for release and transported to police headquarters.

Upon arriving at police headquarters, Appellant was turned over to Detective Chavarria=s custody in the CAP office.  They went into an interview room and Detective Chavarria read Appellant his Miranda rights, and Appellant signed and initialed each paragraph of the Miranda warning card.  Appellant agreed to waive his rights and give a statement.  Detective Chavarria testified that during the time he took the statement, Appellant did not tell him he wanted to cease the interview and he was not coerced or threatened in any way to give a statement.  Detective Chavarria also testified that he did not directly or indirectly promise Appellant anything in return for his statement and stated that he was not denied any basic necessities like food or going to the restroom.  Appellant read the statement on the computer monitor as Detective Chavarria typed and after it was finished, the detective gave Appellant a printed copy, which Appellant read aloud.  Appellant initialed every paragraph and wanted no additions, deletions, or alterations to the statement.  Appellant signed the document in the detective=s presence, which was witnessed by Officer Spencer and Officer Gabriel Espalin.

Crime Technician Officer Thomas Garcia arrived at Appellant=s residence at approximately midnight.  When Sergeant Valenzuela arrived about an hour later, Officer Garcia was assigned the duty of collecting evidence at the crime scene.  Officer Garcia collected several items of evidence, including assorted ammunition from the kitchen pantry, a box of .38 caliber ammunition, a box of 9-millimeter ammunition found inside the kitchen cabinet, and an empty box of Federal brand shotgun ammunition found in the upstairs bedroom closet.  In the upstairs bedroom closet, Officer Garcia also recovered a loaded 9-millimeter pistol, a loaded Mossberg 12-gauge shotgun, one spent shotgun shell taken from the receiver of the ejection port of the shotgun, and after unloading the shotgun, four live shotgun rounds inside the recoil tube.

Joseph Correa, a firearms examiner for Texas DPS at the El Paso Crime Lab, conducted various tests on the 12-gauge shotgun in evidence and testified as a firearms expert for the State.   Mr. Correa determined that the shotgun was functioning properly and had two safety locks, a sear that keeps the firing pin back and another on top of the receiver that was a trigger lock.  Though he had heard of a shotgun firing when dropped, he saw no reason why this shotgun should fire if dropped.  According to Mr. Correa, the shotgun in evidence was a slide-action or pump shotgun.  In closed position, one inserts the shotshells into the tube of the magazine in the body.  To load it, one would pull it forward and backwards, causing the lift to come down with the first stop opening to allow the shell to pop onto the lift and the second stop keeping the rest of the shells from coming down and jamming the firearm.  Then one would rack it forward again, causing the lift to rise, the bolt to move forward, and the chambering of the round.  In order to fire the weapon, it would have had to have already been racked.  Mr. Correa also testified that the shotgun held a capacity of five three-inch shotshells, four in the magazine and one in the chamber.  According to Mr. Correa, the five bullets recovered from the shotgun were three-inch shotshells.

The jury found Appellant guilty of the lesser-included offense of manslaughter and assessed punishment at eighteen years= imprisonment and a $10,000 fine.  Appellant=s motion for new trial was overruled by operation of law.  Appellant now brings this appeal.

In four related issues, Appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction for manslaughter.

Standards of Review

In reviewing the legal sufficiency of the evidence, we must view 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 crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, 573 (1979); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000).  We must evaluate all of the evidence in the record, whether it was admissible or inadmissible.  Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).  Instead, our duty is to determine whether if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict.  See Adelman, 828 S.W.2d at 421-22.  In so doing, any inconsistencies in the evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.

In reviewing a factual sufficiency challenge, we view all of the evidence in a neutral light, both for and against the verdict, to determine whether it demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury=s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.  Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996).  We review the evidence supporting a disputed fact and compare it to evidence tending to disprove that fact.  Johnson, 23 S.W.3d at 6-7; Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997).  Although we are authorized to disagree with the jury=s determination, we must give due deference to the jury=s assessment of the weight and credibility of the evidence to avoid substituting our judgment for that of the fact finder.  Johnson, 23 S.W.3d at 7; Jones, 944 S.W.2d at 648.  We will set aside a verdict only where the evidence supporting guilt is so obviously weak or the contrary evidence so overwhelmingly outweighs the supporting evidence as to render the conviction clearly wrong and manifestly unjust.  Ortiz v. State, 93 S.W.3d 79, 87 (Tex.Crim.App. 2002), cert. denied, 123 S.Ct. 1901, 155 L.Ed.2d 824 (2003).

Manslaughter

In this case, Appellant was charged with murder, but at trial, the jury was also instructed on the lesser-included offenses of reckless manslaughter and criminally negligent homicide.^[2]  The jury found Appellant guilty of manslaughter.  A person commits manslaughter if he recklessly causes the death of an individual.  See Tex.Pen.Code Ann. ' 19.04(a)(Vernon 2003).  Section 6.03(c) of The Texas Penal Code provides: 

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.

Tex.Pen.Code Ann. ' 6.03(c)(Vernon 2003).

To obtain a conviction for manslaughter, the State must prove that:  (1) the risk that the defendant perceived was both substantial and unjustifiable; and (2) the defendant=s disregard of the risk constituted a gross deviation from the ordinary standard of care.  See Tex.Pen.Code Ann. ' 6.03(c).  Under the Texas Penal Code, a person commits criminally negligent homicide by causing the death of an individual by criminal negligence.  See Tex.Pen.Code Ann. ' 19.05(a).  In defining criminal negligence, Section 6.03(d) of the Penal Code provides:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor=s standpoint.

Tex.Pen.Code Ann. ' 6.03(d).

On appeal, Appellant argues that if he is guilty, he is guilty of the lesser-included offense of criminally negligent homicide, rather than manslaughter, because he failed to perceive the injury or death that could result from his conduct because he thought the shotgun was unloaded.  Therefore, the only disputed element on appeal is Appellant=s mental state, that is, whether he was aware of a substantial and unjustifiable risk created by his conduct and consciously disregarded it, or whether he was unaware of the risk involved or failed to perceive that risk.  See Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975)(difference between criminally negligent homicide and involuntary manslaughter, now manslaughter, is the culpable mental state required to establish each offense).  Proof of a culpable mental state often relies on circumstantial evidence, and in comparing recklessness versus criminal negligence, is a conclusion to be drawn by the trier of fact through inference from all the circumstances.  Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978).

In this case, according to his statement, Appellant and Ms. Orozco were in the middle of an argument when he went upstairs to his room and grabbed a shotgun that he kept loaded in the closet.  Appellant then returned downstairs, continued arguing with Ms. Orozco, and then pulled on the trigger and the shotgun went off.  Appellant stated that he did not want to shoot her, but only intended to Ascare her.@  At trial, Appellant testified that he grabbed the shotgun because he knew is was not loaded, had never loaded the shotgun, did not know how the safety worked, and had never test fired the shotgun, which he had purchased used in December 1999.  Appellant denied that he racked the shotgun and did not know who had racked it.  Officer Garcia recovered assorted ammunition and other evidence at Appellant=s residence, including a box of .38 caliber ammunition, a box of 9-millimeter ammunition, and an empty box of Federal brand shotgun ammunition from the upstairs bedroom closet.  In addition to the loaded shotgun, Officer Garcia recovered a loaded 9-millimeter pistol.  Firearms expert Joseph Correa testified that Appellant=s shotgun was functioning properly, and in order to fire this type of shotgun, it would have had to have already been racked.  Though Appellant testified that he had never taken a firearms safety course, he admitted that he had owned other guns before.

Based on the evidence viewed in a light most favorable to the verdict, the jury could reasonably infer that Appellant knew the shotgun was loaded when he pointed it at Ms. Orozco and knew the risk of potential injury created by his conduct given his familiarity with guns and his intention of scaring the victim.  See Thomas v. State, 699 S.W.2d 845, 850 (Tex.Crim.App. 1985)(AEvidence that a defendant knows a gun is loaded, that he is familiar with guns and their potential for injury, and that he points a gun at another, indicates a person who is aware of a risk created by that conduct and disregards the risk,@ not entitling a defendant to an instruction on criminally negligent homicide).  The evidence also supports the inference that Appellant consciously disregarded the risk created by his conduct by pulling on the trigger while the gun was pointed at Ms. Orozco.  We conclude that the evidence was legally sufficient to sustain Appellant=s conviction for manslaughter.  Further, we conclude the evidence is also factually sufficient because the proof of guilt was not so obviously weak nor was the contrary evidence so overwhelmingly outweighed by the supporting evidence as to render the conviction clearly wrong and manifestly unjust.  Although at trial, Appellant denied knowing that the shotgun was loaded and testified that he did not know how the gun operated or how the safety worked, the jury was free to believe all, some, or none of Appellant=s testimony.  See Johnson, 23 S.W.3d at 9 (The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony.).  A decision is not manifestly unjust merely because the fact finder resolved conflicting evidence in favor of the State.  Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997).  Finding the evidence both legally and factually sufficient to sustain Appellant=s conviction, we overrule Issues One through Four.

Suppression of Evidence

In Issues Five and Six, Appellant contends the trial court erred in admitting evidence seized at his home without his effective consent to the search.  In Issues Seven and Eight, Appellant argues the trial court erred in admitting his statement to the police because it was not voluntarily given.  The trial court held a pretrial hearing on Appellant=s motion to suppress his written statement.  At the conclusion of the hearing, the trial court denied the motion.  Appellant later filed a motion to suppress all physical evidence obtained from Appellant=s arrest and search and seizure of his property without valid consent.  Prior to voir dire, Appellant argued his motion to suppress the physical evidence to the trial court.  The trial court reserved its ruling at that time and later denied this motion prior to opening statements without stating the basis for its ruling.  During the State=s case-in-chief, Appellant repeatedly re-urged his motions to suppress evidence with respect to Appellant=s consent to the search of his residence and his written statement to police.  The trial court overruled his objections and admitted physical evidence obtained from the consent search and Appellant=s written statement.  During the defense=s case-in-chief, Appellant testified regarding the suppression issues and the State cross-examined Appellant on the same.

Standard of Review

A trial court has broad discretion in determining the admissibility of the evidence and we will not set aside the trial court=s ruling absent a clear abuse of discretion.  Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App. 1991).  When reviewing a trial court=s ruling on a motion to suppress evidence, we apply a bifurcated standard of review, in which we give almost total deference to the trial court=s determination of historical facts that turn on an evaluation of credibility and demeanor and review de novo its application of the law to those facts.  Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997).  When the trial court does not make explicit findings of historical fact, we review the evidence in the light most favorable to the trial court=s ruling.  Walter v. State, 28 S.W.3d 538, 540 (Tex.Crim.App. 2000).  In determining whether a trial court=s ruling on a motion to suppress is supported by the record, an appellant court generally considers only the evidence adduced at the suppression hearing unless the suppression issues have been consensually re-litigated by the parties during the trial on the merits.  See Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App. 1996), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136 L.Ed.2d 539 (1996).  When the issue is consensually re-litigated by the parties at trial, as in this case, we consider the evidence presented at the hearing as well as the evidence presented at trial.  Rachal, 917 S.W.2d at 809.  The trial court=s ruling should be upheld if it is correct on any theory of law applicable to the case.  State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

Emergency Doctrine

On a motion to suppress evidence, the accused bears the initial burden of rebutting the presumption that police conduct was proper.  Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App. 1986).  The accused rebuts this presumption by showing that the search or seizure occurred without a warrant.  Id.  If the State conducted a search without a warrant, the burden shifts to the State to prove that the warrantless search or seizure was reasonable.  See id. at 9-10. 

Within Issues Five and Six, Appellant first contends that physical evidence, specifically the shotgun and handgun, was illegally seized when police officers entered his residence at a time prior to obtaining Appellant=s alleged written consent to search.  We will address Appellant=s argument concerning the initial search of his residence upon his arrest before considering the voluntariness of his written consent, which was obtained while Appellant was in custody at the hospital.

The Fourth Amendment to the United States Constitution as well as Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures.  See U.S. Const. Amend. IV; Tex.Const. art. I, ' 9.  To justify a warrantless search of a residence under the emergency doctrine exception, the State must show that:  (1) the officer had probable cause to at the time the search was made; and (2) the officer had an immediate reasonable belief that he or she must act to Aprotect or preserve life or avoid serious injury.@^[3]  See Mincey v. Arizona, 437 U.S. 385, 392-93, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978); Brimage v. State, 918 S.W.2d 466, 500-02 (Tex.Crim.App. 1996)(plurality op. on reh=g), cert. denied, 519 U.S. 838, 117 S.Ct. 115, 136 L.Ed.2d 66 (1996); McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App. 1991).  We apply an objective standard of reasonableness in determining whether a warrantless search is justified under the emergency doctrine.  Brimage, 918 S.W.2d at 501; Gipson v. State, 82 S.W.3d 715, 720 (Tex.App.--Waco 2002, no pet.).  Using this objective standard we evaluate police conduct, taking into account the facts and circumstances known to the police at the time of the search.  See Colburn v. State, 966 S.W.2d 511, 519 (Tex.Crim.App. 1998); Brimage, 918 S.W.2d at 501.  The police may seize any evidence that is in plain view during the course of their legitimate emergency activities.  Mincey v. Arizona, 437 U.S. at 393, 98 S.Ct. at 2413; Brimage, 918 S.W.2d at 501.

In this case, Appellant called 911 and requested emergency assistance because he had shot his wife accidentally.  Officer Estrada testified that he and his partner Joe Lopez were dispatched to a Code III shooting, family violence, at 8308 Mettler Drive.  The officers passed a staging area where the fire truck and ambulance were waiting because there was a weapon involved.  Officers Estrada and Lopez entered the residence and observed Appellant standing in the kitchen with a small child.  Appellant was immediately arrested.

Officer Erik Messer testified that he was also dispatched on a shooting call at the same location.  Officer Messer and his partner entered the residence directly behind Officers Estrada and Lopez.  Officer Messer observed that Ms. Orozco was lying on the floor with an obvious gunshot wound.  When emergency personnel arrived, Officer Messer left the victim and assisted other officers in searching for possible victims, suspects, and weapons.  During this search, Officer Messer observed the shotgun and handgun on a shelf in an open closet in the upstairs bedroom.  Officer Messer advised the sergeant, but by then, officers had determined that there were no other suspects or victims and Officer Messer was ordered outside to secure the perimeter of the premises.  Officer Messer testified that he did not tag the shotgun as evidence nor was he told by anyone where this evidence was located.

Based on the facts and circumstances known to the police at the time of their initial search, they could have reasonably believed that they had to enter and search Appellant=s residence in order to protect or preserve life or avoid serious injury.  At the time of the search, officers knew that a shooting had occurred at a family residence and no weapon was immediately found near the suspect or the victim.  Officers knew that there was at least one child in the residence, but could have reasonably believed that other family members had been injured or that other suspects involved in the shooting were in the house.  Under these circumstances, the emergency doctrine applied and therefore, the officers= warrantless entry and search of Appellant=s residence was justified.  The trial court did not abuse its discretion in admitting physical evidence seen, but not seized during the officer=s initial search of the residence.

Consent to Search

We next consider whether Appellant=s written consent to search was freely and voluntarily given.  Consent to search is an well-established exception to the constitutional requirements of both a warrant and probable cause.  See U.S. Const. Amend. IV; Tex.Const. art. I, ' 9; Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); State v. Ibarra, 953 S.W.2d 242, 243 (Tex.Crim.App. 1997).  If the State obtains voluntary consent to a warrantless search neither the United States nor the Texas Constitutions are violated.  Brimage, 918 S.W.2d at 480.  The State must establish by clear and convincing evidence that an accused gave consent positively and unequivocally and there must not be duress or coercion, actual or implied.^[4]  Ibarra, 953 S.W.2d at 245; Paulus v. State, 633 S.W.2d 827, 850 (Tex.Crim.App. 1981); Chavarria v. State, 876 S.W.2d 388, 392 (Tex.App.--El Paso 1994, no pet.).  Consent must be voluntary and neither physically nor psychologically coerced.  Juarez v. State, 758 S.W.2d 772, 775 (Tex.Crim.App. 1988), overruled on other grounds by, Boyle v. State, 820 S.W.2d 122, 132 n.10 (Tex.Crim.App. 1989), cert. denied, 503 U.S. 921, 112 S.Ct. 1297, 117 L.Ed.2d 520 (1992); Meeks v. State, 692 S.W.2d 504, 509 (Tex.Crim.App. 1985).  The voluntariness of a consent to search is a question of fact to be determined from the totality of the circumstances.  Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996); Juarez, 758 S.W.2d at 775.  Appellant was under arrest or in custody at the time he gave his consent to search.  However, the fact that a person is under arrest does not inherently render his consent to search involuntary.  Juarez, 758 S.W.2d at 775; Chavarria, 876 S.W.2d at 392.  Rather, it is merely one of the circumstances to be considered.  Williams v. State, 937 S.W.2d 23, 28-9 (Tex.App.--Houston [1st Dist.] 1996, pet. ref=d, untimely filed).

Appellant contends that the description of him at the scene, at the hospital, and his medical conditions at and near the time of the purported consent all indicate that it was not voluntarily given or understandingly made.  At trial, Officer Estrada testified that while Appellant was sitting in the patrol unit at the scene, Appellant seemed to go into a seizure, rocking back and forth or side to side.  Appellant was then transported to the hospital.  During the ambulance ride, Appellant complained of having trouble breathing and was administered oxygen, but eventually passed out.  According to Nurse Wanda Guerrero Sanchez, Appellant arrived at the hospital at 11:45 p.m.  Initially, Appellant was not voicing complaints because he would not talk to medical staff.  An attending physician=s assistant dropped a metal tray on the floor in Appellant=s room, causing Appellant to jump and act fully awake.  According to Ms. Sanchez, Appellant did not seem to be in a state of shock and did not exhibit any symptoms consistent with a postictal state following a seizure.  At 11:45 p.m., Officer Mark Fernandez was dispatched to the hospital to obtain evidence and to take photographs.  Once Officer Fernandez met Appellant, he took photographs to document his condition.  A photograph introduced into evidence shows Appellant laying on a hospital bed with one leg extended and the other bent at the knee and resting on the bed.  The photograph indicates that Appellant was conscious at the time.  Officer Fernandez collected Appellant=s clothing, which contained suspected traces of blood.  The officer recalled that Appellant=s demeanor at that time was just sort of calm and that nothing stood out.

Detective Chavarria arrived at the hospital at approximately 12:45 a.m.  Upon arriving, Detective Chavarria introduced himself to Appellant and asked him how he was doing.  Detective Chavarria read Appellant his Miranda rights and read the consent to search form to Appellant, which notified Appellant of his right to refuse consent to the search.  The express language of the consent form states AThis written permission is being given by me to the above named persons voluntarily and without threats or promises of any kind.@  According to Detective Chavarria, Appellant read the form, understood it, and signed it.  Appellant did not indicate to Detective Chavarria in any way that he could not sign the form.  Appellant was cleared by medical staff and the attending physician released Appellant into police custody at 1:05 a.m.

After reviewing the totality of the circumstances, we find there is no evidence to indicate Appellant=s consent was obtained by duress or coercion, actual or implied.  Rather, the trial court could reasonably conclude that there was clear and convincing evidence that Appellant voluntarily consented to the search.  Finding no abuse of discretion, we conclude the trial court did not err in refusing to suppress evidence seized from Appellant=s home based on Appellant=s consent to search.  We overrule Issues Five and Six.

Voluntary Statement

In Issues Seven and Eight, Appellant contends the trial court erred in admitting Appellant=s purported statement to police because it was not voluntarily given.  In his brief, Appellant argues that the circumstances surrounding his confession render it involuntary, specifically evidence that:  (1) he had suffered a post traumatic shock to the extent and degree that he lost consciousness; (2) had previously invoked his right to remain silent and had refused to answer questions; (3) had been drinking alcohol; (4) was stripped of his clothes; (5) had not had adequate sleep or food; and (6) had been anxious to complete the statement because the detective told him he would have to complete the statement before the detective could check on his wife=s status.

A statement is involuntary if the record reflects Aofficial, 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.@  Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995).  The voluntariness of a confession is determined by considering the totality of the circumstances under which the statement was obtained.  Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997); Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).  The ultimate question in determining voluntariness of the statement is whether the defendant=s will was overborne.  See Creager, 952 S.W.2d at 856, citing, Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App. 1985).

A defendant=s mental condition alone is not determinative of the voluntariness of the confession, but is only one factor to be considered.  See Penry, 903 S.W.2d at 744.  The question becomes one of whether the accused=s mental impairment is so great that it rendered him incapable of understanding the meaning and effect of his statement.  See Casias v. State, 452 S.W.2d 483, 488 (Tex.Crim.App. 1970); Reed v. State, 59 S.W.3d 278, 281-82 (Tex.App.--Fort Worth 2001, pet. ref=d).  Emotional confusion brought about by the stress of the situation is relevant to the voluntariness determination, but is only one of the circumstances that must be considered.  Ballestro v. State, 640 S.W.2d 423, 426 (Tex.App.--San Antonio 1982, no pet.); see also Gonzales v. State, 807 S.W.2d 830, 833 (Tex.App.--Houston [1st Dist.] 1991, pet. ref=d) (Mere emotionalism or confusion alone does not render a confession inadmissible.). 

At the suppression hearing, Officer Estrada testified that after Appellant was taken into custody, he escorted Appellant to the patrol unit.  Officer Estrada read Appellant his Miranda rights prior to his partner asking Appellant where the weapons were in the house.  Officer Estrada recalled that at the time, Appellant seemed calm, but a little out of it, almost in shock.  Appellant affirmatively replied that he understood his rights.  Officer Estrada had no further discussions with Appellant.  Appellant, however, became more hysterical, yelling out for his son and wife.  Officer Estrada observed Appellant=s eyes begin to roll back, and he started rocking back and forth.  Officers pulled Appellant out of the patrol unit and called EMS.  Appellant had calmed down, but was still breathing rapidly and taking shallow breaths.  While transporting Appellant to the hospital, Appellant was given oxygen, but eventually passed out.  Officer George Spencer also testified at the hearing and recalled that when they first arrived at the hospital, Appellant=s eyes were open and he was not saying anything.

Nurse Wanda Guerrero Sanchez testified at the hearing and stated that in the medical paperwork she had noted that the patient, Appellant, was refusing to answer questions when the technician initially saw him at 11:45 p.m., and again at 11:50 p.m. when she was in the room.  At that point, the physician=s assistant on duty walked into the room, talked to Appellant, but Appellant was not answering him.  The assistant then purposely dropped a metal tray out of Appellant=s line of vision, causing a loud noise.  Appellant immediately started answering and asking questions and responding to medical staff.  Appellant was seen by the attending physician at 12:15 a.m.  Ms. Sanchez recalled that a forensic officer came around 12:30 a.m. and tested Appellant=s hands and collected his clothes.  When Ms. Sanchez drew Appellant=s blood for lab work at 12:45 a.m., Appellant was cooperating and talking to her.  Appellant admitted to her that he had drunk four beers, but his blood alcohol test results indicated he was about half under the legally drunk limit.  In Ms. Sanchez=s opinion, Appellant did not appear to be in a post-seizure like state.  In her nursing notes, Ms. Sanchez noted that at 12:55 a.m., Appellant=s eyes were open, he was verbally responsive, oriented, conversing, his motor responses were normal, and his pupil size was three and reactive.  The attending physician later cleared Appellant for release.  Appellant left the hospital wearing two hospital nightgown robes, shoe covers, and a blanket.  Officers Estrada and Spencer escorted Appellant to the Crimes Against Persons office at the police station and had no discussions with Appellant.

At the suppression hearing, Detective Chavarria testified that he arrived at the hospital at approximately 12:30 a.m. and located Appellant in the emergency room in police custody.  Appellant was being attended to by a nurse and had one arm handcuffed to the bed railing.  When the nurse left, Detective Chavarria approached Appellant, introduced himself, and asked Appellant how he was doing, to which Appellant replied, Afine.@  The detective then asked Appellant for his consent to search his residence and reviewed the consent form with Appellant.  Appellant then signed the form.  When Appellant arrived at the CAP office, he was escorted to the interview room.  Detective Chavarria read Appellant his Miranda rights from a card and then Appellant read aloud these rights off of the card.  Appellant initialed each right, affirmatively answered that he understood his rights, and signed the Miranda warning card at 1:44 a.m.  Detective Chavarria talked with Appellant for about forty minutes before taking a written statement.  They moved to Detective Chavarria=s cubicle and began taking the statement at 2:25 a.m.  As Detective Chavarria was typing up the statement, Appellant was allowed to read along.  Once it was completed at 3:27 a.m., Appellant read it from the computer monitor and then read a printed copy.  Appellant initialed each paragraph of the statement as he read.  Two other officers witnessed Appellant signing the statement.  Detective Chavarria recalled that Appellant was not handcuffed at any time during his conversations with Appellant in the interview or at the cubicle.  When Appellant arrived at the station, he requested to use the restroom and was allowed to do so and Appellant later asked for coffee and was given some coffee.  According to Detective Chavarria, Appellant=s demeanor was calm, he did not appear under the influence of any kind of substance, and the detective had no concerns that Appellant was not mentally capable of giving a statement because Appellant was fine.

On cross-examination, Detective Chavarria stated that he could not recall how many times in the interview room Appellant asked how his wife was doing.  He did not recall, but said it was possible that he might have told Appellant that they would find out how his wife was doing after the statement.  However, Detective Chavarria stated that Appellant never indicated that they hurry up with the statement for that purpose.  Detective Chavarria stated that Appellant seemed very alert and did not seem tired.  On redirect, Detective Chavarria denied promising Appellant anything for his confession, and denied telling Appellant that he was not going to tell him what state his wife was in until he finished giving the statement. 

At trial, Appellant testified about his statement and the surrounding circumstances.  According to Appellant, while he was in the patrol car he started having some flashbacks about his mother who had died in an accident.  He started having trouble breathing and passed out.  His next memory was hearing a loud noise and being in the hospital, handcuffed to the bed.  The next thing he remembered was being in the station.  Appellant kept asking Detective Chavarria to find out how his wife was doing, but the detective would not tell him.  Appellant recalled that Detective Chavarria told him that they needed to make a statement first.  Appellant asked repeatedly, but the detective kept on telling him to make the statement first.  Appellant testified that he signed the statement, but never read it because he wanted to know how his wife was doing.  Appellant stated that he told the detective that he never loaded the shotgun.  On

cross-examination, the State questioned Appellant about his voluntary statement.  Appellant stated that Detective Chavarria promised him that he would let him know what happened to his wife if he gave him the statement.  Appellant again denied telling Detective Chavarria that the shotgun was loaded. 

After reviewing the totality of the circumstances, we find there is evidence supportive of the trial court=s implied finding that Appellant=s statement was voluntarily given.  There is no evidence in the record that indicates any coercive conduct by the police officers.  While Appellant testified that he was suffering from flashbacks before losing consciousness, other witness testimony indicates that he was medically cleared for release at the hospital and that nothing was wrong with him.  Ms. Sanchez testified that Appellant initially refused to talk to medical staff, but after the metal tray dropped, Appellant was lucid and answering questions.  Although Appellant had been drinking, the medical records indicate he was not legally drunk while at the hospital.  While Appellant testified he was anxious to complete the statement, Detective Chavarria stated that Appellant never indicated that desire to him, and the detective denied promising Appellant anything for his confession or specifically telling Appellant he would not tell Appellant information about his wife=s condition until he finished the statement.  Finding no abuse of discretion, we conclude the trial court did not err in denying Appellant=s motion to suppress and in admitting the written statement into evidence.  Issues Seven and Eight are overruled. 

For the reasons stated above, we affirm the trial court=s judgment.

January 22, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

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^[1] Officer Gabriel Espalin bagged Appellant=s hands while Appellant was at the patrol unit.  Appellant was crying at the time, but according to Officer Espalin, Appellant was not rocking back and forth in the car until after his hands were bagged.

^[2] By letter brief, the State contends that Appellant has waived his first four issues on appeal because he failed to object to the jury charge and thereby invoked the benefit of the lesser offense and is estopped from challenging the sufficiency of the evidence to sustain his conviction for that lesser offense.  See State v. Lee, 818 S.W.2d 778, 781 (Tex.Crim.App. 1991)(plurality opinion), overruled on other grounds by, Moore v. State, 969 S.W.2d 4 (Tex.Crim.App. 1998).  In State v. Lee, the Texas Court of Criminal Appeals in a plurality opinion held that a defendant Aby invoking the benefit of the lesser included offense charge at trial [,] in not objecting to its submission to the jury, and in fact by requesting that such instructions be included, appellant is estopped from then complaining on appeal that the evidence failed to establish all the elements of that lesser offense.@  Lee, 818 S.W.2d at 781.  The appellant in State v. Lee was charged with murder and requested the lesser-included offense of voluntary manslaughter and the jury found him guilty of the lesser offense.  Id. at 778-80.  On appeal, the appellant challenged the essential element of  Asudden passion@ for a voluntary manslaughter conviction, an additional and distinctive element that the State did not bear the burden of proving in its prosecution of the greater offense.  See id. at 781; see also Vann v. State, 853 S.W.2d 243, 246 (Tex.App.--Corpus Christi 1993, pet. ref=d)(discussing State v. Lee and the prior distinction between murder and voluntary manslaughter).  We find that the holding of State v. Lee is inapplicable in this case, as the charged offense and the lesser offenses differ only in culpable mental states, and therefore will address the merits of Appellant=s first four issues.  See Vann, 853 S.W.2d at 247 (concern in State v. Lee attaches only to the sudden passion issue). 

^[3] The Texas Court of Criminal Appeals recently clarified the emergency doctrine exception to the warrant requirement in Laney v. State, 117 S.W.3d 854 (Tex.Crim.App. 2003).  In Laney, the Court noted that although the emergency doctrine is considered synonymous with  the exigent circumstances doctrine, there is a narrow, but critical distinction between the two.  Laney, 117 S.W.3d at 861.  The exigent circumstances applies when the police are acting in their Acrime-fighting@ role, while the emergency doctrine applies when the police are acting in their limited community caretaking role to Aprotect or preserve life or avoid serious injury.@  Id. 

^[4] The federal constitution requires that proof of consent to search be shown by a preponderance of the evidence, while the Texas Constitution requires the State to prove by clear and convincing evidence that the consent to search was voluntary.  See United States v. Hurtado, 905 F.2d 74, 75 (5th Cir. 1990)(preponderance of the evidence); Ibarra, 953 S.W.2d at 245.