Gutierrez v. State

708 S.W.2d 937, 1986 Tex. App. LEXIS 12797
CourtCourt of Appeals of Texas
DecidedApril 24, 1986
DocketNo. 13-85-288-CR
StatusPublished
Cited by3 cases

This text of 708 S.W.2d 937 (Gutierrez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gutierrez v. State, 708 S.W.2d 937, 1986 Tex. App. LEXIS 12797 (Tex. Ct. App. 1986).

Opinions

[938]*938OPINION

NYE, Chief Justice.

Appellant appeals his conviction of involuntary manslaughter for which he was sentenced to nine years’ imprisonment and assessed a $5,000.00 fine. The sufficiency of evidence to support the conviction is not questioned. Instead, appellant challenges the admissibility of two confessions he made, and which were introduced before the jury at his trial. We affirm.

Pursuant to a motion to suppress, a hearing was conducted outside the presence of the jury to determine the admissibility of appellant’s two written statements.1 Another such hearing was again had during the course of the trial. The trial court denied the motion to suppress, admitted the statements, and entered findings of fact and conclusions of law.

In his sole ground of error, appellant complains the trial court erred in failing to suppress his confession. Appellant does not argue on appeal that his confession was made involuntarily. He argues that it was the product of an illegal warrantless arrest, and that no attenuating circumstances existed which would serve to purge the taint of the illegal arrest. We find, however, that appellant made these statements prior to the time he was arrested.

A recitation of the facts surrounding the offense and its investigation is necessary. Shortly after 2:00 a.m. on September 1, 1984, the victim, Michael Garza, and four or five others were leaving the Zodiac Lounge in Victoria, Texas. The owners of the lounge were in the process of closing for the night. Michael Garza was standing in the parking lot near the front door talking to another man. One of those present testified he heard a “popping” noise like a “firecracker” or a “tire blowout.” He said he saw á car pass by at the time he heard the noise. He then saw Michael Garza lying on the ground. He could barely see the car and could only describe it as “small” and “dark.” The man with whom the victim had been talking testified he heard a noise “like a gunshot” and saw a small dark car “like a Pinto.” He also saw the victim fall to the ground. The victim died due to a gunshot wound to the chest.

This was basically the extent of the information known by the police until March 7 or 8, 1985, when appellant’s wife gave a statement to police implicating appellant in the crime. Appellant’s wife also told the police that appellant worked for a construction company in Goliad, Texas. The investigating officers then visited appellant at his job-site.

According to appellant, who testified at the suppression hearing and at trial, the officers spoke to appellant’s boss, who called appellant over to speak with the officers. Appellant stated that Tucker, one of the investigating officers, requested that he accompany them “to the station because [they had] to ask [him] some questions.” Appellant asked if he was in any trouble, and he testified that Tucker answered, no, that they only wanted to ask him some questions. When the court asked appellant whether he agreed to go with them to the sheriff’s office, appellant answered: “Yeah, I told them — I told him yeah, let’s go, I guess so. They told me ‘you want to come?’ and I said yeah. I left and they told me to go in that other car.” Appellant also stated that he was not handcuffed.

Tucker testified that he did not have a warrant of arrest at the time he went to the job-site because “[n]ot enough evidence was present.” Tucker stated that appellant was free to leave and free not to talk to them.

Sergeant Tucker also gave the following testimony. Tucker and Arrizóla accompanied appellant into the sheriff’s office. Tucker immediately advised appellant of his rights in satisfaction of Miranda and TEX.CODE CRIM.PROC.ANN. art. 38.22, § 2 (Vernon 1979).2 Tucker explained that he was investigating the death of Michael Garza and that their investigation had [939]*939shown that he was a suspect. When asked how it was shown, Tucker answered that he told appellant it was through statements they had gathered. Tucker did not tell appellant the statements were from his wife until after appellant confessed. Then Tucker opened the case folder and asked appellant if he wanted to talk, and appellant said he had nothing to hide. Tucker asked him about his trip to Victoria and about “certain places in Victoria.” Some ten to fifteen minutes into the questioning, appellant leaned back in his chair and said, “I did it, I don’t know why I did.”

Appellant then told the officers about the incident. The conversation with appellant began at 11:25 a.m. and ended at 12:38 p.m. Tucker typed out appellant’s statement and attached it to a form containing the Miranda warnings. Appellant was given a copy of both. They were read aloud to him. He signed both sheets, with Tucker and Arrizóla witnessing his signature.

Because of the many typographical and spelling errors, Tucker requested that Arri-zóla retype appellant’s statement. This second statement was not substantively different from the first except that information about appellant stopping at a gas station was added. The statement was attached to another Miranda form. Appellant was given a copy of each, they were read to him again, and he signed both. This time Arrizóla and another deputy witnessed appellant’s signature. The second statement reads as follows (initials represent those of appellant):

About 6-8 months ago, right around the 1st. of September, 1984, me and my wife Mary, were living in Beeville, Texas, with my parents. I asked my dad if I could borrow one of his cars. It is a compact blackish-green 4-door Pontiac. I wanted to takeMary [sic] (B.G.) to Roberto’s in Victoria Texas. My dad said I could borrow the car. A few hours later, me and Mary got into an arguement [sic]. I got mad and left by myself. I took my dad’s Pontiac and headed to Victoria. I stopped in Goliad, Texas and bought some acid from a guy named Carlos. I had been f [sic] (B.G.) drinking Seagram Seven and coke since I left Beeville. When I got out of Goliad city limits I took the acid. I got into Victoria about 7:00 P.M. I went straight to Roberto’s and started drinking Seagram Seven and coke. I don’t remember how may [sic] I had but it was alot. I met this girl named Elizabeth. She said she was from Edna. We hit it off and left together about 10:00P.M. and went to Motel Six and had sex. We were smoking marijuana and drinking. I was really loaded. I drove Elizabeth home to Edna and then star(t)ed (B.G.) driving to Beeville. I was driving through Victoria when I saw the Zodiac lounge. I don’t know why, but I wanted to shoot at the building. I didn’t see anybody around. I remember my dad left a .22 pistol under the front seat. I slowed down and took the pistol, pointed it at the building, and started shooting. I (kept) (B.G.) shooting until the pistol was empty. I looked over and saw this guy fall down by the front door. I didn’t see him before. I took off and went straight home. I stopped at Billups Service Station to gas up before continuing to Beeville. I told my dad about three weeks later of what happen. Dad tried to get me to turn mayself in but I didn’t. I think dad sold the pistol I used in the shooting. No one has harmed, threaten or promised me anything in exchanged for this statement.

Due to the similarities between the confessions, only the latter has been reproduced here. After appellant’s confession, he was formally arrested and charged with involuntary manslaughter in causing the death of Michael Garza by discharging a firearm at the premises occupied by the victim.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Livingston v. State
739 S.W.2d 311 (Court of Criminal Appeals of Texas, 1987)
Dancy v. State
728 S.W.2d 772 (Court of Criminal Appeals of Texas, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
708 S.W.2d 937, 1986 Tex. App. LEXIS 12797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gutierrez-v-state-texapp-1986.