Hines, Charles v. State

• Court: Court of Appeals of Texas
• Decided: July 24, 2003
• Docket: 14-99-00515-CR
• Status: Published

Opinion

Affirmed and Opinion filed July 24, 2003

Affirmed and Opinion filed July 24, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-99-00515-CR

CHARLES HINES, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________________________

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 790,576

_______________________________________________________________________

                                          O P I N I O N   O N   R E M A N D

            Appellant Charles Hines was convicted by a jury of aggravated kidnapping and sentenced to twenty-seven years’ imprisonment.  On direct appeal from his conviction, appellant challenged the legal sufficiency of the evidence and argued that the trial court erred by:  (1) allowing statements of confidential informants without revealing their identities; (2) admitting appellant’s oral and written statements; and (3) failing to instruct the jury on the lesser included charge of kidnapping.  This court issued its opinion reversing appellant’s conviction on the grounds that the evidence was legally insufficient to prove aggravated kidnapping because appellant did not “interfere substantially” with complainant’s liberty as

required by Tex. Pen. Code § 20.01(1).  See Hines v. State, 40 S.W.3d 705, 713–14 (Tex. App.—Houston [14th Dist.] 2001), rev’d, 75 S.W.3d 444 (Tex. Crim. App. 2002).  We determined that the term “interfere substantially” required “more than temporary confinement or slight movement” of the complainant.  Id.  The Court of Criminal Appeals reversed and held that the term “interfere substantially,” as used in the Texas kidnapping statute, is unambiguous and does not require a showing of “more than temporary confinement or slight movement.”  Hines v. State, 75 S.W.3d 444, 447 (Tex. Crim. App. 2002).  The court further found the evidence presented at trial was legally sufficient to sustain the verdict and remanded the case for consideration of appellant’s remaining points of error.  Id. at 448.

                                                             I.  Background

            On June 29, 1998, Rebecca Thornton, a teller at Klein Bank, arrived at work to open the bank for the day’s business.  As she approached the front door, two men emerged from the bushes and told her to unlock the door.  Both men were dressed in black clothing and wore ski masks and gloves; one of them carried a shotgun.  Thornton entered the bank and attempted to lock the door behind her.  One of the men placed the barrel of the shotgun between the doors, pried the doors open, and grabbed Thornton by the throat.  The gunman ordered Thornton to show him the alarm mechanism and instructed her to disarm the alarm system.  When Thornton encountered difficulty disarming the system, the gunman threatened to shoot her.  After Thornton disarmed the alarm system, the gunman told Thornton to lead him to the vault, which was near a large window.  At about that time, Thornton saw another teller, Darlene Standlee, arriving at the bank.  The men instructed Thornton to signal to Standlee to enter the bank.  Instead, Thornton mouthed to Standlee, “don’t come in.”  Standlee, who is partially deaf and reads lips, understood Thornton’s warning and began to run.  As the two men pursued Standlee, Thornton escaped through a back entrance and left to seek assistance.

            Once outside the bank, the men ordered Standlee to halt.  Fearing for her life, Standlee did as instructed.  The men grabbed Standlee by the back of her neck, forced her into the bank and ordered her to open the vault.  Standlee disarmed and opened the vault, and the men began placing money in a bag.  The men then realized Thornton was no longer in the bank, and quickly fled with approximately $33,000.

            Appellant was subsequently charged with the aggravated kidnapping of Thornton.  He was also charged with the aggravated robbery of Standlee.  While both offenses were tried together, appellant appealed his conviction for aggravated robbery separate and apart from his appeal of the aggravated kidnapping conviction.  The aggravated robbery conviction is not at issue in this appeal; however, appellant raises substantially similar points on both appeals.  See Hines v. State, No. 14-01-00514-CR, 2001 WL 363644, *1 (Tex. App.—Houston [14th Dist.] April 12, 2001, no pet.) (not designated for publication).  In affirming his conviction for aggravated robbery, we found the trial court did not err in refusing to allow identification of the confidential informants, properly admitted appellant’s statements, and properly denied appellant’s requested instruction on the lesser included offense of robbery.  Id.  We now turn to appellant’s remaining three points of error in this appeal.

                                                               II.  Discussion

                                 A.  Testimony Regarding Confidential Informants

            In his second, multifarious point of error, appellant argues the trial court erred in (1) admitting the statements of the confidential informants through the testimony of the investigating officer; (2) refusing to disclose the identity of the confidential informants; and (3) refusing to permit appellant to review the informants’ statements in order to cross-examine the accuracy of the statements.

                            1.  Admission of Statements of Confidential Informants

            Appellant first argues the trial court erred in allowing testimony describing  statements made by the confidential informants.  At trial, Harris County Sheriff’s Department Detective Shane McCoy testified regarding information acquired from confidential informants linking appellant to the Klein Bank robbery.  Appellant objected on the grounds that the testimony interfered with his Sixth Amendment right of confrontation and was therefore inadmissible. However, otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered “opens the door,” provided the party offering the evidence does not stray beyond the scope of the invitation.  Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997); Ex parte Wheeler, 61 S.W.3d 766, 772 (Tex. App.—Fort Worth 2001, pet. filed);  Heidelberg v. State, 36 S.W.3d 668, 672 (Tex. App.—Houston [14th Dist.]2001, no pet).  We conclude appellant opened the door to the testimony he claims was violative of the confrontation clause.

            The State’s direct examination of McCoy focused on the existence of the confidential informants and how their statements led to a finding of probable cause sufficient to seek a warrant to arrest appellant.  McCoy testified as follows:

            Q.        In response -- or at some point after this time, did you get a tip on this robbery?

            A.        Yes, ma’am, I did.

            Q.        And the tip was a female or male?

            A.        I would rather not say because it was a confidential informant.

            Q.        Okay.  I’m sorry.  Based on this tip, did you check out this tip?  Did you decide to determine whether it was credible or not?

            Q.        Okay.  Did that tip lead you to another informant?

            A.        Yes, ma’am, it did.

            Q.        Did you check out that informant?

            Q.        Did you determine if they were credible and reliable?

            A.        I believe they were.

            . . .

            Q.        Okay.  After you got this information checked out to be credible and reliable, did you proceed to get an arrest warrant based on probable cause?

            Q.        And did you get that warrant?

            Q.        Did you attempt to serve – well, let me ask you this:  Who did you develop as one of the suspects based on that information?

            A.        The defendant in this case.

McCoy’s direct examination addressed only the probable cause to arrest appellant and was therefore admissible.  See Lillard v. State, 994 S.W.2d 747, 751 n.6 (Tex. App.—Eastland 1999, pet. ref’d) (observing that “the statement of a confidential informant, when offered to establish probable cause, is not considered hearsay” because “[t]he statement is not offered for its truth but to show why an officer sought, and a magistrate issued, a search warrant”).  The State did not question McCoy regarding the substance of the statements by the confidential informants.

            On cross-examination, appellant’s counsel questioned McCoy regarding the confidential informants, apparently seeking to ascertain their identities.  The following exchange took place:

            Q.        You say that you relied upon a confidential informant; is that right?

            A.        I relied upon two confidential informants.

            Q.        One of them being Shauntel?

            A.        No, sir.  She was not a confidential informant.  She gave me a notarized statement at a later date, but she was not a confidential informant.

            Q.        Now, you stated that there was no money given to any of the confidential informants, or was there money actually given to them?

            A.        To my knowledge, there was none given, sir.

            Q.        Did the confidential informant that you were relying upon have any pending charges?

            A.        I would rather not say that sir.

                        I think that would give information out, your Honor.

            Q.        Your Honor, I think it’s important that the jury know what we’re relying upon, the credibility of the person.  He stated on direct examination –

            Court: The Court’s already ruled that the confidential informant does not have to be named.

            Q.        Did you make any deals whatsoever with the confidential informant?

            A.        With either of the two?  No, sir, I did not.

            Q.        Now, the confidential informant had to have been there in order to give a statement, right?

            A.        Which confidential informant are you referring to?

            Q.        To give this -- to lead you to believe it was Hines, wouldn’t he have -- he or she would have to give you a detailed statement, right?

            A.        We have two confidential informants.  You’re referring to either one of them, sir?

            Q.        Either one.

            A.        And you’re asking me were they at the crime scene that day?

            Q.        Yes.

            Court: Court’s already ruled on this.  The confidential informant does not have to be named.

            At this point, appellant’s counsel had not yet elicited a response from McCoy regarding the substance of the informants’ statements.  The questioning was directed toward ascertaining the identities of the informants.  However, appellant’s counsel then questioned McCoy regarding the extent of available evidence connecting appellant with the robbery.

            Q.        The only thing that ties him to the Klein Bank on this date of the offense is this statement --

            A.        No, sir.

            Q.        -- is that right?

            A.        There’s more information than that.  I have a statement from a confidential informant and I have an oral statement of another informant.  And then I have the statement not to tie in, but showing his tie-in with Hines, his oral statement that Mr. Hunt said he knew him.

(emphasis added).

            After McCoy made these statements, appellant’s counsel asked to approach the bench and made the following objection:

Mr. Keele: I’m going to have to object to this confidential informant.  We’re getting testimony as far as through his confidential informant out of the testimony of this witness.  So I’m going to object.

The Court: Note your objection, though.

Mr. Keele: Because I haven’t been given this information about the confidential informant.  And I can’t do proper cross-examination on this person here unless these informants are here.  I know that you have already ruled.  I just wanted to state the objection.

The Court: What you’re saying is that you want the confidential informant named?

Mr. Keele: Yes.  Exactly.  I need the right to cross-examine that person.

The Court: Court’s not going to allow it.  Note your objection.  Note your exception.

Mr. Keele: Can I get a ruling on that?

The Court: That’s what is called a ruling.

            In sum, appellant’s counsel asked McCoy if it was correct that there was only one piece of evidence connecting appellant to the bank on the relevant day.  In so doing, appellant invited the witness to comment upon all of the evidence that did tie appellant to the bank on the date of the offense in question.  Responding to a question which asked if a particular statement was the only evidence tying appellant to the offense, McCoy explained that the informant’s statement “[shows] his tie-in with Hines” and in so doing described the substance of the statements.  Indeed, McCoy gave a reply which encompassed more than the mere existence of a confidential informant and his use in determining probable cause.  See Lillard, 994 S.W.2d at 751–52. We find appellant’s counsel opened the door to the substance of the confidential informant’s statements, and furthermore, that McCoy did not stray beyond the scope of the invitation.  All prior questioning of McCoy was limited to the mere existence of the confidential informants, their relation to the basis of probable cause for appellant’s arrest, and appellant’s attempt to extract the identity of the informants.  The inquiry regarding

class=Section3>

the extent of evidence connecting appellant to the robbery invited a response from McCoy which included the substance of the informants’ statements.  McCoy responded within the scope of appellant’s questioning, and the testimony was admissible.  Although he waited until after the witness answered the question to object, appellant did not object on the grounds of nonresponsiveness, nor did he ask that the testimony be stricken from the record.^[1]  Rather, he merely renewed his earlier objection that he was entitled to the names of the informants so that he might cross-examine them.  We find appellant opened the door to the testimony at issue.

2.  Right of Confrontation

            Even if appellant had not opened the door to the testimony, we would find his challenge to McCoy’s testimony without merit.  Appellant contends the trial court’s actions deprived him of his right of confrontation under the Sixth and Fourteenth Amendments to the United States Constitution because the court refused to allow him to cross-examine McCoy regarding the confidential informants.

            The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  See U.S. Const. amend. VI.^[2]  Its purpose “is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial criminal proceeding.”  See Lilly v. Virginia, 527 U.S. 116, 123 (1999).  Any undue restriction of cross-examination can violate a defendant’s Sixth Amendment rights.  See Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).  However, the rights guaranteed by the Confrontation Clause are not considered absolute and do not necessarily prohibit the admission of out-of-court statements against a criminal defendant.  See Idaho v. Wright, 497 U.S. 805, 813 (1990).  As we have determined, appellant elicited the testimony from McCoy describing the substance of the informants’ statements.  Generally, an appellant may not invite error and then complain thereof on appeal.  See Ex parte Guerrero, 521 S.W.2d 613, 614 (Tex. Crim. App. 1975); Brown v. State, 6 S.W.3d 571, 580 (Tex. App.—Tyler 1999, pet. ref’d.).  Nevertheless, application of the “invited error rule” in this case would amount to a wavier of appellant’s right of confrontation.  See United States v. Taylor, 508 F.2d 761, 764 (5th Cir. 1975).  For such a waiver to be effective, a purposeful rather than an inadvertent inquiry into the forbidden matter must be shown.  Id.  When a defendant, acting through competent counsel, chooses to open up constitutionally forbidden subject matter, he may not effectively complain that his own trial strategy denied him his constitutional rights.  United States v. Davis, 496 F.2d 1026, 1030 (5th Cir. 1974) (citing United States v. White, 377 F.2d 908, 911 (4th Cir. 1967)).  Appellant specifically asked McCoy the extent of evidence connecting him to the Klein Bank robbery.  Based on McCoy’s prior testimony, appellant was aware of the confidential informants and that their statements had been used in support of probable cause for the arrest warrant.  Appellant’s questions to McCoy demonstrate he suspected that the statements of the confidential informants connected appellant to the robbery.  Specifically, appellant’s counsel asked McCoy if either of the informants was present during the offense.  Thus, appellant’s inquiry into the extent of information connecting him to the robbery was a purposeful, not inadvertent, elicitation of forbidden testimony.  Taylor, 508 F.2d at 764.  In addition, McCoy’s response was within the scope of appellant’s request.  Taylor, 508 F.2d at 764.  Therefore, we find appellant effectively waived his right of confrontation as to the confidential informants and the trial court properly overruled appellant’s objection.  Taylor, 508 F.2d at 764.

            We note that even if appellant had not waived his right of confrontation, any resulting violation would be subject to a harmless error analysis.  Shelby v. State, 819 S.W.2d 544, 546–47 (Tex. Crim. App. 1991) (citing Delaware v. VanArsdall, 475 U.S. 673, 684 (1986)).  The Court of Criminal Appeals has established a three-prong test for reviewing courts to analyze whether there was harmless error in the confrontation clause context.  Id.  First, we assume that the damaging potential of the cross-examination was fully realized.  Id.  Second, with that assumption in mind, we review the error in connection with the following factors:  (1) the importance of the witness’s testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross examination otherwise permitted; and (5) the overall strength of the prosecution’s case.  Id.  Finally, in light of the first two prongs, we must determine if the error was harmless beyond a reasonable doubt.  Id.

            In applying this analysis, we focus on McCoy’s testimony and assume that the damaging potential of the cross-examination was fully realized.  Id.  We assume the jury would have heard testimony discrediting the statements of confidential informants identifying appellant as a participant in the offense.  Id.  We then apply the following five factors:

a.         The Importance of the Witness’s Testimony in the Prosecution’s Case

            The State did not seek to introduce evidence regarding the substance of the informant’s statements at trial.  The State questioned McCoy about the informants solely to ascertain their relation to probable cause to arrest appellant.  As such, the substance of the informant’s statements had no significant bearing on the State’s proof of appellant’s guilt.  Id. at 546–47.

b.         Whether the Testimony was Cumulative

            McCoy was the only witness to testify regarding the confidential informants.  The only other witnesses at trial were Thornton and Standlee, the two tellers, and Special Agent Jack Kelleher of the Federal Bureau of Investigation, who was present when appellant signed his written statement.  No witness offered testimony cumulative to that of McCoy’s.  Shelby, 819 S.W.2d at 551.

c.         The Presence or Absence of Evidence Corroborating or Contradicting the Testimony of the Witness on Material Points

            The offending portion of the informant’s statements indicated a potential “tie-in” between appellant and the robbery.  However, at trial, the State introduced appellant’s written statement wherein he confessed to committing the robbery.  Even if the trial court had allowed cross-examination discrediting the confidential informants regarding their knowledge of appellant’s connection with the robbery, the written confession of appellant clearly contradicted any such potential testimony.  Shelby, 819 S.W.2d at 546–47.

d.         The Extent of Cross-Examination Otherwise Permitted

            Appellant was otherwise permitted to fully cross-examine McCoy regarding other individuals who participated in the planning of the robbery, whether any reward money or “deals” were offered to the informants, the details of appellant’s arrest and confession, the accuracy of appellant’s statement, and the possibility that the robbery was committed by someone other than appellant.  The only testimony not allowed by the court during appellant’s cross-examination of McCoy was the actual identity of the confidential informants, and the potential discrediting of the informants’ statements.  Shelby, 819 S.W.2d at 546–47.

e.         The Overall Strength of the Prosecution’s Case

            The State did not seek to introduce the statements of the confidential informants at trial.  The strength of the State’s evidence lay in the testimony of Thornton and Standlee, the two tellers present during the robbery; appellant’s own written confession; and McCoy, the officer who investigated the robbery and took appellant’s written statement.  The statements of the confidential informants were relevant only to demonstrate probable cause for the arrest of appellant and were not necessary for a determination of guilt or innocence.  See Lillard, 994 S.W.2d at 751–52.

            The final step of our analysis requires us to determine, in light of the foregoing examination, whether the error was harmless beyond a reasonable doubt.  Shelby, 819 S.W.2d at 546–47.  Even if the jury heard testimony discrediting the statements of the confidential informants, the fact that the prosecution did not seek to introduce testimony regarding the substance of the informant’s statements, the introduction of appellant’s written confession, and the overall strength of the State’s case, leads us to conclude beyond a reasonable doubt that the denial of appellant’s right to fully cross-examine the witness was harmless.  Id.

            Because we find that appellant “opened the door” to the testimony regarding the substance of the statements made by confidential informants and the violation of the confrontation clause, if any, was harmless error, appellant’s second point of error is overruled.

                                           3.  Identity of Confidential Informants

            As the final part of his second point of error, appellant also maintains that he was entitled to learn the identity of the confidential informants.  Texas Rule of Evidence 508 extends a qualified privilege to the State to refuse to disclose the identity of a person who furnished information or assisted in an investigation of a possible crime.  See Tex. R. Evid. 508; Sanders v. State, 102 S.W.3d 134, 135 (Tex. App.—Amarillo 2002, pet. ref’d).  However, to compel disclosure of the identity of an informant, appellant is required to make a plausible showing that the informant could give testimony necessary to a fair determination of guilt.  See Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991); Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991).  Courts have compelled disclosure where appellant demonstrates that the informant participated in the offense, was present during the commission of the offense, or could otherwise offer testimony material to appellant’s participation in the  offense.  See Edwards v. State, 813 S.W.2d 572, 580 (Tex. App.—Dallas 1991, pet. ref’d); Ashorn v. State, 802 S.W.2d 888, 891 (Tex. App.—Fort Worth 1991, no pet.).  The informant’s potential testimony must significantly aid the defendant.  See Bodin, 807 S.W.2d at 318.  Evidence from any source, but not mere conjecture or speculation, must be presented to make the required showing that the informant’s identity must be disclosed.  Id.  Since the defendant may not actually know the nature of the informant’s testimony, he or she should only be required to make a plausible showing of how the informant’s information may be important.  Id.

            The record contains no evidence that the informant’s testimony was necessary to a fair determination of guilt or innocence, nor does appellant specifically argue such.  See Tex. R. Evid. 508(c)(2); Bodin, 807 S.W.2d at 317–18.  At the hearing on appellant’s motion to suppress, appellant asserted that the confidential informant’s statements to the police were relevant toward the issue of probable cause to arrest appellant.  See Lillard, 994 S.W.2d at 753.  Specifically, appellant argued to the trial court:

[McCoy’s] sole basis for probable cause is from the confidential informant.  If I can’t ask questions about the confidential informant, I’m not asking for their name.  I’m just asking for the information derived from the confidential informant.  What was the basis for probable cause to arrest.

Appellant did not argue that the informant’s testimony was necessary for a fair determination of guilt or innocence; he asserted it was necessary for a determination of probable cause to arrest appellant.  Further, at trial, appellant made no plausible showing that examination of the confidential informant would significantly aid appellant.  Following McCoy’s testimony introducing the substance of statements made by confidential informants, appellant’s counsel stated his objection to the trial court as follows:

Mr. Keele:  Because I haven’t been given this information about the confidential informant.  And I can’t do proper cross-examination on this person here unless these informants are here.  I know that you have already ruled.  I just wanted to state that objection.

The Court:  What you’re saying is that you want the confidential informant named?

            Mr. Keele:  Yes.  Exactly.  I need the right to cross-examine that person.

The Court:  Court’s not going to allow it.  Note your objection.  Note your exception.

            Appellant’s request did not constitute a showing that the informant’s testimony was necessary for a fair determination of appellant’s guilt or innocence.  See Edwards, 813 S.W.2d at 580; Ashorn, 802 S.W.2d at 891.  In his objection, appellant’s counsel makes a bare assertion that the informants’ identities are necessary for his right of confrontation.  However, a mere request for the identity of the informants is insufficient to compel disclosure.  See Bodin, 807 S.W.2d 318; Smith v. State, 781 S.W.2d 418, 421 (Tex. App.—Houston [1st Dist.] 1989, no pet.) (finding that where appellant presented no evidence in his request to identify the informant, there was nothing for the trial court to consider).  Appellant does not assert that the informants participated in the robbery or witnessed the offense, nor does appellant argue that the informants could provide testimony demonstrating appellant’s guilt or innocence.  Edwards, 813 S.W.2d at 580; Ashorn, 802 S.W.2d at 891.

            Accordingly, we hold appellant has not carried his burden in proving the materiality of the confidential informants’ identities.

                                     B.     Appellant’s Oral and Written Statement

            In his third point of error, also multifarious, appellant contends the trial court committed reversible error by allowing into evidence oral and written statements made by appellant after he was arrested.  The gravamen of appellant’s complaint is that the police arrested him without probable cause, and thus, his in-custody statement was the fruit of an unlawful arrest.  Appellant also contends his custodial statements were involuntary and coerced.

            The trial court conducted a pre-trial hearing on appellant’s motion to suppress the written and oral  statements made following his arrest.  McCoy testified regarding appellant’s arrest and the circumstances surrounding his written statement.  The court also heard the testimony of Kelleher, who was present when appellant signed his written statement.   Appellant also testified for the limited purpose of the motion to suppress.  After the hearing, the trial court denied appellant’s motion to suppress.

                                    1.  Standard of Review for Motion to Suppress

            In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review.  Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).  We give almost total deference to the trial court’s determination of historical facts, while conducting a de novo review of the trial court’s application of the law to those facts.  Id.  A trial court’s ruling on a motion to suppress, if supported by the record, will not be overturned.  Hill v. State, 902 S.W.2d 57, 59 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).  Furthermore, if the trial court’s ruling is reasonably supported by the record and is correct on  any theory of law applicable to the case, the reviewing court will sustain it upon review.  See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. App. 1996).  This is true even if the decision is correct for reasons different from those espoused at the hearing.  Id.

                                                        2.  Legality of the Arrest

            Appellant initially argues his statements were inadmissible because the arrest warrant was not based upon probable cause.  The State contends that the record does not support appellant’s claim because the warrant and the accompanying affidavit do not appear in the appellate record.  The Court of Criminal Appeals has set out the procedural requirements for the preservation of error when contesting search and arrest warrants and their accompanying affidavits.  See Miller v. State, 736 S.W.2d 643, 648 (Tex. Crim. App. 1987).  At a hearing on a motion to suppress, the burden of justifying a contested search or arrest is on the State.  Id.  If the State intends to justify the search or arrest on the basis of a warrant, the State must produce the warrant and its supporting affidavit for the trial court’s inspection.  Id.  In its conclusions of law following hearing on appellant’s motion to suppress, the trial court specifically found that “[t]he defendant was arrested pursuant to a valid arrest warrant” and “[t]he probable cause affidavit supporting the warrant provided sufficient probable cause.”        Once the warrant and the supporting affidavit are produced by the State and presented  to the trial court, it is the responsibility of the defendant to see that the warrant and the supporting affidavit are in the record if they are to be reviewed on appeal.  Id.  However, as aforementioned, the arrest warrant and supporting affidavit do not appear in the appellate record.  We presume that missing portions of the record support the trial court’s ruling.  Skinner v. State, 837 S.W.2d 633, 635 (Tex. Crim. App. 1992).  From the trial court’s conclusion of law, it is apparent that the State met its burden, and the trial court received and reviewed the arrest warrant and affidavit.  Once presented to the trial judge, it was the responsibility of the appellant to see that the arrest warrant and supporting affidavit were included in the record on appeal.  See Moreno v. State, 858 S.W.2d 453, 462 (Tex. Crim. App. 1993).  Because the affidavit does not appear in the record, and because the record reflects that it was presented to the trial court, appellant has failed to preserve error for review.  See Miller, 736 S.W.2d at 648.

                                                    3.  Legality of the Confession

            As part of this point of error, appellant also contends that his statements were involuntarily made and coerced.  He claims that the police deceived him by stating that he would not be prosecuted by the federal government for the offense because the officers had no authority to make such a claim.^[3]  At the hearing on the motion to suppress, appellant testified:

The promises he made to me was that – he explained to me what was the difference between Federal and State charges, which I had no concern – no knowledge of the law.  So, he told me if I didn’t confess, I would have one chance to confess, that he would drop it to State instead of Federal charges.

            A confession is involuntary or coerced if the totality of the circumstances demonstrates that the confessor did not make the decision to confess of his own free will. Green v. State, 934 S .W.2d 92, 99 (Tex. Crim. App. 1996).  A misrepresentation made by police to a suspect during an interrogation is relevant in assessing whether the suspect’s confession was voluntary, but it is insufficient to render an otherwise voluntary confession inadmissible.  Id.  The misrepresentation must be viewed in the context of the totality of the circumstances.  Id.  Some types of police deception employed during custodial interrogation to elicit a confession from the accused are constitutionally permissible.  Id.  The focus is on whether the law enforcement official’s behavior was enough to overbear the will of the accused and bring about a confession not freely determined.  Id. at 99–100.

            Though he admitted to discussing the differences between state and federal charges, McCoy specifically denied making any promises to appellant.  Kelleher witnessed appellant’s interactions with McCoy during the taking of the written statement.  Kelleher testified that “in no way” did McCoy threaten or coerce appellant nor did McCoy make any promises to appellant at the time.  The trial court made the following findings of fact regarding the testimony of the witnesses:  “[t]he officers who testified at the pretrial hearing on [appellant’s] motion to suppress the confession were credible.  [Appellant] was not credible.”   The trial court also specifically found that:  “[n]o one coerced or threatened [appellant] to make the confession.  No one promised [appellant] anything in exchange for his confession.  Officer McCoy did not promise [appellant] that federal charges would not be pursued if [appellant] provided a confession.”

            As the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony, the trial court was free to believe the officers’ testimony and disbelieve appellant’s account.  See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted.  Id.  This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.  Id.  We conclude that the trial court’s ruling was supported by the record, and the trial court properly denied appellant’s motion to suppress.  Id. at 855.  Therefore, we find that the trial court did not err in admitting appellant’s oral and written statements at trial, and appellant’s third point of error is overruled.

                                                     C.  Lesser Included Offense

            In his fourth point of error, appellant maintains the trial court erred by failing to instruct the jury on the lesser included offense of kidnapping.  The Court of Criminal Appeals has established a two-prong test to determine whether a defendant is entitled to a charge on a lesser included offense.  Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).  First, the lesser included offense must be included within the proof necessary to establish the charged offense.  Id.  Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.  Id.

            Appellant contends he was entitled to such an instruction because his written statement makes no reference to a deadly weapon used or exhibited by either appellant or his co-defendant during the commission of the offense.  However, appellant’s statement clearly indicates that the co-defendant possessed a shotgun during the robbery.  Specifically, the confession states “[co-defendant] had a black shotgun and he was going to carry it into the bank.”  Later in his confession, appellant states “[co-defendant] and me were wearing long sleeve black shirts and black jeans.  We each had black pull over caps that we had cut eye holes in, and [co-defendant] was carrying the black shotgun.”

            The testimony elicited from Thornton also established that a firearm was used during the robbery.  Specifically, the testimony established that when the two men emerged and instructed her to unlock the door, one of them carried a shotgun and used it to pry the doors open.  Further, when Thornton had difficulty disarming the alarm system, the gunman threatened to shoot her.

            The State concedes that kidnapping is a lesser included offense of aggravated kidnapping.  See Rogers v. State, 687 S.W.2d 337, 344 (Tex. Crim. App. 1985).  Thus, the first prong of the lesser included offense test is satisfied.  The issue is, therefore, whether any evidence exists in the record that would permit a rational jury to find that appellant is guilty only of kidnapping.  Ferrel, 55 S.W.3d at 589.  Kidnapping is elevated to aggravated kidnapping when, among other elements, the abductor uses or exhibits a deadly weapon during the commission of the offense.^[4]  Tex. Pen. Code § 20.03(a) & 20.04(b).  Therefore, if any evidence exists in the record that would permit a rational jury to find that a deadly weapon was not used or exhibited, appellant is entitled to an instruction on kidnapping.  See Ferrel, 55 S.W.3d at 589.

            Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.  Id.  However, the evidence must affirmatively raise the issue.  Bignall v. State, 887 S.W.2d 21, 24 (Tex. Crim. App. 1994).  It is not enough that a jury may disbelieve certain crucial evidence pertaining to the greater offense; there must be some evidence directly germane to the lesser included offense for the factfinder to consider before an instruction on a lesser included offense is warranted. Id.

            Appellant argues that, because his written confession does not specifically mention the use of a deadly weapon during the actual commission of the offense, the jury could have concluded that no such weapon was used.  However, negative inferences that could possibly be drawn from appellant’s confession do not constitute affirmative evidence.  See generally, Bignall, 887 S.W.2d at 24.  The Fort Worth Court of Appeals reached a similar conclusion in Russell v. State, 804 S.W.2d 287 (Tex. App.—Fort Worth 1991, no pet.).  In Russell, defendant sought an instruction on a lesser included offense of robbery arguing that, in the course of his confession, he neither admitted nor denied using a deadly weapon, specifically a knife, during the offense.  In affirming the trial court’s denial of defendant’s request for the instruction, the court stated: “[t]he fact that [defendant] did not mention the use of a knife in the face of overwhelming evidence that he did use a knife, does not constitute evidence showing that a knife was not used.”  Russell, 804 S.W.2d at 289.  Similarly here, appellant argues that his confession makes no mention of a shotgun used during the actual commission of the offense.  However, both Thornton and Standlee testified that one of the men carried a shotgun during the robbery.  Despite his assertions, and in light of the tellers’ testimony, appellant’s failure to continually refer to the shotgun throughout his written statement does not affirmatively raise the issue that a gun was not used during the commission of the offense.  Russell, 804 S.W.2d at 289; Bignall, 877 S.W.2d at 24.  Therefore, appellant’s assertion does not constitute evidence directly germane to the lesser included offense.  Bignall, 877 S.W.2d at 24.

            We find no instance where appellant affirmatively raised the issue that a deadly weapon was not used or exhibited during the offense.  Id.  Further, there is simply no reading of the trial record from which a jury could rationally find that appellant, if guilty, was guilty only of kidnapping.  Ferrel, 55 S.W.3d at 589.  Therefore, appellant was not entitled to a jury instruction on the lesser included offense of kidnapping, and appellant’s fourth point of error is overruled.

                                                                III.  Conclusion

            We find that the trial court did not err in admitting the substance of statements made by the confidential informants, and admitting appellant’s oral and written statements.  We further find appellant was not entitled to an instruction on the lesser included offense of kidnapping.  Therefore, for the foregoing reasons, the judgment of the trial court is affirmed.

                                                                        /s/        Eva M. Guzman

                                                                                    Justice

Judgment rendered and Opinion filed July 24, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish — Tex. R. App. P. 47.2(b).

---

            ^[1]  Generally, the defendant must lodge a timely and specific objection in order to complain on appeal about the trial court's admission of improper testimony.  Tex. R. Evid. 103(a).  An objection made after the objectionable testimony has been given is untimely, and any potential error is waived.  Amunson v. State, 928 S.W.2d 601, 607 (Tex. App.—San Antonio 1996, pet. ref’d).  However, by its very nature, an objection based on nonresponsiveness may come after a response has been made.  Smith v. State, 763 S.W.2d 836, 841 (Tex. App.—Dallas 1988, pet. ref’d).  Therefore, the availability of an objection based on nonresponsiveness is an exception to the general rule that in order to be timely an objection must be made before a question is answered.  Id.  On the issue of a properly made objection on the grounds of nonresponsiveness, the Dallas Court of Appeals has observed:

Not every unresponsive answer should be stricken. It is only when the unresponsive answer is also inadmissible that it should be stricken. An unresponsive answer which is competent and makes more apparent the truth of the matters charged against appellant is admissible notwithstanding its unresponsiveness. Further, it is within the discretion of the trial court to permit a witness for the State or for the accused to explain his testimony. Thus, when a question calls for a “yes” or “no” answer, the witness can explain his answer. If the explanation furnishes relevant facts, even though unresponsive, the answer is nevertheless admissible. A “nonresponsive” objection alone, however, merely informs the trial court why the objection was not made prior to the answer being given. Even after the “nonresponsive” portion of the objection is made, there remains the question of the testimony's admissibility. In this context, in order to properly exclude evidence or obtain an instruction to disregard, a party must address in its objection both the nonresponsiveness and the inadmissibility of the answer. Further, a blanket “nonresponsive” objection alone is an insufficient objection to preserve error where the response is a hybrid answer--that is, where a portion of the answer is objectionable and a portion of the answer is not objectionable.

Smith, 763 S.W.2d at 841(citations omitted).  If appellant now contends on appeal that the witness’s response is inadmissible, we observe that he did not object on the grounds on nonresponsiveness.

            ^[2]  The Sixth Amendment is made binding upon the States through the conduit of the Fourteenth Amendment.  Pointer v. Texas, 380 U.S. 400, 403 (1965).

            ^[3]  At the hearing on the motion to suppress, appellant also argued that his statements were involuntarily made because he was under the influence of marijuana.  Testifying at the hearing on the motion to suppress, he stated that he smoked one marijuana cigarette the day of the statement.  He does not advance this argument on appeal.  Even were he to have preserved this challenge on appeal, the fact that he may have been under the influence of narcotics at the time of the confession does not automatically render his confession involuntary.  Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).

            ^[4]  A person commits the offense of kidnapping if he intentionally or knowingly abducts another person.  Tex. Pen. Code § 20.03(a).  A person commits an offense of aggravated kidnapping if he intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.  Tex. Pen. Code § 20.04(b).  A shotgun is a deadly weapon.  See Thompson v. State, 33 S.W.3d 847, 855 (Tex. App.—Tyler 2000, pet. ref’d).