in the Interest of K. A. S., a Child

• Court: Court of Appeals of Texas
• Decided: March 13, 2007
• Docket: 06-06-00084-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00084-CV

IN THE INTEREST OF K.A.S., A CHILD

On Appeal from the 62nd Judicial District Court

Hopkins County, Texas

Trial Court No. CV35963

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

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

Kody Lynn Salyer, the sole appellant in this case, has filed a motion seeking to dismiss his appeal. Pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure, his motion is granted. See Tex. R. App. P. 42.1.

We dismiss the appeal.

Bailey C. Moseley

Justice

Date Submitted: March 12, 2007

Date Decided: March 13, 2007

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-09-00089-CR

                                  RICKY ALLEN BARNETT, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 8th Judicial District Court

                                                              Delta County, Texas

                                                             Trial Court No. 6884

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

                                                     MEMORANDUM  OPINION

            Ricky Allen Barnett and his wife, Cynthia, had experienced a rocky marriage for some fifteen years and Cynthia had once again moved out of their house, this time moving herself and some of their five children into a Delta County house that belonged to Cynthia’s grandparents.  Shortly before sunrise on June 24, 2007, an intruder entered that house and shot Cynthia with a rifle as she slept on the couch.  A lucid Cynthia indicated that she did not see her attacker and did not know his identity.  Despite that lucidity, Cynthia then died of the gunshot wound she sustained.  Barnett was convicted of capital murder in Cynthia’s death and has effected an appeal of his conviction.

            Barnett maintains in his appeal that his written confession was erroneously admitted into evidence because (1) it was obtained after he had been arrested and detained on a facially invalid arrest warrant and (2) it was obtained through misrepresentations made to him and under duress when peace officers threatened that he would be sentenced to the death penalty unless he confessed.  Barnett also urges that the evidence of his guilt is insufficient to support his conviction.  We find no reversible error and affirm the judgment of the trial court.

            Time of Arrest

            Barnett attaches great significance to defining when he was actually under arrest.  Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”  Miranda v. Arizona, 384 U.S. 436, 444 (1966).  Barnett first argues in his brief that he was in custody and under arrest when his statements were given, presumably believing that the State would argue otherwise; the State’s brief does not dispute this.  A person is in “custody” only if, under the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest.  Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996); Rodgers v. State, 111 S.W.3d 236, 239–41 (Tex. App.—Texarkana 2003, no pet.).  In determining whether an interrogation is custodial for purposes of the application of Miranda, we look to the objective circumstances, not to the subjective views harbored by either the interrogating officer or the person being questioned.  See Stansbury v. California, 511 U.S. 318, 323 (1994).  The subjective views of the interrogating officer and the person being questioned are relevant only to the extent that they may be manifested in the words or actions of law enforcement officials.  See Dowthitt, 931 S.W.2d at 254.

            The court in Dowthitt discussed four factors as reflecting that a person is in custody:  (1) when the suspect is physically deprived of freedom of action in any significant way, (2) when law enforcement officers tell a suspect that leaving is no longer a choice, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that the detainee’s freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that the suspect is free to leave.  Dowthitt, 931 S.W.2d at 255; Hennessy v. State, 268 S.W.3d 153, 159 (Tex. App.—Waco 2008, pet. ref’d).

            The record shows that Hunt County Sheriff’s officers apprehended Barnett at gunpoint from his Wolfe City, Hunt County, home at 5:00 a.m. the day following Cynthia’s slaying.  He was handcuffed and transported to the Hunt/Delta County line, where he was transferred to a Delta County sheriff’s department vehicle and taken thence to the Delta County Jail.  He was requested to change into jail attire (being told that it was policy to question only those who were garbed in prisoner uniforms), which he did, and was given his Miranda warnings.  He was then questioned by officers.

            While talking to Barnett, officers warned him that he “had to tell the story” and that if he did not do so, the district attorney was going to make a decision to inject him and that “We’re just going to get the gurney ready, and then they’re going to stick it in your arm.”  Barnett maintains that questions about when he was actually placed under arrest and these threats of death rendered the statement inadmissible.

            During this period of time, there were five video recordings made of interviews with Barnett (during three of which he made at least partial confessions or inculpatory statements) and a final written confession which generally summarized the statements in the fifth and final interview (introduced as Exhibit 40).  Under these circumstances, it is obvious that Barnett was in custody. 

            Allegation of Trickery or Coercion in Obtaining Statements

            The issue as further framed is whether his later custodial statements were involuntary because of the trickery, lies, and threatening language utilized by the officers.  There is an initial question, however, about whether any complaint about the admission of his statement was preserved for our review.

            Barnett requested a suppression hearing, seeking to suppress each of the video recordings and the written confession.  At the end of the hearing, the court ruled explicitly that the written statement (Exhibit 42) was admissible, but made no ruling as to the video recordings.  Although Barnett objected to the admission of the written statement at trial, he indicated that he had no objection to the introduction of any of the video recordings.  The State argues that because multiple other exhibits were admitted with the affirmative agreement of defense counsel which contained the same information as the written statement, any current claim of error in the admission of the written statement was waived.  

            If there is admission of erroneous testimony, that is not cause for reversal if the same fact is proven by other testimony entered without objection, regardless of which party introduced the other evidence.  Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (explaining rule of harmless error, waiver, and common-law doctrine of curative admissibility).  In this case, even if the admission of the statement had been error, the same information was later admitted through other renditions of the same statement without objection.  There is no suggestion or argument that the later admission of evidence was designed to in some way rebut the prior admission.  We have reviewed the recordings of his five interviews, all of which were admitted without objection. 

            The objection raised and overruled by the trial court was to the written statement by Barnett.  In summary, Barnett stated in that written statement that he had shown his AK 47 rifle to a friend on the night before the murder, that he talked to Cynthia on the telephone, and that he drove over to her house.  He continued that he had seen Darius (whom Barnett apparently perceived to be his rival for the affection of Cynthia) in the house with her, and believed that Darius was sleeping on the couch.  The statement further said that Barnett went into the house through a window, entered the living room, and shot the person reclining on the couch.  Barnett related that he did not realize that the target was actually his wife; he had fired a shot, heard her scream, and ran away.  He went on to state that he drove to Galveston, boarded the ferry, and threw the rifle into the water.  When he called back to East Texas and discovered that Cynthia was dead, he returned to his home in Wolfe City and turned himself in.  That statement was signed and is dated June 28, 2007.    

            The recording of his fifth and final interview (and admitted with the agreement of counsel) has virtually the same content as the complained-of written statement.  In two of the other four interviews, although the extraneous details shift and change, Barnett also admitted having fired the shot which killed his wife.  In the first interview, there was no admission of guilt, and in the fourth, he denied the act and terminated the interview.

            We conclude that the objection was waived, and even if error existed, it was rendered harmless by the admission of the same evidence in multiple forms, with the agreement of counsel, that provided the same information.  We overrule the contention of error.^[1]

            Error in Arrest Warrant

            Barnett next contends that reversible error is shown because the trial court erred by denying his motion to suppress his statement due to an error in the arrest warrant. 

            Although the arrest warrant is signed by the county judge of Delta County, it indicated that the issuing court was the district court of Delta County, and ordered the officer to bring Barnett before the district court, not the county court.

            The State did not respond to this contention.  We have reviewed the warrant.  It was obviously prepared using a form intended for use by a different court than the judge who signed it.   However, there is no suggestion that the magistrate who actually issued the warrant was not authorized to do so, or that the error in formatting was an error of any genuine significance in this case.  The contention of error refers only to Articles 18.09 and 18.10 of the Texas Code of Criminal Procedure as the controlling authorities, and we glean nothing from those statutes that supports this argument.  Tex. Code Crim. Proc. Ann. art. 18.09 (Vernon Supp. 2009), art. 18.10 (Vernon 2005).  

            Even if the error were more severe or consequential than indicated here, one must remember that the statements were admitted with Barnett’s acquiescence.

            We overrule the contention of error.

            Sufficiency of the Evidence

            Barnett next contends that the evidence is legally and factually insufficient to support the verdict.  We review the legal and factual sufficiency of the evidence supporting a conviction under well-established standards.  In conducting a legal sufficiency review, we consider 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.  Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).  We must give deference to “the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)).  We are not required to determine whether we ourselves believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting evidence, we must presume that the trier of fact resolved any such conflict in favor of the prosecution, and we must defer to that resolution.  State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).  In conducting a factual sufficiency review, we consider the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006).

            Barnett concentrates his arguments regarding insufficiency toward ancillary details given in his statements and upon evidence which was never presented.  For instance, in one of Barnett’s statements, he said that he had driven to Galveston, boarded a ferry, and tossed his AK 47 rifle overboard; in another, he maintained that he had thrown the rifle into Lake Ray Hubbard.  Barnett points out that the witness who said that he had seen Barnett with such a rifle on the night before the murder admitted that the witness had been drinking alcohol that night.  He alludes to the failure of the State to introduce the actual weapon, the spent cartridge, fingerprints, DNA, or eyewitness accounts (other than Barnett). 

            We have previously discussed the evidence which was presented to the jury, which in large part consists of Barnett’s admissions that he pulled the trigger on a rifle while it was directed toward the person on the couch.  Cynthia was on the couch of that house and was struck by a bullet, a bullet that caused her demise.  We conclude that the evidence is sufficient, both legally and factually, to support the verdict.  We overrule the contention of error

            We affirm the judgment.

                                                                        Bailey C. Moseley

Date Submitted:          May 11, 2010

Date Decided:             May 19, 2010

Do Not Publish

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^[1]We need not address the issue of involuntariness based upon trickery or fear engendered by the officers in this case.  We note, however, that the determination of whether a confession is voluntary is based on an examination of the totality of the circumstances surrounding its acquisition, Reed v. State, 59 S.W.3d 278, 281 (Tex. App.––Fort Worth 2001, pet. ref’d), and that a confession is involuntary if circumstances show that the defendant’s will was “overborne” by police coercion.  Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).  A defendant’s statement must not have been obtained by the influence of hope or fear.  Id. (citing Cain v. State, 18 Tex. 387, 390 (1857)).  Even trickery or deception does not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process.  Id.  The ultimate question is whether the suspect’s will was overborne.  Id.; Lugo v. State, 299 S.W.3d 445, 451 (Tex. App.––Fort Worth 2009, pet. ref’d).  In this case, the only fear was that of death by lethal injection, which the court could conclude in its discretion was nothing more than a warning about the possible punishment for the crime alleged.