Patrick Inthisan v. State

• Court: Court of Appeals of Texas
• Decided: May 10, 2005
• Docket: 07-02-00263-CR
• Status: Published

Opinion

NO. 07-02-0263-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MAY 10, 2005

______________________________

PATRICK INTHISAN, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 43,612-C; HON. PATRICK A. PIRTLE, PRESIDING

_______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1

In this appeal, appellant Patrick Inthisan challenges his conviction of aggravated

assault with a deadly weapon and the jury-assessed punishment of 20 years confinement

in the Institutional Division of the Department of Criminal Justice. In contending his

conviction should be reversed, he presents two issues for our determination. Those issues

are 1) whether appellant’s confession should have been suppressed by the trial court and,

2) did the trial court reversibly err in refusing to grant a mistrial because of improper jury

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005). argument. For reasons expressed below, we find no reversible error and affirm the

judgment of the trial court.

Background

The prosecution underlying this case arose out of an incident that occurred in the

late hours of December 15, 2000, or during the early hours of December 16, 2000. In the

incident, Phong Nguyen received numerous gunshot wounds outside his home. Those

wounds included injuries to his right shoulder blade, right and left hands, right upper

abdomen, right flank, right femur, right hip and buttocks. Those injuries resulted in the

collapse of his lungs and the partial amputation of fingers on his left hand. Investigators

received tips that led them to suspect that appellant was involved in the occurrence. Two

police officers, Steven Brush (Brush) and Clarence Jones (Jones), were sent to talk to

appellant and returned with him to the police station. Upon his arrival at the station,

appellant was interrogated and gave a written statement which is the basis of his first issue.

Discussion

In support of his first issue contention that the trial court erred in not suppressing his

confession, appellant argues that his arrest was unlawful and that the confession was

rendered involuntary because it was induced by the police and was the result of misleading

and untrue police statements. At the suppression hearing, three witnesses, Brush, Jones,

and David Kucinski (Kucinski) testified. The issue presented by appellant requires us to

briefly recap the relevant testimony.

Brush testified that he was employed as an Amarillo police officer. He said because

of a belief that appellant and an individual named “Pong” might be involved in the incident,

he and Jones were asked to contact the pair and see if they would come to the police

2 station to talk about the shooting. He averred that both of the individuals voluntarily agreed

to do so and that they were not under arrest at the time. Upon their arrival at the station,

because the officer considered appellant a possible suspect in the case, Brush said that

he went over the Peace Officer’s Warning and Constitutional Rights form with appellant in

an interview room and that all of appellant’s constitutional rights were contained in the form

read to appellant. He testified that appellant indicated to him that he understood those

rights and had no questions about them. Appellant then signed the form. There was no

evidence that appellant was interrogated in any manner prior to being informed of his rights.

Kucinski said that he came into the interview to talk to appellant. He averred that

he initially asked appellant if he had been read his rights, and both appellant and Brush

confirmed that he had received those rights. Kucinski said that he spoke with appellant

concerning the shooting and asked him if he would be willing to give a written statement

concerning that occurrence. At first, appellant indicated that he would be reluctant to give

such a statement. Kucinski then told appellant that “he probably needed to give his side

of the story because if the other guys involved in this tried to put the blame on him and we

didn’t have his side, that wouldn’t look right.” At some time thereafter, Kucinski said,

appellant told him he would give such a statement. Kucinski averred that before taking the

statement, he reviewed appellant’s constitutional rights with him. Parenthetically, those

rights are printed on the top of the statement form used by Kucinski in taking appellant’s

statement. In his statement, appellant admitted that he had been involved in the shooting

but said that he had only shot at Phong’s vehicle and not directly at Phong. Immediately

after appellant gave his statement, he was placed under arrest and charged with the

offense of aggravated assault with a deadly weapon.

3 Jones, an Amarillo police lieutenant, also testified at the suppression hearing. He

said that Kucinski and another Amarillo police officer named Tracy were assigned to take

the lead role in the case because of their contacts in the Asian community. Tracy and

Kucinski asked Brush and Jones to attempt to pick up or talk to appellant and “Pong.” He

averred that when he and Brush talked to appellant and “Pong,” and they were asked to

come to the police station, he made it clear that the pair were not under arrest, were not

obligated to come with the police, and the police did not have an arrest warrant. At the

police station, Jones placed “Pong” in an interview room, read him the Miranda warnings,

and then went to the interview room in which appellant was located. As he entered the

room, he said, Brush was reiterating appellant’s Miranda warnings. He left the room when

Kucinski and Jones arrived.

Jones admitted that he did not tell appellant that the officers believed he was

involved in the occurrence and that he was a solid suspect. He did not tell appellant all that

was known about the case and he admitted that if appellant had been told everything that

the officer knew, Jones speculated appellant probably would not have gone with the officers

to the station. Appellant rode in an unmarked car with the officers to the station, was not

handcuffed, and rode in the front seat. Appellant did not present any evidence at the

suppression hearing.

At trial, in addition to introducing appellant’s confession, the State presented two

witnesses who placed appellant at the scene of the shooting, but they also said they did

not see him fire a shot. Again, appellant did not testify or present evidence at trial.

First Issue Discussion

4 The gist of appellant’s argument under his first issue is: 1) his arrest was unlawful

and 2) his confession was involuntary because it was induced by the police and obtained

by misleading and untruthful police statements. We review a trial court’s suppression ruling

under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex.

Crim. App. 1996). In applying this standard, we view the record evidence and all

reasonable inferences therefrom in the light most favorable to the trial court’s ruling and we

must affirm that ruling if it is reasonably supported by the record and is correct under any

theory of law applicable to the case. Id. If no explicit findings of fact are made by the trial

court, we assume the trial court made implicit findings of fact that would be supported by

the record and which support the court’s conclusion. See State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000); State v. Munoz, 991 S.W.2d 818, 821 (Tex. Crim. App. 1999).

As we noted above, appellant’s first argument is that he was unlawfully arrested and

that his confession was the fruit of that illegal arrest. A person is not unlawfully arrested

if he is not placed under restraint or taken into custody. Chambers v. State, 866 S.W.2d

9, 19 (Tex. Crim. App. 1993). An arrest is effected when a person’s liberty of movement

is restricted or restrained. Id. at 19. A person is “seized” under the Fourth Amendment

only, if under all of the circumstances surrounding the seizure, a reasonable person would

have believed that he was not free to leave. See Florida v. Royer, 460 U.S. 491, 502, 75

L.Ed.2d 229, 103 S.Ct. 1319 (1983); Chambers v. State, 806 S.W.2d at 19.

Under the evidence in this case, appellant was asked to accompany the officers to

the police station to answer some questions. He was told on at least two occasions that

he was not under arrest. He was not handcuffed, and he rode to the station in the front

seat of an unmarked car.

5 When a person agrees to accompany police officers who are in the course of

investigating a crime, and the person knew or should have known that the police might

suspect he is implicated in the offense, if he is acting upon the invitation, urging, or request

of police officers and is not forced, coerced, or threatened, the act is voluntary and the

person is not in custody. See Chambers v. State, 866 S.W.2d at 19; Patterson v. State,

836 S.W.2d 787, 790 (Tex. App.--Fort Worth 1992, pet. ref’d). In this case, under the

evidenced adduced and when viewed in a light most favorable to the trial court’s ruling, the

record is sufficient to support the trial court’s implied finding that appellant was not forced,

coerced or threatened, and that he voluntarily consented to accompany the officers to the

station. Thus, it is sufficient to support the trial court’s evident determination that appellant

was not in custody and was not unlawfully arrested.

Appellant next contends that his confession was rendered involuntary because it

was induced by statements made by the police that it would be “better” or “in your best

interest” to tell his side of the story. Appellant does not dispute that he was read his rights

as provided in article 38.22 of the Code of Criminal Procedure. Even so, because we have

decided that appellant was not in custody when he gave his statement to the police, this

article, which only applies to custodial interrogations, would not be applicable.

To have been admissible, appellant’s confession must have been given freely and

voluntarily and without compulsion or improper persuasion. See Tex. Code Crim. Proc.

Ann. art. 38.21 (Vernon 2005). The voluntariness of a statement is determined from the

totality of the circumstances surrounding the giving of the statement. Creager v. State, 952

S.W.2d 852, 855 (Tex. Crim. App. 1997). A statement is rendered involuntary if it has been

obtained through the use of an improper inducement. See Washington v. State, 582

6 S.W.2d 122, 124 (Tex. Crim. App. 1979): Fisher v. State, 379 S.W.2d 900, 902 (Tex. Crim.

App. 1964). The determinative question in deciding whether an inducement, most often

a promise, renders a confession involuntary is whether the inducement makes the

defendant more inclined to admit a crime that he did not commit. See Washington v. State,

582 S.W.2d at 124; Fisher v. State, 379 S.W.2d at 902.

In this case, the officers admitted telling appellant that it would be “better” and “in

your best interest” for him to give his side of the story. That evidence is not sufficient to

make invalid the trial court’s evident determination that the officers’ comments did not

amount to an unequivocal promise of a benefit in exchange for appellant’s confession.

Such an unequivocal promise is necessary to show that a confession was made improper

by an inducement. Chambers v. State, 886 S.W.2d at 20. Because there is evidence that

reasonably supports the trial court determination that the confession was voluntary, it did

not abuse its discretion by admitting the confession.

Finally, appellant contends that the confession was involuntary because the police

deceived him into confessing by not informing him that they considered him a suspect in

the shooting. In that connection, appellant has cited no authority that would support his

conclusion that the asserted police officers’ “deception” in not informing him of their

subjective suspicions made the confession involuntary.

Trickery or deception is not sufficient to make a confession involuntary unless it was

calculated to produce an untruthful confession or was offensive to due process

considerations. Creager v. State, 952 S.W.2d at 856. The ultimate question is whether the

suspect’s will was overborne. Id. The record before us is sufficient to support the trial

court’s conclusion that this was not the case here.

7 Because the record does not show that the trial court abused its discretion in

concluding that the confession was neither the result of an illegal arrest nor was it made

involuntary by improper inducements of the police, appellant’s first issue must be, and is

hereby, overruled.

Second Issue Discussion

In presenting his second issue, appellant presents a two-fold argument. In doing so,

he contends: 1) the State made an improper plea for law enforcement, and 2) the State

argued matters outside of the record.

In considering this issue, we must remember that the granting or denial of a mistrial

is within the discretion of the trial court. See Kipp v. State, 876 S.W.2d 330, 339 (Tex.

Crim. App. 1994). A trial court only abuses its discretion if the reviewing appellate court

can say with confidence that no reasonable perception of the matter under consideration

could have yielded the decision made by the trial court. Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1991). Proper prosecutorial jury argument includes: 1)

summation of the evidence, 2) reasonable deductions from the evidence, 3) answer to

argument of opposing counsel, and 4) pleas for law enforcement. Brown v. State, 692

S.W.2d 497, 502 (Tex. Crim. App. 1985). A jury argument requires reversal if, in light of

the record as a whole, the argument was extreme or manifestly improper, violated a

mandatory statute, or injected new facts harmful to the accused into the trial proceedings.

Borjan v. State, 787 S.W.2d 53, 56-57 (Tex. Crim. App. 1990).

Appellant argues that the State’s jury argument that “we don’t have room for wars

in Amarillo, Texas” and that “if you are going to put our citizens in danger here in Potter

County . . .” constituted an improper plea for law enforcement. A plea for law enforcement

8 may argue the relationship between the jury’s verdict and the deterrence of the specific

crime alleged in the indictment or the impact the jury’s verdict will have on the community

in general. Id. at 55-56. While referencing the impact of the jury verdict on the community

is permissible, argument which attempts to induce the jury to convict because the

community desires or expects a certain result is improper. See Decker v. State, 717

S.W.2d 903, 908-09 (Tex. Crim. App. 1986); Villarreal v. State, 440 S.W.2d 74, 75 (Tex.

Crim. App. 1969).

In this case, the State’s argument never reached the point that it argued the

community expected a conviction. At best, the State’s argument can be characterized as

a plea for law enforcement relating to deterrence of a specific crime (decrease in gang-

related violence). That being so, we conclude the trial court did not abuse its discretion by

denying appellant’s motion for mistrial because the State’s argument was within the bounds

of permissible jury argument. See Holloway v. State, 525 S.W.2d 165, 170 (Tex. Crim.

App. 1975).

Moreover, the trial court instructed the jury to disregard the State’s plea for law

enforcement. Generally, any injury from an improper jury argument is cured by a court

instruction to disregard the argument unless the remark is so inflammatory that its prejudicial

effect cannot reasonably be removed by such an admonishment. Melton v. State, 713

S.W.2d 107, 114 (Tex. Crim. App. 1986). Thus, even assuming arguendo that the State’s

argument was improper, a holding we do not make, the argument was not so inflammatory

that its effect could not have been cured by the instruction to disregard.

9 Appellant additionally contends that the State’s argument that the jury could convict

appellant as a party to the charged offense was an argument of evidence outside of the

record because the indictment did not charge appellant as a party.

Section 7.01(b) of the Penal Code provides that each party to an offense may be

charged with commission of the offense, Tex. Pen. Code Ann. §7.01(b) (Vernon 2003), and,

if the evidence supports a charge on the law of parties, the trial court may charge on the law

of parties even though there is no such allegation in the indictment. Montoya v. State, 810

S.W.2d 160, 165 (Tex. Crim. App. 1989); Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim.

App. 1978).

Here, the trial court included an instruction on the law of parties in the jury charge.2

Appellant made no objection to the charge as presented by the trial court. There is some

evidence in the record supporting appellant’s participation as a party. Appellant’s

confession indicates that he initially acted as a look-out for other participants and actively

shot at the victim’s vehicle during the shooting. Two witnesses corroborated appellant’s

presence at the scene during the occurrence. Thus, there was sufficient evidence to

support a reasonable perception that appellant was a party to the offense.

Additionally, the trial court instructed the jury to disregard the State’s argument

concerning appellant’s culpability as a party. We noted above the rule that an instruction

2 In that regard, the trial court instructed the jury that:

All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both.

10 to disregard is sufficient to cure any improper jury argument unless the argument is so

inflammatory that its prejudicial effect cannot reasonably be removed by such an

admonishment. Melton v. State, 713 S.W.2d at 114. Thus, assuming, without deciding, that

the State’s argument regarding appellant’s culpability as a party was improper, we agree

with the trial court that it was not so inflammatory as to require a mistrial. Appellant’s

second issue is overruled.

In sum, both of appellant’s issues are overruled and the judgment of the trial court

is affirmed.

John T. Boyd Senior Justice

Do not publish.

______________________

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense.

Further, in its charge, the trial court explained that the jury could convict appellant as either a principal (if he knowingly and intentionally committed aggravated assault) or as a party (if he knew that the others intended to commit aggravated assault and acted with an intent to promote or assist the others in committing the aggravated assault).