Perez v. State

674 S.W.2d 851, 1984 Tex. App. LEXIS 5723
CourtCourt of Appeals of Texas
DecidedJune 21, 1984
Docket13-81-255-CR
StatusPublished
Cited by8 cases

This text of 674 S.W.2d 851 (Perez 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
Perez v. State, 674 S.W.2d 851, 1984 Tex. App. LEXIS 5723 (Tex. Ct. App. 1984).

Opinion

OPINION

NYE, Chief Justice.

This is an appeal from a murder conviction. Appellant was tried by a jury in a trial that commenced in August 1980. The jury assessed punishment at fifty years’ confinement in the Texas Department of Corrections.

Appellant, in his first ground of error, claims that the conviction and sentence should be set aside because appellant was deprived of a Statement of Facts. Appellant’s first brief was filed on June 4, 1982. It was not until February 18, 1983 that a complete transcription of appellant’s trial was filed in this Court. On February 22, 1983, the Clerk of this Court notified appellant’s counsel that the statement of facts had been filed. Appellant did not respond. On August 29, 1983, the clerk again notified appellant’s counsel that the statement of facts had been filed. The Clerk also notified him that this Court would grant him leave to file an amended brief in view of the then-completed record. This was not done. We now hold that the statement of facts, having been filed, cured any error which appellant asserts in his first ground of error in his 1982 brief. This ground of error is overruled.

Appellant asserts in his second ground of error that the trial court erred in admitting into evidence appellant’s written confession because it was involuntary and was given without assistance of counsel. In his statement, appellant confesses to having shot Juan Alberto Castro.

Appellant urges that the trial court failed to file findings of fact and conclusions of law in accordance with TEX.CODE CRIM.PROC.ANN. art. 38.22 § 6 (Vernon 1979). This section states, in part:

“In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of a jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific findings of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.”

The appellant testified at trial that he shot the decedent in self-defense. Appellant asserted in his written statement that he fired toward the decedent because he was afraid he was going to be beaten by the decedent and others who were with the decedent.

Our review of the record shows that no pretrial motion to suppress the confession was filed or heard. Appellant’s first objection to the confession was made when the written statement was marked for identification prior to its admission into evidence during appellant’s trial. Thereafter, there was a discussion which occurred off the record. The trial judge announced that he had been advised that appellant’s counsel wanted to raise the issue of voluntariness. Appellant’s objections were as to the admissibility of the whole confession and that certain statements in the confession (i.e., that the decedent had died of a bullet wound and that another individual had been shot) were statements concerning what the appellant had been told by police officers rather than an actual statement made by him.

The trial court held a hearing outside the presence of the jury. Lieutenant Tamayo testified that he read to appellant all of the required warnings and had typed appellant’s confession according to what appellant told him. Lieutenant Tamayo testified that appellant told him that he understood the warnings. After the statement was typed, the appellant made some corrections to the statement. He then signed each page of the statement. The cross-examination of Lt. Tamayo consisted of appellant’s counsel asking the officer only a few questions. He asked: 1) whether appellant had *854 been arrested as the result of a warrant; 2) how long had he been under arrest prior to giving the statement; 3) whether he had been taken before a magistrate; and 4) if he had been furnished a lawyer. Officer Tamayo responded that the appellant had never asked for a lawyer. Appellant did not testify. Appellant put on no witnesses, nor did he introduce any evidence to dispute the testimony of the officer. At the close of appellant’s very brief cross-examination, the trial court made an oral pronouncement that he found the statement made by the appellant to be voluntary. No written findings appear of record.

On appeal, appellant urges that, because he was in custody without first being brought before a magistrate and because he did not have assistance of counsel, a fact issue regarding the voluntariness of his confession is raised. We disagree. We have reviewed the record and find that the appellant never specifically raised the issues at trial that he now raises here on appeal. His only objection of record appears to be directed toward that part of the statement regarding the police informing him that the victim, Castro, and another individual had been shot. Although a hearing was held outside the presence of the jury, we find that appellant raised no specific objections to the admissibility of the statement because it was involuntarily made, nor did he present evidence which would raise a fact issue concerning whether the confession was voluntary or not. See Lindley v. State, 635 S.W.2d 541 (Tex.Crim.App.1982). We find that the cursory cross-examination of the police officer raised no disputed fact issue surrounding the taking of appellant’s confession. The trial judge’s conclusion as to voluntariness appears from the record to be undisputed. If there was a disputed fact issue regarding the taking of the confession, we recognize that the court’s oral pronouncement would not be enough. This would be true since we would be unable to review appellant’s contentions without knowing specifically the facts which the court utilized in determining that the confession was voluntary. Dykes v. State, 649 S.W.2d 633 (Tex.Crim.App.1983). However, since no evidence contrary to Tamayo’s testimony was introduced, there is no disputed fact issue raised. We hold that the trial court did not err in not making any specific written findings of fact and conclusions of law. Appellant’s second ground of error is overruled.

In appellant’s third ground of error, he asserts that the trial court erred in admitting gruesome photographs of the deceased, the deceased’s clothing and photographs of the scene which served no purpose other than to inflame the minds of the jury. The state admitted six black and white photographs which depict, according to the witness Detective William Kings-bury, various views of the Brownsville cafe where the shooting occurred. At trial, appellant’s only objection to the photographs was that they were improperly identified. He also made an objection based upon the best evidence rule. On appeal, his objection is that the photographs served no purpose except to inflame the minds of the jury. One of the photographs, Exhibit 3, was identified by Detective Kingsbury as showing blood on the side wall of the cafe. Appellant never objected at trial that the photograph which shows a splashed substance on a wall identified as blood was gruesome.

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

Related

James Bert Love, Jr. v. State
Court of Appeals of Texas, 2005
Kire McCalvin v. State
Court of Appeals of Texas, 2004
Edward Durrell Hughes v. State
Court of Appeals of Texas, 2000
Zervos v. State
15 S.W.3d 146 (Court of Appeals of Texas, 2000)
Lynn v. State
860 S.W.2d 599 (Court of Appeals of Texas, 1993)
Fuentes v. State
846 S.W.2d 527 (Court of Appeals of Texas, 1993)
Lacca v. State
696 S.W.2d 645 (Court of Appeals of Texas, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
674 S.W.2d 851, 1984 Tex. App. LEXIS 5723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perez-v-state-texapp-1984.