Port v. State

738 S.W.2d 787, 1987 Tex. App. LEXIS 9299
Court of Appeals of Texas·Decided October 28, 1987·No. 3-85-191-CR·Published·Cited by 6 cases

Opinions

ORDER MODIFYING OPINION UPON PETITION FOR DISCRETIONARY REVIEW

ABOUSSIE, Justice.

Concurrent with the filing of its petition for discretionary review of this cause, the State filed a motion requesting this Court to reconsider its opinion in light of the opinion of the Court of Criminal Appeals in Briddle v. State, — S.W.2d-No. 68,990, Tex.Cr.App., September 23, 1987 (not yet reported). Tex.R.App.P.Ann. 101 (Supp.1987). At issue is the application of Tex. Code Cr.P.Ann. art. 38.22 § 3(c) (Supp. 1987), which authorizes the admission in evidence of an oral statement of the accused “which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused.” In Briddle, the Court of Criminal Appeals rejected the notion, expressed in many of its previous opinions, that an oral statement, in order to be admissible under § 3(c), must lead to or result in the discovery of incriminating evidence. Noting that § 3(c) “places no limitation upon the manner in which the facts asserted are found to be true,” the Court of Criminal Appeals held that the defendant’s oral statement was admissible even though it did not lead police to recover new evidence. In Briddle, the accused described to police a shotgun and machete stolen from the deceased and used in the commission of the offense, and directed police to their location. The police already had recovered the shotgun hours earlier in the place described but did not locate the machete. Nevertheless, it was sufficient that this incriminating fact was independently corroborated by the victim’s mother who was unaware of the oral statement, found the machete where the victim had stated it to be and turned over this physical evidence to police. Finding of the evidence under these facts established the reliability of the confession and rendered it admissible.

In our opinion on original submission, this Court held that Port’s two oral statements at issue in this cause were not admissible under § 3(c) partly because they did not lead to or result in the discovery of incriminating evidence. 736 S.W.2d 865. In order to avoid misunderstanding, we hereby modify our opinion to eliminate the language disapproved in Briddle. However, because Briddle does not alter the [789] basic principles relied on by this Court, the judgment remains unchanged.

The Court of Criminal Appeals in Brid-dle discusses several of its prior opinions, also cited here by the State, as well as a hypothetical example, in which each accused’s oral statement was ruled admissible. In each example, the accused’s oral statement provides information of 'previously unknown and incriminating evidence which was subject to being and was independently verified. The verification supports the truth of the assertion and establishes the reliability of the confession. The character of the true assertions connect the accused to the crime in a special and incriminating manner and thereby conduce to establish his guilt. See, Briddle v. State, supra; McGilvery v. State, 533 S.W.2d 24 (Tex.Cr.App.1976) (statement led to evidence in support of State’s theory that two people committed offense); Chase v. State, 508 S.W.2d 605 (Tex.Cr.App.), cert. denied, 419 U.S. 840, 95 S.Ct. 71, 42 L.Ed.2d 68 (1974) (statement explained significance of wall board found with body and utilized in commission of offense); Ashley v. State, 362 S.W.2d 847 (Tex.Cr.App.1962) (statement led to discovery that keys in defendant’s purse were to victim’s car); Valtiero v. State, 219 S.W.2d 73 (Tex.Cr.App.1949) (statement led to recovery of hat taken from victim during commission of offense).

It is not sufficient that the accused merely confess guilt or even identify and claim property which would establish his guilt, if true. See, Scott v. State, 564 S.W.2d 759 (Tex.Cr.App.1978) (statement “It’s mine” when shown pistol ruled inadmissible); Presswood v. State, 548 S.W.2d 398 (Tex.Cr.App.1977) (statement “Both of them are mine” with respect to two baggies of marihuana ruled inadmissible); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974) (statements “It’s mine” and “It’s stuff” with respect to heroin ruled inadmissible).

Two requirements must be satisfied before an otherwise inadmissible oral statement may be admitted in evidence pursuant to art. 38.22 § 3(c). First, the oral statement must contain a fact or circumstance not then known to the police that is later found to be true.1 Second, the fact or circumstance contained in the statement must conduce to establish the guilt of the accused. Under the facts established here, Port’s oral statements did not meet the test of reliability and neither of his oral statements admitted in this cause satisfied both of these prerequisites for admission.

Before Port’s arrest, the police knew that the victim had disappeared from this particular area near his home; that there were bloodstains in appellant’s home; that his tennis shoe matched a bloody print in his garage and that there were bullet holes in the stairwell of his home. The police had been inside the home and from among six firearms found in appellant’s room, the police removed as evidence only the one which showed indications that it had recently been fired, that being a .22 Ruger pistol. Appellant had been missing since the previous day, and a warrant was issued for his arrest.

When the police first saw appellant, a high speed chase in a residential neighborhood ensued before he was apprehended. At the time of Port’s arrest, the police already suspected that he was guilty of murder, as evidenced by their first question to him, “Did you kill the female postal worker?” His affirmative response only confirmed what they already believed to be true. The State concedes that this questioning began one long continuous oral confession. As stated in its appellate brief, “Of course, the State has consistently taken the position that all of the appellant’s statements were part of one continuous confession.”

[790] In his oral statement to police, appellant asserted many facts, some of which were found to be true and some of which were found to be false. By the fourth question to him, Port was making false assertions as to how and where the body had been hidden. He directed officers to a nearby bayou and described in detail the disposition of the body and his actions in connection therewith, all of which was later determined to be untrue, as the victim's body was located in a field many miles away. Many of Port’s oral statements were clearly false and the information therein unreliable.

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

Port v. State, 738 S.W.2d 787, 1987 Tex. App. LEXIS 9299 (Tex. Ct. App. 1987).

738 S.W.2d 787 (Port v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Port v. State
791 S.W.2d 103 (Court of Criminal Appeals of Texas, 1990)
Rodriguez v. State
775 S.W.2d 27 (Court of Appeals of Texas, 1989)
Port v. State
738 S.W.2d 787 (Court of Appeals of Texas, 1987)