Port v. State

791 S.W.2d 103, 1990 Tex. Crim. App. LEXIS 60, 1990 WL 50911

• Court: Court of Criminal Appeals of Texas
• Decided: April 25, 1990
• Docket: 1187-87
• Status: Published

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

WHITE, Judge.

Appellant was convicted by a jury of the murder of Debra Sue Schatz a Houston postal carrier. The jury assessed his punishment at 75 years’ imprisonment and a $10,000.00 fine. On direct appeal appellant argued that two oral statements admitted in his trial should have been excluded by the trial court.

The Court of Appeals agreed, holding that the statements were inadmissible because they “did not lead to the discovery of any evidence found to be true conducing to establish appellant’s guilt.” Port v. State, 736 S.W.2d 865, at 874 (Tex.App.—3rd Dist. 1987). This was the interpretation the Court of Appeals gave to Art. 38.22, Sec. 3(c), V.A.C.C.P. Port, 736 S.W.2d 865, supra.

The State filed a motion for rehearing, urging the Court of Appeals to reconsider its holding in light of this Court’s interpretation of Art. 38.22, Sec. 3(c), V.A.C.C.P., as set down in Briddle v. State, 742 S.W.2d 379, 386-388 (Tex.Cr.App.1987), cert. denied, 488 U.S. 986, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988). The Court of Appeals granted the State’s motion, gave brief mention of our holding in Briddle, and clung to its original interpretation of Art. 38.22, Sec. 3(c). Port v. State, 738 S.W.2d 787 (Tex.App.—3rd Dist.1987) (Justice Gammage dissenting, at 791-792.)

This Court granted the State's petition for discretionary review on the ground that the Court of Appeals erred in holding that the oral statements of appellant were inadmissible under Art. 38.22, Sec. 3(c), V.A.C. C.P. We agree with the State, and reverse the decision of the majority of the panel of the Court of Appeals that appellant’s oral statements were inadmissible under Art. 38.22, Sec. 3(c), supra, because the incriminating facts in those statements were either already known by the police or failed to conduce to show the guilt of appellant. Port, 738 S.W.2d 787, supra, at 788-791.

A brief review of the facts is necessary before we begin our analysis. On June 8, 1984, Houston police officers and United States postal inspectors were investigating the disappearance of a female postal worker in a cul-de-sac on Lynbrook Hollow in Houston at about 9:30 a.m. Sergeant Collier arrived at the scene and was summoned to appellant’s nearby home by his father, Bernard Port, who said that his son, a diabetic, was missing and that there were bullet holes in the house. Mr. Port showed Collier some bullet holes in the wall of the stairwell and handed over a pistol that smelled like it had been fired, which Mr. Port had recovered from appellant’s room. Mr. Port was asked to give his written consent to search the house, which he did. During the search a bloody tennis shoe footprint was found on the garage floor and a tennis shoe, which Mrs. Port identified as belonging to appellant, matched the print. Bloodstains were also found in the hallway between the front door and the garage. A fingerprint taken from the doorjamb of appellant’s upstairs bedroom was later identified as belonging to the deceased. At that point Mr. Port telephoned an attorney who advised Mr. Port to have the officers leave the house because it appeared that his son was a suspect. Collier took the pistol which Mr. Port had given him and gave it to Officer Sauce-da. Collier then left to prepare a search warrant.

Sauceda locked the pistol in the trunk of her patrol car and a bulletin was issued seeking appellant as a possible homicide suspect. About 2:00 p.m. Sauceda was standing in front of the Port’s home when she heard a postal worker yell “there he is.” After a car chase appellant was apprehended in an apartment complex parking lot. Appellant was arrested and read his Miranda rights, which he said he understood. Appellant was asked whether he had killed the female postal carrier to which he replied, “Yeah, I shot her.” He further stated that he did not know why he had shot her and that he would show them the place at the bayou where the had dumped the body and the mail pouch. On the way to the bayou, appellant, after questioning, stated that he killed the deceased by shooting her in the head with a .22 calibre pistol after she had tried to escape from his upstairs bedroom. After searching the bayou for about fifteen minutes without any success, appellant was taken downtown by Sauceda. All of the above statements by appellant were excluded from evidence by the trial court.

On the way to the police station, after about ten minutes of silence and in response to no questions by Sauceda, appellant volunteered the following information:

You know, I don’t remember everything that happened, but I do remember walking her up the stairs with my gun. I know she was afraid. But when I got to the top, she fell. You see, she was trying to get away; so, I grabbed her by the blouse. She kept struggling; so I went back up the stairs and I looked down and I started shooting at her. I know I missed her many times, but I know I hit her at least two times, maybe on the head, I don’t know. I just looked at her for a long time. Then I went downstairs and I knew she was dead.

The above statement was admitted into evidence at appellant’s trial.

After the above statement was made, Sauceda asked appellant how he knew Schatz was dead. He responded that he had checked her pulse. He further explained:

I went to get some trash bags, and I put her in them and tied her up. I then started to clean up because I was afraid my parents would find out. I washed my tennis shoes. I cleaned up all the walls. I put her in the trunk of my car, and I just drove around. I got hungry. I ate. When it got dark, I went up there to where I showed you, and I threw her in.

Appellant then stated that he did not know why he had killed her. These statements were not offered into evidence at appellant’s trial even though the trial court had ruled them admissible.

When Sauceda and Port arrived at the police station, Sauceda opened the trunk of the patrol car and placed the gun she had obtained from the Port house on top of her clipboard. As appellant was getting out of the car he asked, “Is that my gun?” Sauceda then asked appellant if he recognized it and he said, “Yes, that is the one I used to kill her.” These statements were also admitted into evidence. Further questioning of appellant occurred at the police station; however, any statements made there were excluded from evidence.

The deceased’s body was later found at midnight on January 8th after a wrecker driver led police to an area from which he had towed appellant’s car earlier that day. The victim’s body was found nearby in the field, along with bloody trash bags. An autopsy revealed that the deceased died from two gunshot wounds to the head. Ballistics tests later revealed that one of the shots was fired from the .22 calibre pistol recovered from appellant’s residence and placed in Sauceda’s car.

Article 38.22, Sec. 3(c), supra, provides that a properly warned oral statement resulting from custodial interrogation is admissible if it:

... contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed. (Emphasis added).

This Court stated in Briddle v. State, 742 S.W.2d 379, supra, that the examples given in the above statute are for illustrative purposes only and do not act as a limitation on oral statements which conduce to establish an appellant’s guilt and are shown to be true. See also, Valtiero v. State, 153 Tex.Crim. 260, 219 S.W.2d 73 (Tex.Cr.App.1949). While some case law indicates that the oral confession or statement must lead to the recovery of items or information before the oral confession or statement is admissible, the statute plainly requires only that the statement assert “facts or circumstances that are found to be true and which conduce to establish the guilt of the accused.” The statute places no limitation upon the manner in which the facts asserted are found to be true Briddle, 742 S.W.2d at 388. After Brid-dle, it is well established that oral statements made by an accused need not lead to or result in the discovery of incriminating evidence as long as the requirements of the statutes are met.

In Briddle, the defendant made an oral confession to a police officer in which he described the events of a murder. In the course of the confession the defendant related how a co-defendant had obtained a machete which had been used to cut the rope that was used to tie up the two victims. He then stated that the machete and a shotgun were taken with them when they fled to Dallas and that both could be found in the car that they subsequently abandoned in Dallas. Earlier that day the car had been found, through statements made by the co-defendant as to where the car was, and after an inventory search a shotgun was recovered. The officer who inventoried the car denied looking under the seats of the car.

Twenty-five days later, the victim’s mother, when she went to claim her son’s car, found the machete under the front seat between the springs and the seat. Unaware of the defendant’s oral confession and having no idea as to whom the machete belonged, she called the assistant district attorney in Houston and told him of her discovery.

On appeal the defendant complained that his oral confession was inadmissible because it did not lead to the discovery of the stolen machete because the machete was found independently of his oral confession. He argued that if the items or information are known to the police before an oral confession or statement is given the statement is not admissible. Briddle, 742 S.W.2d at 387; McBride v. State, 506 S.W.2d 887 (Tex.Cr.App.1975). He further argued that if the machete had been discovered after an oral statement but not as a result of the oral statement it was not admissible either.

This Court rejected both of appellant’s contentions saying that the finding of the machete by the victim’s mother, 25 days after the defendant’s statement, supported the facts asserted by the defendant and conduced to establish his guilt. Thus, it was the subsequent corroboration, and not the incriminating nature, of the machete being found in the car which led to the defendant’s statements being admissible.

Former Presiding Judge Onion, writing for this Court, explained Art. 38.22, Sec. 3(c) in clear terms:

The statute placed no limitation upon the manner in which the facts asserted are found to be true. If a defendant orally confesses to the police to a murder and states he had thrown the murder weapon, a pistol, in a certain well, and the police search the well and find the pistol, whose location was previously unknown to them, there is no problem with the admissibility of the oral confession. Suppose, however, the police search the well and do not find the pistol, but on the next day a passing neighbor, who knows nothing of the oral confession, dips the bucket in the well and it comes up with the pistol, which he turns over to the police. The pistol is identified as the murder weapon. Can it be said the oral confession is not admissible because it did not lead to the recovery of the pistol by the police or its agents? The finding of the pistol by the passing neighbor supports the truth of the facts asserted by the defendant and conduces to establish his guilt, and establishes the reliability of the confession which is the concern of the statute involved.

Briddle, supra, at 388.

As Judge Gammage pointed out in his dissent to the “Order Modifying Opinion Upon Petition for Discretionary Review,” at the time appellant made the statements that were eventually admitted into evidence at appellant’s trial the whereabouts of the victim was unknown to the police and the facts and circumstances surrounding the victim’s disappearance were only suspected. However, the majority opinion of the Court of Appeals erred by relying on the fact that by the time appellant made the statements that were admitted at his trial, appellant had already told the police about shooting the victim with a .22 calibre pistol and thus the statements concerning the murder, since already known by the police, could not be “found to be true.” The majority opinion went on to say that in his oral statements to the police, appellant asserted many facts, some of which were true and some of which were false. Most notably, appellant made false assertions as to where the body was and directed officers to a place where he described in detail the disposition of the body and his actions in connection therewith, all of which were determined to be untrue. Therefore, the majority erred in its analysis that the police already knew the truth regarding the victim’s death. It was only when the body of Debra Schatz was later found and an autopsy revealed that she had died from two gunshot wounds to the head, and a ballistics test established that the gun identified by appellant as the murder weapon was indeed used to kill her, that the statements, through this corroboration, were found to contain true assertions of facts or circumstances conducing to establish appellant’s guilt. Moreover, if but one of the assertions within a confession is found to be true and conduces to show the guilt of the accused, then the confession is admissible in its entirety. Marini v. State, 593 S.W.2d 709 (Tex.Cr.App.1980).

In Santana v. State, 714 S.W.2d 1 (Tex.Cr.App.1986), a codefendant told police where the weapon, that had been used during the commission of the crime, was located. The defendant was then questioned and he also revealed the location of the weapon. The defendant, on appeal, then complained that his statement was inadmissible because the police already knew where the weapon was located as a result of the information that they had obtained from the co-defendant. This Court stated that:

The fallacy with appellant’s argument is that at the time appellant gave his oral statement, the police had not ascertained that Meanes’ (the co-defendant’s) statement as to the location of the weapon was true ... The information contained within the (defendant’s and co-defendant’s) statements was new to the police and led directly to the recovery of the weapons used during the commission of the offense.¹

In the instant case, the police had not ascertained that any part of appellant’s statements were true.

This Court agrees with Judge Gam-mage’s conclusion which states:

Only when the fact or circumstance corroborated the accused’s disclosure of guilty knowledge did the fact or circumstance conduce to establish the accused’s guilt. David Port made assertions of facts and circumstances which were not within the knowledge of the police and which only the killer of Debra Schatz could have known at the time. When these facts and circumstances were found to be true they conduced to establish Port's guilt and his assertions became admissible under Sec. 3(c).

Port, 738 S.W.2d 787, supra, at 792.

Because the oral statement (that appellant had shot the victim twice in the head was later corroborated by an autopsy that was performed on the victim) was found to contain true assertions of facts or circumstances which conduced to establish appellant’s guilt, this Court holds this statement was admissible under Art. 38.22, Sec. 3(c), V.A.C.C.P.

The admissibility of appellant’s statements, “Is that my gun” and “Yes, that is the one I used to kill her,” is a different question. Although the pistol was already in the officer’s control when appellant made the statements, appellant’s statements were not found to be true until the ballistics test was run on the gun. Therefore, the question is whether Briddle completely eliminates a connection between the statement made and the manner in which it was found to be true. If so, then subsequent proof through the testing of the gun which confirmed the gun was the murder weapon would make the statement admissible. We hold that under Briddle, which places “no limitation” upon the manner in which the facts asserted are found to be true, these statements were also admissible.

Lastly, we find the Court of Appeals erred in concluding that the verified facts and circumstances in appellant’s oral confessions did not conduce to establish appellant’s guilt. Port, 738 S.W.2d 787, supra, at 790. In its holding, the Court of Appeals erroneously distinguished appellant’s assertions of guilt from appellant’s assertions which were conducive to showing his guilt:

Whether the defendant claims to have shot the victim once or several times is no more conducive to establish his guilt. The statement does not conduce to establish guilt but is merely an oral assertion of guilt.

Port, supra. The Court of Appeals erred when they held that in the instant case the verified elements within appellant’s confession of guilt were not conducive to establishing his guilt.

The second prong of Art. 38.22, Sec. 3(c) Y.A.C.C.P., “which conduce to establish the guilt of the accused,” establishes a relevancy requirement for the facts and assertions in the oral statements of an accused. This relevancy requirement was met in the instant case where appellant’s oral statements that he shot the victim twice in the head and that he used his .22 calibre pistol to shoot the victim were verified by the later discoveries, respectively, that the victim’s cause of death was two gunshot wounds to her head and that his .22 calibre pistol was ballistically proven to be the murder weapon. These facts and assertions within appellant’s statements were found to be true and were directly conducive to establishing appellant’s guilt by verification of the manner and means by which appellant caused the death of the victim.

We reverse the judgments of the Court of Appeals both on direct appeal and on rehearing, and remand to the Court of Appeals to resolve the points of error unanswered on original submission.

1 . The underlined portion of the above is no longer required under Briddle, 742 S.W.2d at 388.