Robertson v. State

685 S.W.2d 488, 1985 Tex. App. LEXIS 6264
CourtCourt of Appeals of Texas
DecidedFebruary 27, 1985
Docket2-84-078-CR
StatusPublished
Cited by14 cases

This text of 685 S.W.2d 488 (Robertson 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
Robertson v. State, 685 S.W.2d 488, 1985 Tex. App. LEXIS 6264 (Tex. Ct. App. 1985).

Opinion

OPINION

FENDER, Chief Justice.

This is an appeal from a conviction for voluntary manslaughter. Appellant raises four grounds of error. In his first ground of error appellant argues that his oral statement given to a police officer should not have been admitted into evidence at trial, because it was elicited through custodial interrogation. In his second ground of error appellant claims that the trial court should have granted a mistrial because counsel for the State asked a question of the witness which the trial court had previously ruled could not be made. In his third ground of error appellant urges that the State violated the rule by calling the victim’s mother to testify. Finally, appellant asserts that the State improperly impeached a witness by informing the jury of his prior misdemeanor conviction for lying to a police officer.

We affirm.

This case stems from a dispute between appellant and Frederick Baker, the victim. Appellant claims that he had agreed to help *490 Baker move some furniture in exchange for payment. After performance, appellant tried to collect from Baker on several occasions, but each time Baker became angry and would not pay. On June 27, 1983, appellant was at a pool hall where he met Baker. After once again being threatened by Baker, appellant went home and got a shotgun. He then returned to the pool room and shot appellant from close range outside on the parking lot. Appellant testified that he shot out of self defense, because he had seen a shiny object on Baker’s person. No weapon was found by the police. The shooting occurred about 5:00 p.m.

At about 10:00 p.m. that night appellant, accompanied by his mother, went to the Lew Sterrett Justice Center in Dallas. He approached the warrants desk on the second floor and told an Officer Leverett, who was on duty there, that he was wanted on a “murder charge.” Leverett did not know what appellant was talking about. Lever-ett checked the records at the warrants desk but found nothing referring to appellant. He then asked appellant to explain the circumstances. Appellant responded by saying a man had been hassling him over some money and he pulled out his gun and shot him. After this explanation, Lev-erett placed a telephone call to a separate police division and confirmed that there had been a shooting as described by appellant.

An Officer Johnson, who had been assigned to the investigation of the crime when it occurred some five hours earlier, was then summoned to meet appellant at the jail. He informed appellant that he was being charged in a homicide and read him his Miranda rights. Appellant then signed a statement relating to the incident.

At trial Leverett’s testimony about what appellant had told him at the warrants desk — that he had shot a man who was hassling him over money — was admitted over appellant’s objection. Appellant claims that his oral statements to Leverett were the product of custodial interrogation, and were thus inadmissible because the requirements of TEX.CODE CRIM.PROC. ANN. art. 38.22 sec. 3 were not complied with.

In assessing' appellant’s arguments, we note that a determination of when a person has been subjected to custodial interrogation depends on a variety of factors. Four main factors have been identified: (1) the subjective feelings of the person as to whether he feels himself to be in custody; (2) the subjective feelings of the officer interacting with the person as to whether the person is a suspect; (3) whether or not the focus of the investigation has finally centered on the person; and (4) whether the officer had probable cause to arrest the person. Ruth v. State, 645 S.W.2d 432 (Tex.Crim.App.1979); McCrory v. State, 643 S.W.2d 725, 733 (Tex.Crim.App.1982).

Applying these factors to the facts at bar, we fail to see that Officer Leverett ever placed appellant in custodial interrogation during the exchange in question. We place great significance on the fact that appellant voluntarily walked into the station and began talking to Officer Leverett. See Newhouse v. State, 420 S.W.2d 729, 731 (Tex.Crim.App.1967); Brooks v. State, 580 S.W.2d 825, 833, 834 (Tex.Crim.App.1979). Furthermore, there was not any evidence to suggest that appellant did not feel himself free to go at any time during his exchange with Officer Leverett. On the contrary, appellant’s own testimony showed that he approached and spoke to Officer Leverett on his own initiative.

Appellant argues, though, that at the time he approached Officer Leverett, he was the focus of the investigation. Appellant reaches this conclusion by noting that even if Officer Leverett himself had no reason to suspect appellant, those officers assigned to investigate the crime had already determined that appellant was a suspect. (The State stipulated to this last fact.) In short, appellant asks us to impute' the knowledge of those officers investigating the crime to Officer Leverett, in order to find that appellant was in custodial interrogation. This we decline to do. As far as we can tell, Officer Leverett had no investigatory responsibility, either for the crime *491 in question or for any other crimes, at the time appellant approached him. Instead, his duties were clerical and administrative. For that reason, we cannot hold that Officer Leverett’s follow-up question to appellant, in which he asked him to explain the circumstances, established a relationship of custodial interrogation.

In Ruth, 645 S.W.2d at 436, upon which appellant relies, the Court of Criminal Appeals held that the suspect’s statement to police officers, who had responded to a call from a dispatcher, that he had shot the victim, established a relationship of custodial interrogation because it immediately focused the investigation on the suspect and furnished probable cause to believe that he had committed an offense. Relying on Ruth, appellant argues that his first statement to Officer Leverett that he wanted to turn himself in on a murder charge also established a relationship of custodial interrogation. We disagree. In Ruth the officers who questioned the suspect were directly involved in the investigation. Furthermore, in Ruth the investigating officers approached the suspect and began asking him questions; the suspect did not initiate the conversation. We thus find that appellant was never placed in custodial interrogation. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends-that a mistrial should have been granted because the prosecutor asked Officer Leverett the following question: “Did he [appellant] tell you at any time that the man he shot went for a weapon?” Appellant claims this question was asked in bad faith by the prosecutor because the trial judge had previously instructed the prosecutor that he could only ask Officer Lever-ett to recount appellant’s response to Officer Leverett’s query about the circumstances.

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Bluebook (online)
685 S.W.2d 488, 1985 Tex. App. LEXIS 6264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-state-texapp-1985.