Robinson v. State

855 S.W.2d 107, 1993 Tex. App. LEXIS 1358, 1993 WL 152882
CourtCourt of Appeals of Texas
DecidedMay 13, 1993
DocketNo. A14-92-00217-CR
StatusPublished
Cited by2 cases

This text of 855 S.W.2d 107 (Robinson 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
Robinson v. State, 855 S.W.2d 107, 1993 Tex. App. LEXIS 1358, 1993 WL 152882 (Tex. Ct. App. 1993).

Opinion

OPINION

ELLIS, Justice.

Appellant, Joseph Lee Robinson, appeals his judgments for three convictions of burglary of a habitation with the intent to commit theft. Tex.Penal Code Ann. § 30.02 (Vernon 1989). The jury rejected appellant’s not guilty plea and the court assessed punishment at thirty-five (35) years confinement in the Institutional Division of the Texas Department of Criminal Justice. We reverse and remand for a new trial.

Appellant contends in his sole point of error that the evidence was insufficient to support the trial court’s finding that his confession was voluntary and therefore it was error to admit the same into evidence. More specifically he asserts that his confession was inadmissible because the State did not controvert, contradict, rebut, or explain appellant’s testimony that the confession was involuntary due to threats, coercion and promises. It will be seen that appellant’s contentions are correct and the judgments must be reversed upon the authority of Farr v. State, 519 S.W.2d 876 (Tex.Crim.App.1975).

A pre-trial hearing to determine volun-tariness was conducted in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). See also Lopez v. State, 384 S.W.2d 345 (Tex.Crim.App.1964); Tex.Code Crim.Proc.Ann. art. 38.22 (Vernon 1979). At the conclusion of the hearing, the trial court found that the confession of appellant was freely and voluntarily made. The trial court made findings of fact and conclusions of law in which he concluded that at no time on August 21 or August 22, 1991, did any employee of the Lake Jackson Police Department [108]*108coerce, or mistreat appellant nor were there any improper promises or threats made to or against appellant. The court further found that the oral and written statement given by appellant after his arrest on August 21, 1991 was given freely voluntarily after appellant voluntarily, knowingly, intelligently and freely waived his rights. We must determine from the record if the court abused its discretion in making this finding.

The indictment alleged three burglaries. Two involved the same habitation and owner, a Mr. Kveton and were alleged to have been committed on the separate dates of August 16, 1991 and August 19,1991. The other burglary was of a habitation owned by a Mr. Sledge and was alleged to have been committed on or about August 10, 1991. The only evidence of appellant’s guilt, apart from his confession, came from the State’s witness, James Ray Conalty, who testified he knew appellant and bought a .45 automatic from him in August of 1991. He turned the automatic over to Detective Jerry Wolford of the Lake Jackson Police Department. Detective Wolford then testified this .45 automatic was identified by Mr. Kveton as an item taken in the burglary of his home.

After the jury was selected but prior to the start of evidence, the trial court held a Jackson v. Denno hearing to determine the voluntariness of appellant’s confession. It was conducted outside of the jury’s presence. The only witness called by the State was Detective Carlos Preciado of the Lake Jackson Police Department. He testified that on August 22, 1991, he received a statement from appellant, which he reduced to writing and appellant signed in his presence. The statement was marked as State’s Exhibit Number 1. On cross examination, Detective Preciado again testified that the statement was taken on August 22 at lunchtime or 12:15 p.m. and that he did not see appellant on the night of August 21. He also testified that a Detective Dale Davis was present for a brief time during the taking of the statement. He stated that Davis was present a few minutes “ten, fifteen minutes, half an hour.’’ Detective Preciado testified at the hearing that appellant had only been in custody “just a very few hours.” During trial, Preciado corrected this testimony to reflect that appellant had in fact been arrested on August 21 and that he did not talk to appellant until August 22. Detective Preciado reaffirmed that Davis also spoke with appellant for a short time but did not recall what Detective Davis said to appellant. Detective Precia-do denied personally making any promises or pressuring appellant.

Appellant was then called to the stand at the Jackson v. Denno hearing to testify to the voluntariness of the confession. Appellant testified that he was arrested about 3:00 p.m. on August 21, 1991 by Officers Davis and Hromadka. Appellant testified to the following:

A. When they arrested me, they came back to the jail, took me back into the office.
Q. Who is they?
A. Dale Davis and Paul Hromadka.
Q. Go ahead.
A. At one point they came back to the jail and they talked to me where they book you. They talked to me right there and told me it was in my best interest to make a statement. And then another time Dale Davis had came back and brought me out and took me to the office.
Q. What kind of promises did Dale Davis make to you?
A. He told me that if I signed the statement he would talk to the DA because he knew the DA.
Q. Did Preciado, who just testified, did he make any promises to you?
A. No.
Q. So Dale Davis is the one that made the promise to you?
A. Yeah.
Q. And he said that he would—
A. He also, when we first got in the office, he jumped — he was standing up when I came in and I sat down. I wasn’t going to sign no statement or anything because I knew better. But then he started yelling at me and leaning over the desk and yell[109]*109ing at me, saying that he was going to give me a whole bunch of time if I didn’t sign a statement. He was going to make sure I got a whole bunch of time because he knew people in high places.
Q. Is that the reason that you signed the statement?
A. Yeah.
Q. Are you saying then you did not sign it voluntarily?
A. Yeah.

The only rebuttal of this evidence by the State was in cross-examination of appellant by impeachment with prior convictions and through use of the statement itself showing that appellant read the warnings on the confession form and that portions of the statement were true. No further witnesses were called at the Jackson v. Denno hearing. At the close of the hearing, appellant’s counsel objected to the admission of the confession on the basis that it was not voluntarily given. The court overruled this objection finding that the statement was voluntarily given and was admissible as a matter of law.

At trial and prior to admission of appellant’s statement before the jury, appellant’s counsel again objected to admission of the statement on the grounds that it was involuntarily taken. This objection was again overruled. Appellant’s statement was then read to the jury in its entirety.

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Related

Espinosa v. State
899 S.W.2d 359 (Court of Appeals of Texas, 1995)
Roy v. State
892 S.W.2d 96 (Court of Appeals of Texas, 1994)

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Bluebook (online)
855 S.W.2d 107, 1993 Tex. App. LEXIS 1358, 1993 WL 152882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-state-texapp-1993.