Swails v. State

986 S.W.2d 41, 1999 Tex. App. LEXIS 23, 1999 WL 2483

• Court: Court of Appeals of Texas
• Decided: January 6, 1999
• Docket: 04-97-00010-CR
• Status: Published

Opinions

SARAH B. DUNCAN, Justice.

Connie Gail Landers Swails was convicted of capital murder and sentenced to life in prison. She appeals, contending the trial court erred in admitting two psychiatric reports relied upon by her expert witness and in refusing three requested jury instructions regarding duress. Swails also argues the trial court’s findings of fact regarding the voluntariness of her oral and written confessions are not sufficiently specific. We affirm.

Factual and Procedural Background

One evening in 1994, Connie Landers was beaten by her boyfriend, Kevin Swails, because she had no money to give him. Later, the couple went driving. During the drive, Kevin told Connie they were going to rob and kill an old man because Kevin wanted his money and guns. After this conversation, the couple drove to Waldo Blanke’s house and parked their car in front of his door. While Connie sat in the ear, Kevin knocked on the door. Blanke answered, and Connie heard Kevin tell Blanke “we’re going to play a game old man” and then saw Kevin shock Blanke with a 2000 volt stun gun and begin pushing and hitting him repeatedly. Connie, still in the car, heard Blanke saying “oh God, Kevin, oh God.”

At first, when Kevin yelled at her to come inside, Connie did nothing. But then Kevin yelled that he would kill her if she did not come inside. Connie walked inside and, when Kevin told her to get something with which to strangle Blanke, she gave him a radio she found on a nearby table. As Connie watched, Kevin hit Blanke in the head with the radio, pushed him onto the couch, and fell with him onto the floor. Connie then saw Kevin put the radio cord around Blanke’s neck and pull on one end of the cord. Connie held the other end with her knee. After Blanke died, Kevin grabbed some guns, jewelry, and money; wrapped the guns in a blanket; and told Connie to take the guns to the car. She did so, and the couple left. Several days later they married.

Nine months after Blanke’s death, Kevin was arrested on another charge and confessed to his role in murdering Blanke. In his confession, Kevin implicated Connie and she too was arrested. In subsequent oral and written statements, Connie admitted her participation in the burglary and Blanke’s murder and was charged with capital murder. Before trial, Connie moved to suppress her oral and written statements because, she argued, they were involuntary. After an evi-dentiary hearing, the trial court concluded Connie made the statements voluntarily and later admitted them at trial over Connie’s objection.

Connie’s defense was duress, and she called a family violence expert to testify on her behalf. In this expert’s opinion, at the time of Blanke’s murder, Connie’s fear of Kevin’s threats was very real because he had previously stalked, physically assaulted, and threatened her; Kevin presented a threat of death or serious bodily injury to Connie; and a person of reasonable firmness might not have been able to resist his efforts to obtain her participation in the burglary and Blanke’s murder. The jury rejected Connie’s duress defense and returned a verdict finding her guilty of capital murder. The trial court sentenced Connie to life in prison, and she appealed.

The Psychiatric Reports

In her first two points of error, Swails argues the trial court abused its discretion in admitting two psychiatric reports relied upon by her family violence expert because the reports contain an impermissible comment on her failure to testify and constitute inadmissible hearsay. We disagree.

Standard of Review

We review evidentiary rulings under an abuse of discretion standard. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (on rehearing). A trial court does not abuse its discretion if its “ruling was at least within the zone of reasonable disagreement.” Id. at 391.

Comment on Failure to Testify

The Fifth Amendment to the United States Constitution, section 10 of article I of the Texas Constitution, and article 38.08 of the Texas Code of Criminal Procedure prohibit the State from commenting on a defendant’s failure to testify in a manner that invites the jury to construe the defendant’s silence as evidence of guilt. U.S. Const. amend. V; Tex. Const, art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979); see, e.g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). However, in addressing a complaint of this nature, we view the comment from the jury’s standpoint, and “[t]he fact that the language might be construed as an implied or indirect allusion to a defendant’s failure to testify is not sufficient.” Goff v. State, 931 S.W.2d 537, 548 (Tex.Crim.App.1996).

Swails’ complaint at trial centered upon a sentence in Dr. Richard Coons’ report regarding her competency to stand trial. This report, like Coons’ earlier report regarding her sanity at the time of the offense, was admitted after the State’s cross-examination of Swails’ expert revealed she had relied on the reports in forming her opinions in the case. The complained-of sentence is located in the next to last paragraph in the second report:

It is my opinion that Connie Swails is presently competent to stand trial in that she is able to consult with her lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against her. Mrs. Swails had an adequate understanding of the functions of judge, jury, defense attorney, and prosecutor as well as the possible penalty which she could receive if she were found guilty of the charges against her. She indicated that it was her intention to testily in the trial and tell the truth that she did not voluntarily participate in the robbery or the killing of the victim.

(emphasis added). The State asked no questions regarding this part of the report and made no reference to it during its closing argument.

Contrary to Swails’ assumption, we do not believe a jury would have necessarily interpreted this sentence as a comment on her failure to testify or an invitation by the State to interpret her silence as evidence of guilt. Rather, the sentence merely reflects that, at the time Swails’ competency was evaluated, she stated she planned to testify in accordance with her oral and written statements and explain that her participation in Blanke’s murder was involuntary, just as her expert testified. Accordingly, assuming this sentence can be attributed to the State, we hold it can at most be “construed as an implied or indirect allusion” to Swails’ failure to testify at trial and therefore “not sufficient” to constitute an impermissible comment. See Goff, 931 S.W.2d at 548.

Inadmissible Hearsay and Rule 705(d)

In her second point of error, Swails contends the trial court erred in admitting the Coons reports because they were inadmissible hearsay. Additionally, in the combined argument under her first two points of error, Swails argues the trial court erred in admitting the reports under Rule 705(d) of the Texas Rules of Criminal Evidence, which provides the standard for disclosing the facts and data underlying an expert’s opinion or inference when the facts and data are inadmissible “for any purpose other than to explain or support the expert’s opinion or inference.” Tex.R.Crim. Evid. 705(d). However, as the State points out, Swails did not object to the Coons reports as inadmissible hearsay. Nor, so far as we can discern, did she object to the reports under Rule 705(d):

Ms. Snyder: At this point, Your Honor, I would object to the introduction of both [reports]. First of all, the proper predicate has not been laid. Dr. Coons is not here to testify.

Also, your Honor, in addition to that, I believe most importantly there’s some information in here, particularly I direct your attention to the last page, page 3 of it. That’s the competency report, and that refers to Ms. Swails’ intention to testify or not to testify. I believe that would put Ms. Swails in the intangible [sic] position of having her constitutional right she has not waived by seeing a court-appointed psychiatrist to determine competency. At that point, it would be a comment on her not testify-iny, if she should choose not to testify at this trial.

Also, I don’t know if this has any other relevancy concerning at least some of the information in here to cross-examine, but as far as the introduction of the statements, these statements, themselves, I think they would be highly prejudicial.

We will also argue under Rule 403 of the Texas Rules of Criminal Evidence any probative value that could conceivably be in there would be out-weiyhed by judicial effect of constitutional statute [sic].

The Court: What I have a problem with, Jackie, is you can make the decision on what you send to your expert for him to review.

Ms. Snyder: That’s correct.

The Court: And the testimony is from her that you sent these things to her for her to review, and she — her evidence is based on your client’s interview and based on this, and I think that the jury is entitled to see what she based her opinion on. Do you have — and if you didn’t want the jury to see this, you don’t have to let your expert see this document. They could base it on other things or you could have edited whatever you want to edit out.

Ms. Snyder: We would request in the alternative, if the Court is requesting— admitting these documents, that part of it be left off, perhaps the reference to testifying.

The Court: I don’t know whether or not those items you want to have blocked off had something to do with her opinion. If you wanted it to be blocked off, you could have, but you gave it the whole thing.

Ms. Snyder: Your Honor, at that point it’s privileged communication between the attorney and expert retained; however, therefore, I chose not to block off any part, based on simply constitutional statute whether she would testify or not.

I believe there’s no probative value, whatsoever, in the whether she’s going to testify or not referred to in there, in Dr. Coons’ report, and, therefore, we would indicate that it might be relevant; the prejudicial effect would outweigh any probable probative value, and we would request, at the very least, the Court, first of all, not admit the statements, and, secondly, that if the Court does decide to do admit them, to block off that section.

The Court: I’m going to admit [the reports]. All right, the objections are overruled, Ms. Snyder, and [the reports] are admitted.

As demonstrated by this excerpt, Swails did not attempt to argue the Coons reports and the statements attributable to Swails in the reports were hearsay and therefore inadmissible “to prove the truth of the matter asserted.” Tex.R.Crim. Evid. 801(d). Nor did she attempt to argue the reports were inadmissible “for any purpose other than to explain or support the expert’s opinion or inference” and their value in this regard was outweighed by “the danger that they will be used for an improper purpose.” Tex.R.Crim. Evid. 705(d). Rather, Swails objected to the Coons reports because (1) the proper predicate had not been laid since the author of the reports was not then testifying, an all-encompassing complaint that, in context, appears directed at the witness’ competency to testify, see Tex.R.Crim. Evid. 602, or the authentication or identification of the reports, see Tex.R.Crim. Evid. 901; (2) the reports contained an impermissible reference to Swails’ failure to testify; and (3) the probative value of the statement regarding Swails’ intention to testify was outweighed by its prejudicial value. See Tex.R.Crim. Evid. 403. Swails’ first and third objections have thus not been brought forward on appeal, and her second objection has been considered and rejected.

In short, the evidentiary rules and standards Swails now argues on appeal were not presented to the trial judge. As a result, we cannot say the trial court abused its discretion in admitting the reports in contravention of them. See Tex.R.App. P. 33.1(a); Carmona v. State, 941 S.W.2d 949, 953 (Tex.Crim.App.1997); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995); Garcia v. State, 887 S.W.2d 862, 874 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995). Moreover, even if we were to consider these complaints preserved, we believe the trial court could reasonably have decided Swails failed to make the showing required by Rule 705(d), that is, the danger the jury would use the reports for an improper purpose was not outweighed by their value in explaining a basis for Swails’ expert’s opinions. Therefore, the trial court’s decision to admit the Coons reports was within the zone of reasonable disagreement and not an abuse of discretion. Consequently, we overrule Swails’ first and second points of error.

Duress

In her next three points of error, Swails argues the trial court erred in refusing three jury instructions regarding duress. The State counters any error was necessarily harmless because duress was not raised by the evidence.

A defendant is entitled to a charge on any defensive theory raised by the evidence, whether it is “strong or weak, unimpeached or contradicted.” Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987). To raise the defense of duress, there must be some evidence the defendant “engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.” Tex.Pen.Code Ann. § 8.05(a) (Vernon 1994) (emphasis added).

A defendant is “compelled” to engage in proscribed conduct “only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” Id. § 8.05(e). And the threatened death or serious bodily injury is “imminent” only if it will occur in the present, not in the future. See Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App.1989) (interpreting “imminent” in the context of robbery as requiring present, not future, threat).¹ Thus duress is not raised if evidence establishes the defendant “intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.” Tex. Pen.Code ANN. § 8.05(d).

Swails argues she was compelled to enter Blanke’s house because Kevin threatened to kill her if she did not, and her expert’s testimony establishes she legitimately feared Kevin would hunt her down and harm or kill her. However, these statements are not evidence Connie was compelled to enter the house by a threat of imminent death or serious bodily injury. To the contrary, Swails admitted in her oral and written statements she knew before she and Kevin arrived at Blanke’s house that Kevin intended to rob and kill Blanke; she knew Kevin entered the house with only a stun gun; and there was some period of time in which she sat alone in the car — outside the reach of Kevin and the stun gun after Kevin began his attack on Blanke at the front door and after Kevin went inside the house and continued the attack. But instead of taking this opportunity to leave the scene, Connie walked inside the house to a man she knew was not only capable of threatening her but who had in fact beaten her earlier in the day and who was in the process of robbing and killing an old man. Under these circumstances, we hold there is no evidence raising duress. See Tex. Pen.Code Ann. § 8.05. If Kevin’s threat is construed to mean he would hunt Swails down and kill her if she did not go inside Blanke’s house, it was a threat of future, not imminent, harm. Accordingly, any error in the jury charge on duress was harmless beyond a reasonable doubt. See Tex.Code Crim. Prog. Ann. art 36.19 (Vernon 1981); Ex parte Green, 548 S.W.2d 914, 917 (Tex.Crim.App.1977). We therefore overrule Swails’ third through fifth points of error.

Sufficiency of Findings of Fact Regarding Voluntariness of Confessions

In her sixth point of error, Swails argues the trial court’s findings of fact regarding the voluntariness of her confessions violate section 6 of article 38.22 of the Texas Code of Criminal Procedure because they are not sufficiently specific to allow appellate review of the trial court’s application of the law to the facts.

The findings required by section 6 of article 38.22 of the Texas Code of Criminal Procedure “should resolve the disputed fact issues upon which the grounds of error are based.” Sinegal v. State, 582 S.W.2d 135, 137 (Tex.Crim.App. [Panel Op.] 1979 ); see Wicker v. State, 740 S.W.2d 779, 783 (Tex.Crim.App.1987), cert. denied, 485 U.S. 938, 108 S.Ct. 1117, 99 L.Ed.2d 278 (1988). Necessarily, therefore, if the appellant does not contend the trial court erred either in resolving a disputed fact issue material to its conclusion that the challenged statement was voluntary or in arriving at the conclusion it did, any inadequacy in the trial court’s findings of fact is harmless beyond a reasonable doubt. See Tex.R.App. P. 44.2.

Swails does not argue the trial court incorrectly resolved a disputed fact issue material to the voluntariness of her statements, nor does she challenge the trial court’s conclusion that her statements were voluntary. Under these circumstances, we hold any lack of specificity in the trial court’s findings is harmless beyond a reasonable doubt. See id. Our conclusion is further supported by the suppression hearing record, which does not reveal any disputed fact issue material to the voluntariness issue. To the contrary, the sole witness at the suppression hearing was Texas Ranger Clute Buckaloo, who unequivocally testified Swails was properly warned; she thereafter volunteered a detailed account of the events surrounding Blanke’s murder with little or no prompting; she appeared to understand what she was doing and did not appear to be under the influence of any substance; and she was not coerced, threatened, deceived, or in any manner forced to make the oral statement she did. Buckaloo’s testimony is similarly unequivocal regarding the facts material to the voluntariness of Swails’ written statement. Under the circumstances, we fail to see how the trial court could have made any more specific findings than it did, and we hold the eonclusory nature of the findings is harmless beyond a reasonable doubt. See Tex.R.App. P. 44.2. We therefore overrule Swails’ sixth point of error and affirm the judgment.

Dissenting opinion by ALMA L. LÓPEZ, Justice

1 . See also Bryant v. State, 905 S.W.2d 457, 459 (Tex.App.—Waco 1995, pet. ref'd) (interpreting "imminent” in the context of the terroristic threat statute to mean “ 'impending' or ‘close’ or 'on the point of happening’ or 'near at hand’ ”); Hill v. State, 844 S.W.2d 937, 938 (Tex.App.—Eastland 1992, no pet.) (interpreting "imminent” in the context of aggravated assault as “on the verge of happening”); Black's Law Dictionary 676 (5th ed.1979) ("imminent” means “[n]ear at hand; ... impending; on the point of happening; threatening; menacing; perilous.”); Webster’s Third International Dictionary 1130 (1981) ("imminent” means “ready to take place: near at hand: impending; ... hanging threateningly over one’s head: menacingly near”). See generally Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1988) (construe words not defined in the Penal Code "according to ... common usage”).