Abram v. State

• Decision Date: 04 December 2019
• Docket Number: No. 10-16-00348-CR,10-16-00348-CR
• Parties: LAWSON ABRAM, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

LAWSON ABRAM, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-16-00348-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

December 4, 2019

From the 87th District Court Freestone County, Texas

Trial Court No. 15-067CR

MEMORANDUM OPINION

Appellant Lawson Abram was convicted by a jury of capital murder in the death of Douglas Carr Hurst. Abram received an automatic life sentence without the possibility of parole after the State elected not to seek the death penalty. In four issues, Abram challenges his conviction and sentence. We affirm.

Background

Amber Halford,¹ Hurst's niece, and Dustin Sanoja, Hurst's nephew, conspired with Joshua "J.D." Mulkey to burglarize Hurst's residence in Teague, Texas in order to steal firearms and other valuables. Hurst was out of town with a number of family members celebrating his recent marriage. The burglary was discovered on Sunday March 8, 2015 by Hurst's step-daughter, who was checking on the house and feeding the dogs while the family was out of town. The burglars shoved through a set of French doors and kicked in the combination-secured door to the master bedroom where Hurst stored his large gun collection. A number of firearms were stolen, including a Glock .357 caliber handgun with a grip-controlled laser site.

Hurst's step-daughter called to inform him of the burglary. Hurst left Galveston earlier than originally planned in order to secure his house after the break-in. The French doors through which the burglars entered did not lock properly and could be opened with a strong push, even with the deadbolt engaged. After arriving at his residence, Hurst placed a stool with glassware on top in front of the French doors to alert him in the event of another break-in. Some time after 1:00 a.m. on March 9, J.D., accompanied by Abram and Abram's cousin, OJarian McClenon ("O.J."),² broke into Hurst's home through the French doors. J.D. and Hurst exchanged gunfire, and both were shot. Abram and O.J. fled. J.D. ran from the residence, collapsing and dying in Hurst's back yard. The .357 Glock stolen in the burglary the night before was beside J.D.'s body. Hurst was able to call 9-1-1, and he was transported by ambulance to a hospital in Waco. Hurst succumbed to his injuries a few days later. During questioning by law enforcement, Abram confessed his participation in the burglary.

Issues

Abram presents the following points of error:

(1) The trial court abused its discretion in denying Abram's motion to suppress his statements that were made to law enforcement in violation of article 38.22 of the Code of Criminal Procedure and the Fifth Amendment to the United States Constitution and his motion to suppress the evidence seized from his cell phone.

(2) The evidence is legally and factually insufficient to convict Abram of capital murder.

(3) The trial judge erred in denying Abram's request for a continuance to allow Dr. Phillip Taft to testify; and in denying Abram's motion for a new trial to allow O.J. to testify on Abram's behalf in violation of Abram's Sixth Amendment right to call witnesses and to rebut evidence presented by the prosecution.

(4) Section 19.03 of the Penal Code, which allows the imposition of life without the possibility of parole, is unconstitutional as it precluded Abram from presenting mitigating evidence in violation of Abram's right to due process and right to not be subjected to cruel and unusual punishment under both the U.S. and Texas Constitutions.

Discussion

A. Motions to Suppress. In his first issue, Abram argues that the trial court erred in denying his motions to suppress. Abram asserts that the oral statement he gave to law enforcement, in which he confessed to his role in the offense, and the evidence seized from his cell phone should be suppressed because: (1) Abram was in custody for purposes of article 38.22; (2) the Miranda warning given was ineffective because it occurred in the middle of Abram's questioning and was without curative measures; (3) Abram's confession was not voluntary because it was the result of coercive and deceptive actions and improper inducements; (4) Abram did not expressly waive his rights under Miranda or 38.22; and (5) Abram's cell phone was searched without a warrant or his consent.

1. Standard of Review. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). In reviewing the trial court's decision, we do not engage in our own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Therefore, we give almost total deference to the trial court's rulings on (1) questions of historical fact, even if the trial court's determination of those facts was not based on an evaluation of credibility and demeanor; and (2) application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108-09 (Tex. Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002). But when application-of-law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court's rulings on those questions de novo. Amador, 221 S.W.3d at 673; Johnson, 68 S.W.3d at 652-53.

2. Findings of Fact and Conclusions of Law. After an evidentiary hearing on Abram's motion to suppress his oral statements, the trial court made the following findings of fact and conclusions of law:

1. On March 9, 2015, Freestone County Sheriff's Deputy Clayton Aldrich, while investigating a shooting that left one person dead (J.D. Mulkey), and the other in critical condition (Doug Hurst), was advised by witnesses that Defendant had been with J.D. Mulkey the evening before the shooting.

2. That Deputy Aldridge [sic] went to the home of Defendant to see if he would be willing to give a statement. That Defendant agreed to go with Deputy Aldridge [sic]. That Defendant was not placed under arrest or restrained by Deputy Aldrich. Defendant voluntarily left his home and entered Deputy Aldrich's vehicle and went to the Teague Municipal building. Defendant voluntarily went into said building with Deputy Aldrich.

3. Defendant was interviewed by Texas Ranger Patrick Pena in a room at said building. At the time of the interview the Defendant was not handcuffed or restrained in any way. Defendant was not told he could leave and likewise was not told he had to remain. Defendant voluntarily agreed to give Patrick Pena a statement. Initially, the Defendant received no Miranda admonishments or admonishments set out in Article 38.22 Section 2 of the Texas Code of Criminal Procedure. However, this Court concludes that at the time of the initial interview the Defendant was not the subject of custodial interrogation in that he had not been arrested or detained and Ranger Pena had no information that caused him to focus on Lawson Abram as a Defendant instead of an informational witness.

4. During the interview Ranger Pena told Defendant that Defendant was not being truthful, and Defendant changed portions of his statement that implicated Defendant in the homicide of Doug Hurst. Defendant had a cell phone and was never advised that he could not use it. Defendant was never restrained while he was giving the statement.

5. At the time that Defendant began to implicate himself, Ranger Pena gave Defendant the statutory admonishments required by Section 2, Article 38.22 of the Texas Code of Criminal Procedure. After that Defendant continued to give a statement and never requested an attorney or asked to end the interview.

6. This Court concludes that the statement of Lawson Lee Abram was voluntarily given and is admissible into evidence.

After a hearing on Abram's motion to suppress evidence seized from his cell phone, the trial court made the following ruling:

Based on the evidence heard and considered by the Court, I find by clear and convincing evidence that access to Lawson Abram's cell phone, [sic] information was voluntarily provided to the officers; specifically that Patrick Pena, while conversing with the defendant, Lawson Abrams [sic], in an interview at the Teague Police Department while Lawson Abram was not under arrest, provided to Mr. Pena access to the phone and the password to the phone for his being able to access it; that the defendant at that time was free to leave and not in handcuffs or under arrest; that later, after the defendant had been arrested, Clayton Aldrich approached the defendant and asked for permission to look at the phone. Again, Lawson Abrams [sic] provided permission, including the password, and signed a Consent to Search Authorization, which has been introduced in this hearing as State's Exhibit 1.

Court finds the defendant was not represented by counsel at that time but was under arrest when he consented to the use of the phone. Therefore, I conclude the cell phone evidence was knowingly and voluntarily provided by Lawson Abrams [sic] to the peace officers. Therefore, your motion is respectfully denied.

3. Interview or Custodial Interrogation. Whether an individual is "in custody" depends upon a review of the totality of the circumstances, and "the initial step is to ascertain whether in light of 'the objective circumstances of the interrogation,' a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" Howes v. Fields, 565 U.S. 499, 509, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012) (citations omitted); see also Estrada v. State, 313 S.W.3d 274, 294 (Tex. Crim. App. 2010) ("[T]he ultimate...