Ashcraft v. State

• Decision Date: 04 May 1995
• Docket Number: No. 13-94-00022-CR,13-94-00022-CR
• Citation: 900 S.W.2d 817
• Parties: Jon Alan ASHCRAFT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 817

900 S.W.2d 817

Jon Alan ASHCRAFT, Appellant, v. The STATE of Texas, Appellee.

No. 13-94-00022-CR.

Court of Appeals of Texas Corpus Christi.

May 4, 1995.

Rehearing Overruled June 22, 1995.

Alfredo Padilla, Brownsville, for appellant.

Luis V. Saenz, Dist. & County Atty., Brownsville, John A. Olson, Asst. County & Dist. Atty., Brownsville, for appellee.

Before SEERDEN, C.J., and HINOJOSA and CHAVEZ, JJ.

OPINION

CHAVEZ, Justice.

A jury convicted appellant, Jon Alan Ashcraft, of burglary of a habitation, and the trial court assessed punishment at seventy-five years in prison. Appellant challenges his conviction by ten points of error. We affirm.

Gloria Gonzalez's house, located in the Parkwood subdivision, was burglarized on May 21, 1990. Upon arriving at her home, she noticed that her front doorknob was hanging loosely from the door. She reported the burglary to the police and gave them a list of the stolen items. Gonzalez never did recover any of her property. A few days prior to the burglary, Gonzalez was mowing her front lawn when she observed a man, whom she had never seen before, pass by on a bicycle. She stated that he gazed at each house as he rode down the street. At trial, Gonzalez identified the man as appellant.

The police suspected that Ashcraft had been burglarizing the houses in the Parkwood subdivision in order to support his drug habit. On June 23, 1991, police officers obtained a warrant to search Ashcraft's residence and to seize heroin, cocaine, and stolen property. In executing the search warrant, the officers seized heroin and seventy-seven items of property reported stolen, including televisions, VCR's, microwave ovens, and Nintendo games. Gonzalez did not identify any of these items as hers.

The police arrested Ashcraft and took him back to the police station. After the police informed appellant of his Miranda ¹ rights, appellant confessed that he had committed several burglaries in the Parkwood subdivision over the past year to year and a half. Ashcraft listed the addresses of seventeen houses in that neighborhood that he had burglarized. This list included the address of 1601 Little Creek which was Gonzalez's residence in May 1990.

Ashcraft was tried and found guilty of burglary of a habitation. The trial court assessed punishment at seventy-five years in prison. Ashcraft appeals from this conviction.

By point one, appellant asserts that the admission of his confession into evidence violated his right under the Fourth Amendment of the United States Constitution and Article I, § 9 of the Texas Constitution. ² Appellant argues that his two confessions were involuntary because: 1) he did not waive his right to an attorney since he did not initial that part of the waiver; 2) his confessions were made on the basis of threats and promises made by the police; and 3) he was medicated at the time the statements were made.

Detective Araiza testified that upon arriving at appellant's house, he showed appellant the search warrant, arrested him, and informed him of his Miranda rights. The detective then asked appellant where he kept the heroin and stolen property. Araiza stated that he neither threatened appellant nor did he threaten to jail appellant's mother. Araiza did tell appellant that his mother could be held accountable for any stolen property found at the house. By this statement, Araiza testified that he was suggesting that if the officers were to find the stolen property without appellant's cooperation, then appellant's mother could be held accountable for the stolen property. According to Araiza, it is normal police procedure to inform the occupants of the house that anyone in the house can be held responsible for drugs or stolen property found. Appellant then showed the officers where the drugs and stolen items were.

At the police station, the officers again read appellant his rights, and he stated that he understood his rights. Thereupon, he initialed and signed the statement waiving his rights and confessed to the burglaries in the Parkwood neighborhood. However, no initials appear beside that portion of the statement waiving his right to have a lawyer present during questioning. Nevertheless, appellant did not ask for an attorney to be present while he was interviewed. Araiza testified that he made no promise to appellant nor did he use force or coercion to obtain the confession.

Before appellant gave his statement, he told Araiza that he was a heroin addict and that he had used some earlier in the morning. During the interview, appellant told the officers that he anticipated experiencing withdrawal symptoms; however, the officers observed no signs of withdrawal. Appellant also complained of back pain and, towards the end of his statement, requested Tylenol 3 with codeine. Officer Byrum stated that appellant asked for the medication, and Byrum said he would get it. He did not promise to get the medication for appellant only if appellant finished making the statement. Appellant received no medication until after he gave his statement. Byrum retrieved appellant's prescribed medicine from his home and gave appellant the pills as prescribed. According to the policy of the Harlingen Police Department, inmates may be given prescribed medication while they are in jail.

The next day, appellant was given the medication at 9:00 a.m., 12:00 p.m., and 4:00 p.m. Appellant was arraigned on this day. At his arraignment, Andres Hernandez, another person being arraigned that day, testified that appellant "looked all strung out" and that he looked drunk or on downers or pills. After the arraignment, appellant volunteered to be taken to the Parkwood neighborhood where he would point out the houses he had burglarized. During the ride, appellant said that he was sick and experiencing withdrawal symptoms, but Byrum testified that appellant did not exhibit any symptoms. Araiza stated that Byrum gave appellant some of the said medication during the ride.

Upon their return to the station after the ride, appellant gave a second statement. Again, the officers read appellant his Miranda rights, and appellant initialed and signed the document waiving his rights. The time given in the second statement reflects that it was made at 12:00 p.m., which is the time that appellant received his medication. Araiza stated that appellant received no medication during the making of the statement and that he observed no signs of withdrawal prior to or during the statement. The contents of the second statement consisted of a list of addresses of houses that appellant had identified as houses he had burglarized.

Araiza testified that throughout the interviews, appellant appeared normal and coherent and spoke in a clear voice. Araiza further stated that appellant was in a good mood and joked with the officers. Appellant wanted to talk about the burglaries and said he was glad it was all over. Araiza believed that appellant understood what his rights were and that he voluntarily relinquished those rights.

To meet constitutional standards, a confession must be both voluntary and taken in compliance with Miranda. Martinez v. State, 645 S.W.2d 322, 324 (Tex.App.--Corpus Christi 1982, no pet.). The determination of whether a confession is voluntary must be based on the totality of circumstances surrounding its acquisition. McCoy v. State, 713 S.W.2d 940, 955 (Tex.Crim.App.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987). When a question is raised as to the voluntariness of a statement of an accused, the trial court must hold a hearing outside the presence of the jury to determine if the accused made the statement freely and voluntarily. TEX.CODE CRIM.PROC.ANN. art. 38.22, § 6 (Vernon 1979).

The state bears the burden of proof to show that the statement was voluntary. Gentry v. State, 770 S.W.2d 780, 789 (Tex.Crim.App.1988), cert. denied, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1013 (1989). The state must satisfactorily explain the accused's allegations of coercion in order to satisfy its burden of proof. Farr v. State, 519 S.W.2d 876, 880 (Tex.Crim.App.1975). The state need not rebut appellant's assertions; it only needs to controvert them. Muniz v. State, 851 S.W.2d 238, 252 (Tex.Crim.App.1993).

With controverted evidence, the trial court is the sole trier of facts and the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Id.; Jacobs v. State, 787 S.W.2d 397, 400 (Tex.Crim.App.1990); McCoy, 713 S.W.2d at 955. The trial court can reject or accept the witnesses' testimony. Kelly v. State, 621 S.W.2d 176, 179 (Tex.Crim.App.1981). This Court's review of the trial court's findings is limited to a determination of whether the trial court abused its discretion. Id.; Garcia v. State, 829 S.W.2d 830, 833 (Tex.App.--Dallas 1992, pet. ref'd). If the trial court's resolution on the controverted issue of the voluntariness of a confession is supported by the evidence, we will not disturb the trial court's decision. Muniz, 851 S.W.2d at 252.

A. Right to Counsel

Appellant contends that his confession should have been suppressed because of an invalid waiver of his right to counsel. A defendant may waive his Miranda rights provided the waiver is made voluntarily, knowingly, and intelligently. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966)). Only if the totality of circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran, 475 U.S. at 421, 106 S.Ct. at 1141.

The State presented witnesses who testified that police officers, on numerous occasions, warned appellant of his right to counsel and right to remain silent. There is no evidence in the record showing that appellant ever invoked his...