Burruss v. State

• Decision Date: 14 March 2000
• Docket Number: No. 06-99-00039-CR,06-99-00039-CR
• Citation: 20 S.W.3d 179
• Parties: (Tex.App.-Texarkana 2000) LLOYD BURRUSS, Appellant v. THE STATE OF TEXAS, Appellee Date Submitted:
• Court: Texas Court of Appeals

Page 179

20 S.W.3d 179 (Tex.App.-Texarkana 2000)

LLOYD BURRUSS, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-99-00039-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: March 14, 2000

Date Decided: April 27, 2000

On Appeal from the 6th Judicial District Court Red River County, Texas Trial Court No. 177-CR-11-98

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Chief Justice Cornelius

Lloyd Burruss was charged with the aggravated sexual assault of two of his daughters on seven separate occasions, the first occurring on or about March 31, 1996, and the last on or about August 31, 1998. The cases were consolidated and tried together. Burruss pleaded not guilty. A jury found him guilty on all seven counts and assessed punishment at ninety-nine years' imprisonment for each offense. The trial court sentenced Burruss to serve six consecutive ninety-nine-year sentences, and ordered the seventh ninety-nine-year sentence to run concurrently. This appeal involves the first conviction, docketed in this Court as No. 06-99-00039-CR.

The evidence showed that Burruss abused the victims orally, vaginally, and anally on different occasions. On some of the occasions the assaults involved physical violence and were accompanied by threats of injury. Burruss does not challenge the sufficiency of the evidence, but in five points of error he contends that the trial court erred by denying his motion to suppress a statement he made to police, the trial court's voir dire procedure deprived him of a fair and impartial jury, and he was denied effective assistance of counsel at trial. We overrule these points and affirm the judgment.

Burruss first contends that the trial court erred by denying his motion to suppress his statement to law enforcement officers that he had sexually abused his daughters. The trial court held a hearing on the motion to suppress. The testimony at the hearing showed that deputies questioned Burruss after Burruss went to the sheriff's office to inquire about efforts to locate his wife, who had been missing. Burruss was not yet a suspect in his wife's disappearance because the officers did not know whether she disappeared as a result of foul play. The interview took place at the sheriff's office, and at various times Deputy Larry Spangler, Deputy John Grantham, and Constable Tim Shimpock were in the room.

Spangler testified that he orally gave Burruss Miranda¹ warnings at the beginning of the interview as a precaution, because he was not sure at the time whether Burruss would be a witness or a suspect. Burruss signed a printed waiver form indicating that he understood his rights and waived them. Spangler testified that he did not indicate on the form any charge against Burruss because at the time there was no charge. The officers made an audiotape of the interview.

The interview lasted about two hours without any break. Near the end, Shimpock left the room to take a telephone call. Spangler testified that he concluded the interview at that time, and Burruss voluntarily left the office and went outside, where he stopped and smoked a cigarette. After receiving word from Shimpock minutes later, Spangler sent Grantham to recall Burruss. Spangler testified that the interlude lasted approximately three minutes. Shimpock testified that the telephone call he received was an anonymous tip that Burruss had been having sexual relations with his children. Spangler testified that Shimpock told him that he needed to ask Burruss about molesting his children.

Spangler testified that when Burruss returned, he asked him, "Did you have sex with your children?" Burruss replied, "Yes." Spangler then asked, "You're telling me after I read your Miranda warnings to you and you understood them, that you had sex?" Burruss then responded, "Not like you're saying." Spangler then asked Burruss what he meant, and Burruss replied that he had put his finger in the girls one time, but he was sorry. Spangler said Burruss then "talked on about some more stuff." Spangler then asked Burruss to give a written statement, but at that point Burruss invoked his Miranda rights and refused.

The trial court suppressed the audiotape recording with the agreement of the prosecutor, but admitted Burruss' oral statement that he had sexual contact with his daughters.²

Burruss contends that his statement should have been excluded because he was not given his Miranda rights again after the interview resumed. He contends that the warnings and waiver from the beginning of the interview about a missing person do not extend to questions asked two hours later about a different issue after officers had already concluded the interview.

At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Our review is limited to determining whether the court abused its discretion. The general rule is that an appellate court should afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. We are also to afford such deference to a trial court's ruling on "application of law to fact questions," also known as "mixed questions of law and fact," if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. We may review de novo those questions not turning on credibility and demeanor. Id.

U.S. Const. amend. V and Tex. Const. art. I, § 10 protect individuals from compelled self-incrimination. These rights are enforced for federal constitutional purposes by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and for state law purposes by Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Supp. 2000). See Jones v. State, 944 S.W.2d 642, 650 n.11 (Tex. Crim. App. 1996); Alvarado v. State, 853 S.W.2d 17, 20 (Tex. Crim. App. 1993). Both Miranda and Article 38.22 apply only to statements made as a result of custodial interrogation. Rodriguez v. State, 939 S.W.2d 211, 215 (Tex. App.-Austin 1997, no pet.).

Arguably, Burruss' initial "yes" to Spangler's question was not the product of custodial interrogation. Under an objective standard, Burruss was not in custody. See Stansbury v. California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Burruss returned voluntarily to answer Spangler's question, and the police did not have probable cause to arrest him until after he answered affirmatively. Moreover, Burruss did not contend at trial and does not contend on appeal that the statement should have been excluded because it was not taken in accordance with Article 38.22, but only that it was inadmissible because he was not given his Miranda warnings again. The State contends simply that the Miranda warnings given at the beginning of the interview were sufficient to inform Burruss of his rights and that his waiver of those rights was effective to render the statement admissible. We agree.

In Stiles v. State, 927 S.W.2d 723, 729 (Tex. App.-Waco 1996, no pet.), the court held that "[w]hether or not law enforcement officials subsequently read the warnings . . . again each time he was interrogated is irrelevant." That case involved a defendant who was twice read his rights when arrested, refused to talk, later reinitiated the conversation, and was reminded of but not reread his rights before making each of two statements. Id. at 728-29.

In Franks v. State, 712 S.W.2d 858, 860 (Tex. App.-Houston [1st Dist.] 1986, pet. ref'd), the court held the defendant's statements admissible where police began interrogating him, interrupted their interrogation for three and one-half hours, and then took his statement without rereading him his rights. The police did remind the defendant that he had previously been read his rights. Id. at 861.

In Flemming v. State, 949 S.W.2d 876, 879-80 (Tex. App.-Houston [14th Dist.] 1997, no pet.), the court held the defendant's statements admissible even though the officer failed to reread the defendant his rights after resuming the interrogation, but reminded him that his rights had been read previously. The court found that a magistrate had read the defendant his rights after his arrest, and the police officer had warned him again before beginning the initial interrogation. Id. at 878.

Spangler warned Burruss of his rights at the beginning of the interview. Burruss signed a written waiver of his rights. The questioning broke off, but resumed three minutes later. Burruss indicated that he understood he had been read his rights. Burruss invoked his right to counsel when he terminated the interrogation, indicating that he remembered the warnings and understood them. In these circumstances, the second phase of the questioning was merely a continuation of the interrogation process, and there was not such a break in the interrogation that required the giving of new warnings. See Dunn v. State, 721 S.W.2d 325, 338 (Tex. Crim. App. 1986). In this situation, the warnings were sufficient.

The fact that police interviewed Burruss about a different subject is of no consequence. As the Court of Criminal Appeals said in Dunn:

Neither our constitutional nor statutory law requires that a defendant be rewarned where there is a transition from questioning him regarding one offense to questioning him regarding another offense, nor have we found any requirement in our law that the Miranda warnings must be limited to any specific unlawful conduct, nor do we know of any reason which requires that it be so limited, considering the purpose of the Miranda rule.

Dunn v. State, 721 S.W.2d at 338. The trial court did not abuse its discretion in refusing to suppress Burruss' statement.

In his third and fourth points of error, Burruss contends that the trial...