Clifton v. State, 2-87-136-CR

• Decision Date: 18 August 1988
• Docket Number: No. 2-87-136-CR,2-87-136-CR
• Citation: 755 S.W.2d 556
• Parties: Randy Allen CLIFTON, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 556

755 S.W.2d 556

Randy Allen CLIFTON, Appellant, v. The STATE of Texas, State.

No. 2-87-136-CR.

Court of Appeals of Texas Fort Worth.

Aug. 18, 1988.

Lollar, Phillips & Factor, P.C. and Abe Factor, Fort Worth, for appellant.

Tim Curry, Criminal Dist. Atty., and Cindy Singleton, Asst. Criminal Dist. Atty., Fort Worth, for appellee.

Before BURDOCK, JOE SPURLOCK, II and KELTNER, JJ.

OPINION

BURDOCK, Justice.

Appellant, Randy Allen Clifton, brings this appeal from his conviction for the unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. art. 31.03 (Vernon Supp.1988). The appellant was found guilty by a jury and his punishment, enhanced by two prior felony convictions, was assessed by the court at thirty-five years confinement in the Texas Department of Corrections. The appellant challenges the validity of his conviction in four points of error.

Affirmed.

On September 12, 1986, Hugh Shelton parked his blue Chevrolet Caprice at a convenience store on the corner of Lancaster and Beach streets in Fort Worth. Shelton left the car running while he was making a phone call from a booth on the outside of the store. While speaking on the phone, Shelton turned around to find that his car had disappeared. He looked for the car for a few moments and then called the police. A woman in the convenience store knew who the appellant was and had observed him taking the car. She gave a description of him to the police after they arrived.

About forty minutes after Shelton's car was stolen, Officer John Campbell of the Fort Worth Police received a dispatch to go to a certain address and see if a 1984 blue Chevrolet Caprice with Louisiana license plates was parked there. Officer Campbell was informed that the vehicle had been stolen.

Campbell arrived at the location and saw the Caprice parked there. A few minutes later, Campbell saw the appellant and another person get into the car and drive away. Campbell then stopped the car and placed the appellant under arrest.

In his first point of error, the appellant asserts that the trial court erred in denying his pretrial motion to suppress. According to the appellant, his confession and any other evidence gained as a result of his arrest should have been suppressed because the arrest was without probable cause. We find the appellant's contention to be without merit.

Police broadcasts that report a felony and give a description of the perpetrator or vehicle satisfy the requirements for a warrantless arrest when they are based upon probable cause. See Brooks v. State, 707 S.W.2d 703 (Tex.App.--Houston [1st Dist.] 1986, pet.ref'd). Where a police officer receives information from his dispatcher that a vehicle is stolen, sufficient probable cause exists to make a stop of that vehicle. See Kelly v. State, 721 S.W.2d 586 (Tex.App.--Houston [1st Dist.] 1986, no pet.). Here, Officer Campbell made his arrest of the appellant after a police dispatcher informed him that a certain car believed to be stolen might be found at a specific address. Thus, Officer Campbell had sufficient probable cause to stop the car and make the arrest. The appellant's first point of error is overruled.

In his second point of error, the appellant asserts that his confession should not have been admitted at his trial because it was not in compliance with the laws pertaining to written statements made by an accused. The appellant contends that he lacked sufficient intellect to understand the nature of his confession, and thus, the statement was rendered inadmissible.

Article 38.22 of the Texas Code of Criminal Procedure provides in relevant part:

Sec. 2 No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

See TEX.CODE CRIM.PROC.ANN. art. 38.22(2)(b) (Vernon 1979). Clearly, it is incumbent that the accused possess a sufficient mental capacity to make a knowing and intelligent waiver of his rights before his statements may be used against him. See Massengale v. State, 710 S.W.2d 594, 596 (Tex.Crim.App.1986).

On appeal, challenges to a trial court's ruling regarding the voluntariness of a confession generally should be directed to whether the court abused its discretion in one of the findings or whether the court properly applied the law to the facts. Sinegal v. State, 582 S.W.2d 135, 137 (Tex.Crim.App. [Panel Op.] 1979). In reviewing the trial court's findings, it must be remembered that at the hearing to determine the voluntariness of a confession, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony and as such, he may believe or disbelieve all or any part of any witness' testimony. See Hawkins v. State, 660 S.W.2d 65, 72 (Tex.Crim.App.1983); English v. State, 592 S.W.2d 949, 952 (Tex.Crim.App.1980).

The determination of whether a confession is voluntary under the law must be based upon an examination of the totality of the circumstances surrounding its acquisition. See Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App.1985). Any claims concerning mental incapacity to make a knowing and intelligent waiver of rights is also a question for the trial court. See White v. State, 591 S.W.2d 851, 860 (Tex.Crim.App.1980).

Following the pretrial suppression hearing, the trial judge made the following findings in regard to his determination that the appellant's confession was admissible:

The Court finds that there was probable cause for the arrest of the Defendant.

[The] court finds that the Defendant was in custody and that while he was in custody, he received his Miranda warnings and his warning under Article 38.22 from Detective Reed and from Judge Hollifield.

The Court finds that the Defendant was advised of all of his rights as required by Article 38.22; that the Defendant understood those rights and voluntarily waived his right to remain silent and agreed to make a statement.

The Court finds that the Defendant signed the statement after Detective Reed had read the statement to him, and that the Defendant was not under any coercion nor was he under any threat.

The Court further finds that the statement was not compelled by any promise of leniency.

For those reasons, the Court will deny the Defendant's Motion to Suppress the Confession.

We will therefore review the record to determine whether the trial court had sufficient evidence before it to make its findings and thus further determine whether the court abused its discretion in holding that the statement was admissible.

Both the appellant and the interrogating officer testified at the suppression hearing. No other witnesses were called. Detective T.W. Reed was first called to the stand. He stated that he had been assigned to the auto theft division of the Fort Worth Police Department for eighteen months. On September 15, 1986, the day following the appellant's arrest, Detective Reed approached the appellant in jail and asked if he would be willing to give a statement. The appellant agreed and was escorted to Reed's desk. At this point, the appellant was read his Miranda rights and then signed the warning sheet in the appropriate place.

Reed testified that after a short discussion, the appellant orally confessed to stealing the car. The appellant was asked if he would be willing to put the confession in writing or on paper, and the appellant agreed. The appellant made the confession to Reed's secretary, who typed it as he spoke. Appellant then signed the statement. Reed stated that before the appellant signed the confession, he appeared to be reading it. According to Reed, the appellant held the statement "in his hands and his eyes moved across the page." After the appellant finished reading the statement, he was asked if it was true and correct, to which he replied in the affirmative. Reed asserted that it was at this time that the appellant signed the statement. Reed further testified that before the statement was made, the appellant answered affirmatively when asked if he could read the English language.

The appellant was next called to the stand. He stated that he was twenty-two years old and had gone as far as the eighth grade before dropping out of school. The appellant testified that he was in special education classes while in school and that he could not read or write. The appellant was handed a copy of his statement and asked to read from it. He purportedly could only read the first line, which contained his name, age and address.

The appellant further stated that Detective Reed had read the statement back to him after he had signed it. When portions of the confession were read to him while he was on the stand, the appellant disagreed with some of the factual statements contained therein. The appellant disavowed the portion of the confession where he claimed to have completed the tenth grade, asserting that he had only advanced to the eighth grade before quitting school. The appellant also disagreed with the wording of the confession. He admitted going through the inside of the car looking for valuables, but denied using the term "searched" to describe his actions.

During the cross-examination of the appellant, he was asked several times whether he had been advised about his rights against self-incrimination. The appellant stated that the arresting officer, the magistrate and Detective Reed had all given him his Miranda warnings and that he understood their meaning. According to the appellant, he knew he did not have to make a statement but did so regardless of that fact.

When further questioned about the contents of his statement, the appellant responded that the statement about taking the car was true, but he...