Coleman v. State, No. 61979

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: DALLY; W.C. DAVIS
• Citation: 643 S.W.2d 947
• Docket Number: No. 61979
• Decision Date: 22 December 1982
• Parties: Walter Joe COLEMAN aka Mike Garon, Appellant, v. The STATE of Texas, Appellee.

Page 947

643 S.W.2d 947 Walter Joe COLEMAN aka Mike Garon, Appellant,
v.
The STATE of Texas, Appellee. No. 61979. Court of Criminal Appeals of Texas,
En Banc. Dec. 22, 1982.

Page 948

Fred Davis, Bryan, Robert T. Baskett, Dallas, for appellant.

Travis B. Bryan, III, Dist. Atty., Jim James, Asst. Dist. Atty., Bryan, Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of murder. The punishment is imprisonment for fifty years.

The appellant asserts: (1) his written confession was improperly admitted in evidence; (2) exculpatory evidence was suppressed; (3) the court erroneously refused to instruct the jury on specific intent to kill; (4) the court erroneously refused to instruct the jury that the State was bound by exculpatory statements of the appellant it introduced unless disproved; (5) the exculpatory statements were not disproved; (6) the prosecutor made improper jury argument.

In two grounds of error the appellant complains that his written confession was involuntary and was obtained as the result of an unlawful arrest and detention. At trial the court held that the arrest warrant was invalid but that appellant's confession was voluntary and was admissible. The appellant argues that under the holding of Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) the confession should not have been admitted in evidence.

In hearing outside the presence of the jury Officer Yeager of the College Station Police Department testified that at approximately 1:00 a.m. of January 14, 1978, he went to the appellant's residence and placed the appellant under arrest. The appellant was handed the warrant which he read. He was then given his Miranda warnings. On the way to the police station the appellant started to cry and asked if they found the body. Yeager asked appellant to remain quiet and wait to talk about it at the police station. The rest of the way he sobbed and said, "I didn't want to do it" or "he made me do it." Once at the police station the appellant related a story about how "Richard" had killed the deceased. Yeager asked the appellant if he could show the police where the victim and the murder weapon were located. The appellant said yes and he and other officers went to a location along the Navasota River. The weapon was found but the body was not found until later. The appellant stated it was the gun. They returned to the police station and along the way the appellant started to explain what happened. Yeager asked him if he would like to make a written statement. Once at the police station the appellant was again read his warning. He then gave a statement admitting that he shot the deceased. He read over the statement and signed it. The taking of the statement began at 4:23 a.m. and concluded at 6:55 a.m.

The trial court concluded the affidavit that was presented in support of the arrest warrant was insufficient and therefore the arrest was unlawful. The court ruled that certain items seized at the time of the appellant's arrest were inadmissible but concluded the confession was voluntary and admissible.

In the case at bar the appellant was repeatedly given the Miranda warning and he acknowledged that he understood his rights. No evidence of threats or promises was presented. There is ample evidence to support the trial court's conclusion that the appellant's confession was voluntary and we will not disturb its finding. Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980).

However, having determined that the statement was voluntarily given does not end our inquiry. As the Supreme Court stated in Brown v. Illinois, supra:

"Thus, even if the statements in this case were found to be voluntary under

Page 949

the Fifth Amendment, the Fourth Amendment issue remains. In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be 'sufficiently an act of free will to purge the primary taint.' [371 U.S. 471 at 486, 83 S.Ct. 407 at 416, 9 L.Ed.2d 441]. Wong Sun thus mandates consideration of a statement's admissibility in light of the distinct policies and interests of the Fourth Amendment."

In determining whether or not a confession was the result of an unlawful arrest and detention the court identified the following factors which should be considered:

(1) whether Miranda warnings were given;

(2) the temporal proximity of the arrest and the confession;

(3) the presence of intervening circumstances; and particularly

(4) the purpose and flagrancy of the official misconduct.

Brown v. Illinois, supra; Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1978); Taylor v. Alabama, --- U.S. ----, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982).

In the case at bar the appellant had been given the Miranda warnings several times before he actually made his statement. He indicated he understood his rights and waived them. The time period from the arrest until the confession was completed was only about five hours. The only intervening circumstance was the search for the body and weapon. However, in contrast with Brown, Dunaway, and Taylor the police officers in the case at bar had probable cause to arrest the appellant and they were not engaged in purposeful and flagrant official misconduct. Indeed, Officer Yeager interviewed and obtained written statements from various witnesses which he presented before the judge who issued the warrant. The officer also informed the judge about his own observation of the deceased's automobile and what another witness had told him. When the officer made the arrest probable cause existed and he arrested the appellant pursuant to what he believed to be a valid arrest warrant. Additionally, the appellant's initial remarks and other statements were not initiated through interrogation but were spontaneous remarks by the appellant. Finally, as we stated earlier the appellant's confession was voluntarily given. We conclude that the confession was not obtained as a result of his unlawful detention.

The appellant argues that a police officer purposefully failed to give appellant's counsel information as to who was the previous owner of the murder weapon. By so doing, the appellant argues, the defense was misled and harmed. However, we note that Charles Kornegay testified without objection that he sold the appellant the pistol two days before the killing. Indeed, it appears that the prosecutor had completed his examination of the witness before appellant offered any objection. Nothing is presented for review.

Nonetheless, we have reviewed appellant's contention and conclude that no error occurred. Appellant's counsel met with Officer Yeager prior to trial to examine the physical evidence of the case. Counsel questioned Yeager as to the ownership of the murder weapon. Yeager told him the only evidence of ownership was traced to a retailer in Texarkana. Yeager admitted that at the time he knew that Kornegay had sold the weapon to appellant; nevertheless, the appellant has failed to establish the suppression of exculpatory evidence. Kornegay's testimony was "incriminating and the appellant has not shown that he would have gained any exculpatory benefits in the trial of the case from pretrial discovery." Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980), cert. denied 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980). Furthermore, the appellant has failed to demonstrate that these facts were not already known to him or his counsel. Harris v. State, 453 S.W.2d 838 (Tex.Cr.App.1970). Finally, the appellant did not request a postponement or continuance on the basis of surprise, but rather moved to have the testimony stricken and the jury

Page 950

instructed to disregard. The ground of error is overruled.

The appellant also asserts that it was error for the trial court not to charge the jury on the law of specific intent to kill. The appellant did not testify, but in his confession he said he used the pistol as a club when it fired and killed the deceased. The appellant argues that this evidence raises the issue as to whether the appellant had the specific intent to kill. See Hargrove v. State, 501 S.W.2d 878 (Tex.Cr.App.1973). However, the jury was instructed on the law concerning accident. It has been held that a charge on accident is inclusive of the question of intent to kill and a charge on intent to kill is then unnecessary; the appellant's rights were adequately protected by the instructions given. Cain v. State, 549 S.W.2d 707 (Tex.Cr.App.1977); Chevallier v. State, 404 S.W.2d 36 (Tex.Cr.App.1965); Cole v. State, 250 S.W.2d 201 (Tex.Cr.App.1952). The ground of error is overruled.

The appellant contends that the trial court erred when it denied a request to instruct the jury on the law that exculpatory statements introduced by the State must be disproved. He also asserts that the evidence is insufficient to disprove the exculpatory statements.

During the trial the State presented in evidence appellant's entire confession. The appellant admitted he accidentally killed the deceased after the deceased had made homosexual advances. The confession stated in part:

"Before we reached the river Larry handed me a key and asked me to open the glovebox and hand him the gun.

"....

"We got to the river and parked and both got out of the car and walked over to the river bank.

"....

"Larry stepped toward me and reached for my shoulder again, I swung around with my arm hitting the gun knocking it out of his hand to the ground and we both reached for it. I was bending over and had had picked up the gun in my lefthand and...