Davila v. State

• Decision Date: 23 September 1999
• Docket Number: No. 11,11
• Citation: 4 S.W.3d 844
• Parties: (Tex.App.-Eastland 1999) JESUS DAVILA, Appellant, v. STATE OF TEXAS, Appellee. -97-00173-CR.
• Court: Texas Court of Appeals

Page 844

4 S.W.3d 844 (Tex.App.-Eastland 1999)

JESUS DAVILA, Appellant, v. STATE OF TEXAS, Appellee.

No. 11 -97-00173-CR.

11TH COURT OF APPEALS EASTLAND, TEXAS.

September 23, 1999.

APPEAL FROM DALLAS COUNTY.

[Copyrighted Material Omitted] Panel consists of: Arnot, C.J., and Wright J., and McCall, J.

OPINION

TERRY McCALL, JUSTICE

The jury convicted appellant of capital murder, and the trial court assessed his punishment at confinement for life. Appellant argues in his first point that the trial court erred in overruling his motion to sever. He argues in his second, third, and fourth points that the trial court erred in admitting his voluntary statement. He argues in his fifth point that the trial court erred in admitting a photograph of the crime scene. Appellant argues in his sixth, seventh, and eighth points that the evidence is legally and factually insufficient to support his conviction and that the evidence is sufficient only to support a conviction for a lesser included offense. We affirm.

Background Facts

The record shows that, early in the morning of October 10, 1996, Robert Nava and Charles Jones were attacked by four men at a bus stop. Two of the men asked Nava and Jones for money, and both offered up their dollar bus fares. The two men then began hitting Jones and Nava. Nava escaped, but Jones did not. One or two more men got out of a pickup and also attacked Jones. He collapsed to the sidewalk and later died from blunt force injuries.

Later, acting on a lead from another case, the police arrested Gilbert Davila and took his statement. Based on that statement, the police questioned appellant and Victor Davila.¹ The police arrested appellant and Victor after they both gave inculpatory statements. The police then arrested Juan Manuel Lopez, who also gave an inculpatory statement. All four men were indicted for capital murder; Gilbert was tried separately.

Motion to Sever

Appellant argues in his first point that the trial court erred in denying his motion to sever. Appellant, Victor, and Juan went to trial together. Appellant moved to sever his case from the others because he could present "evidence to prove to the Court that a trial with any co-defendant would be prejudicial to him, and that under C.C.P. 36.09, the Court should sever this Defendant's cases from all other co-defendants." The trial court must sever a defendant's case if the evidence shows that the defendant's "joint trial would prejudice the other defendant or defendants." TEX. CODE CRIM. PRO. ANN. art. 36.09 (Vernon 1981).

The defendant seeking severance must offer evidence to support his motion. It is not an abuse of discretion for the trial court to deny a motion to sever when no evidence is presented to support the motion. Ransonette v. State, 550 S.W.2d 36 (Tex. Cr. App. 1976).

To obtain a severance based on inconsistent or antagonistic defenses, a defendant must show by offer of proof or otherwise what his defense would be if he were not being tried with his codefendant. Calverley v. State, 511 S.W.2d 60,62 (Tex. Cr. App. 1974), overruled on other grounds, Moosavi v. State, 711 S.W.2d 53 (Tex. Cr. App. 1986). Mere proof of differing degrees of culpability will not support a severance; the codefendants' positions must be "mutually exclusive," so that, if the jury believes one, it must necessarily disbelieve the other. Goode v. State, 740 S.W.2d 453, 455 n. 2 (Tex. Cr. App.1987); Silva v. State, 933 S.W.2d 715, 719 (Tex. App. - San Antonio 1996, no pet'n).

At the severance hearing, appellant presented as evidence only the statements of Victor and Juan. Appellant argued that his defense would be inconsistent with Juan's defense and that a joint trial would prejudice them.² Appellant, however, put on no evidence concerning his defense and no evidence concerning Juan's defense. Even if he had put his own statement into evidence, that alone would not demonstrate how his defense and Juan's defense would be "mutually exclusive." In fact, in both appellant's and Juan's statements, Juan does not leave the pickup during the commission of the offense; he is merely the driver.

Furthermore, appellant's case-in-chief consisted solely of recalling Detective Jesus Alphonso Trevino for cross-examination about the voluntariness of the statement. Neither Victor nor Juan put on a defensive case. The record does not reflect that appellant would have proceeded differently if the trial court had severed his case. The trial court did not abuse its discretion in denying a severance, and we over-rule appellant's first point of error.

Admissibility of Appellant's Statement

Appellant argues in his second, third, and fourth points that the trial court erred in finding that his statement was made voluntarily and in overruling his motion to suppress the statement. He argues that: (1) the statement was the product of an illegal arrest; (2) the warnings that he received were improper; and (3) his statement was not voluntary. Appellant argues that the trial court should have suppressed his statement and should not have admitted it into evidence before the jury. When reviewing the trial court's actions in a suppression hearing, we give complete deference to the trial court's determination of historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Cr. App.1997). We also give deference to the trial court's rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court's actions de novo. Guzman v. State, supra.

No Illegal Arrest

An arrest occurs, for constitutional purposes³, when a reasonable person would have believed he was not free to leave, United States v. Mendenhall, 446 U.S. 544, 554 (1980); Livingston v. State, 739 S.W.2d 311, 327 (Tex. Cr. App.1987), cert. denied, 487 U.S. 1210 (1988). Police may approach a person without reasonable suspicion or probable cause in order to ask questions or ask the person to come with police to answer questions. Florida v. Bostick, 501 U.S. 429 (1991). If a person acts upon the invitation, request, or urging of police officers, rather than their coercion, force, or threat, his acts are voluntary and he is not in custody or under arrest. Livingston v. State, supra. An officer's subjective intent in dealing with a person is irrelevant except to the extent that the officer conveyed his intent to that person. Michigan v. Chestenut, 486 U.S. 567, 575 n. 7 (1988); see Dancy v. State, 728 S.W.2d 772 (Tex. Cr. App. 1987) (defendant who voluntarily accompanied officers to police station was notincustody even though a detective testified that the officers would have used force, if necessary, to secure defendant's compliance).

At the suppression hearing, Detective Trevino testified that he went to appellant's house. He requested that appellant accompany the officers to the police station. Detective Trevino testified that appellant was not a suspect at that point and that the police wanted to question him as a possible witness. Detective Trevino did not place appellant under arrest, nor did he force appellant to go to the station. Detective Trevino stated that, if appellant had refused to go with him, he would have left. Detective Trevino further testified that he did not have enough information to arrest appellant at that point and that he did not consider appellant a suspect at that point.

At the police station, Detective Trevino and appellant talked about appellant's background. Detective Trevino questioned appellant about the offense, and appellant's answers indicated that he was more than a witness. Detective Trevino read appellant his Miranda⁴ rights from a card. Appellant did not invoke any of those rights, and Detective Trevino continued to question appellant about the offense. Appellant finally gave a written and signed "Voluntary Statement" in which he described his participation in the offense.

The trial court as trier of fact, was free to determine the weight and credibility to be given to Detective Trevino's testimony. Nothing in the testimony suggests that appellant was under arrest when he accompanied Detective Trevino to the police station. Appellant did not testify at the hearing; therefore, there was no evidence that appellant thought he was under arrest, believed he was not free to leave, or thought that he could not refuse to go with Detective Trevino. Appellant's statement was not the product of an illegal arrest because he was not under arrest until after he gave his statement. We overrule appellant's second point of error.

No Improper Warnings

A defendant's written statement is inadmissible unless, prior to giving the statement, he received the statutorily prescribed warnings. TEX. CODE CRIM. PRO. ANN. art. 38.22, section 2 (Vernon 1979). The defendant must be warned that any statement he makes may be used against him in trial and in court. Article 3 8.22, section 2(a)(1) and (2). The defendant must make a knowing and voluntary waiver of his rights. Article 38.22, section 2(b). If the defendant receives improper warnings prior to making a statement, that statement is inadmissible per se. Creager v. State, 952 S.W.2d 852, 856 (Tex. Cr. App.1997). If the defendant receives proper warnings, but the interrogating officer later promises him that his statement may be used "for or against" him, that promise becomes a factor for the court to consider when determining the voluntariness of the statement but does not render it inadmissible per se. Creager v. State, supra at 855.

In the present case, Detective Trevino testified that he gave appellant all the statutorily required warnings, both from a Miranda card and from the top of the preprinted "Voluntary Statement" form. The card and the form were admitted into evidence. Appellant's initials appear next to the warnings on top of the statement form. They indicate that ...