Davis v. State, 2-88-300-CR

• Decision Date: 30 November 1989
• Docket Number: No. 2-88-300-CR,2-88-300-CR
• Citation: 780 S.W.2d 945
• Parties: Gordon Kent DAVIS, Appellant, v. STATE of Texas, State.
• Court: Texas Court of Appeals

Page 945

780 S.W.2d 945

Gordon Kent DAVIS, Appellant, v. STATE of Texas, State.

No. 2-88-300-CR.

Court of Appeals of Texas Fort Worth.

Nov. 30, 1989.

Michael Logan Ware, Law Offices of Rickard & Ware, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., C. Chris Marshall, Ken Dies, Edwin Youngblood, David Ward, Asst. Crim. Dist. Attys., Betty Marshall, Asst. Dist. Atty., Fort Worth, for State.

Before WEAVER, C.J., and JOE SPURLOCK, II and MEYERS, JJ.

OPINION

MEYERS, Justice.

Appellant, Gordon Kent Davis, was convicted of burglary of a building and sentenced to twenty-five years in the Texas Department of Corrections.

For reasons that follow, we affirm the judgment of the trial court.

At about 3:00 a.m. on the morning of Sunday, April 26, 1987, Fort Worth Police Officer Randy Cunningham was on routine patrol on the north side of Fort Worth when his attention was drawn to the parking lot of Trinity Distributors. Two vehicles were parked in the parking lot, one of them a newer model silver Pontiac Fiero, with their doors or hoods open. Two men, both black males of medium build and height, were carrying something in their hands and moving from a broken glass door at the front of the building toward the vehicles. As Cunningham's patrol car entered the parking lot, the two men got into a vehicle and drove off. Officer Cunningham gave chase to the silver Fiero.

Officer Cunningham did not lose sight of the Fiero during the entire chase. The Fiero came to a halt on a dirt mound at the end of a dead-end street where Davis got out and began running across an open field. Officer Cunningham shouted, "Halt. I'm a police officer." He did not lose sight of Davis although it was Officer Stamp, another police officer who had joined in the chase, who first caught up to Davis a couple of hundred yards into the field. Davis stopped, put his hands up in the air and said, "It's cool. You got me," or "You got me."

Davis first complains the trial court committed reversible error by admitting his oral statement made while under arrest as "res gestae" in violation of TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979 and Vernon Supp.1989).

As a general rule, a statement made by an accused during a custodial interrogation before he has been warned of his rights is inadmissible. TEX.CODE CRIM.PROC.ANN. art. 38.22; Smith v. State, 737 S.W.2d 933, 940 (Tex.App.--Dallas 1987, pet. ref'd). Under section 5 of article 38.22, however, this rule does not apply to a statement that is res gestae of the arrest before interrogation or to a statement that does not stem from custodial interrogation:

Sec. 5. Nothing in this article precludes the admission of a statement made by the accused in open court at his trial, before a grand jury, or at an examining trial in compliance with Articles 16.03 and 16.04 of this code, or of a statement that is the res gestae of the arrest or the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.

TEX.CODE CRIM.PROC.ANN. art. 38.22, sec. 5 (emphasis added).

A res gestae statement is a statement made in response to a startling event, spontaneously or impulsively, without time for reflection or contrivance. Smith, 737 S.W.2d at 940. An arrest may be such a startling event. Id.

A volunteered statement, on the other hand, is a statement not made in response to interrogation. Stevens v. State, 671 S.W.2d 517, 520 (Tex.Crim.App.1984) (en banc); Sanchez v. State, 589 S.W.2d 422, 423 (Tex.Crim.App. [Panel Op.] 1979). Interrogation includes both express questioning by the police and its functional equivalent, "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject." Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 1935, 95 L.Ed.2d 458 (1987), citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980); Miffleton v. State, 777 S.W.2d 76, 81-82 (Tex.Crim.App.1989).

In the present case the statement made by Davis upon being apprehended by the police, "It's cool. You got me." was a res gestae statement before interrogation. The statement was made by Davis just before Officer Stamp apprehended him, immediately following a high-speed car chase where Davis had wrecked his car and was attempting to escape on foot.

Since the discovery and chase were startling events, and appellant's statement was clearly immediate and spontaneous, the statement was admissible as a res gestae statement. See Stevens, 671 S.W.2d at 520 (defendant made admissible res gestae statement when arrested while fleeing attempted murder); Denison v. State, 651 S.W.2d 754, 761 (Tex.Crim.App.1983) (en banc) (defendant made admissible res gestae statement when arrested while fleeing burglary); Mills v. State, 747 S.W.2d 818, 822 (Tex.App.--Dallas 1987, no pet.) (defendant made admissible res gestae statement when arrested while fleeing aggravated robbery); Smith, 737 S.W.2d at 940 (defendant made admissible res gestae statement when arrested while about to freebase cocaine); Phillips v. State, 639 S.W.2d 501, 504 (Tex.App.--Fort Worth 1982), pet. ref'd, 651 S.W.2d 745 (Tex.Crim.App.1983) (defendant made admissible res gestae statement when arrested while fleeing burglary).

Davis' statement was also admissible as a volunteered statement. As Officers Cunningham and Stamp chased Davis, neither officer asked him any actual questions. Officer Cunningham identified himself as a police officer and yelled for Davis to stop, but we have not found any cases which stand for the proposition that such an identification or command constitutes interrogation likely to elicit an incriminating response. To the contrary, Officer Cunningham's identification and command would appear to be exactly those words considered "normally attendant to arrest and custody" and therefore not interrogation. See Arizona, 481 U.S. at 525, 107 S.Ct. at 1935; Miffleton, 777 S.W.2d at 81-82.

Since appellant was not expressly or implicitly questioned by Officers Cunningham and Stamp, his statement was volunteered. See Stevens, 671 S.W.2d at 520 (defendant made admissible voluntary statement when in custody but not in response to interrogation); Sanchez, 589 S.W.2d at 423 (defendant made admissible voluntary statement not in response to interrogation or inquiry); Graves v. State, 712 S.W.2d 627, 630 (Tex.App.--Beaumont 1986, no pet.) (defendant made admissible voluntary statement that was unsolicited, not in response to interrogation); Parten v. State, 672 S.W.2d 251, 252 (Tex.App.--Waco 1984, pet. ref'd) (defendant made admissible voluntary statement not in response to interrogation or inquiry).

Since Davis' oral statement was admissible either as a res gestae statement before interrogation or as a volunteered statement, the trial court did not err in admitting it into evidence. Davis' first point of error is overruled.

Davis also argues the trial court erred in failing to grant his motion for mistrial when the prosecutor disregarded the trial court's ruling to provide the police report to defense counsel, which violated Davis' due process right to a fair trial.

Prior to trial, defense counsel filed a discovery motion asking for all official police reports. Davis also submitted a motion asking that the State give him copies of witnesses' statements before direct examination. At the hearing on pretrial motions defense counsel also asked for a copy of the police report. Defense counsel admitted he had seen the report before. The trial court denied the discovery motion but granted the motion asking for written statements before direct examination. The State's lead prosecutor noted that defense counsel previously had an opportunity to read the file on the case and agreed that copies of witnesses' statements would be given defense counsel "just prior to the time that witness takes the stand for direct examination." The trial court agreed and defense counsel made no objection.

At the beginning of the direct examination of Officer Cunningham, defense counsel asked for and received a copy of the officer's report. After receiving a copy of the report, defense counsel extensively cross-examined Officer Cunningham, including a long series of questions on Officer Cunningham's inability to positively identify Davis until the beginning of the foot chase. At the end of the day, the State had not concluded its direct examination of Officer Cunningham.

At the trial the next day, defense counsel made an opening statement to the jury referring to the lack of identification of appellant at the site of the burglary and inconsistencies in the testimony of the police officers. Defense counsel also moved that the trial court grant a mistrial. According to defense counsel, the State had given him a copy of the officer's report at the beginning of direct examination the previous day but defense counsel claimed it was of little value because, "I was left in that dilemma of either reading the report, not listening to the testimony or not reading the report and listening to the testimony." Therefore, he had intended to go over the report overnight to prepare for his cross-examination of Officer Cunningham the next morning.

Instead of taking the report overnight, however, the prosecutor had asked him to give it back. Apparently, defense counsel was told that if he didn't give the report back that the District Attorney's open-file policy would become closed as to him personally. This prosecutor then "stomped out of the courtroom." Another prosecutor acted as "the peacemaker," and defense counsel returned the report. The report was again given back to defense counsel at 8:30 a.m. the following...