English v. State

• Decision Date: 09 January 1980
• Docket Number: No. 62778,62778
• Citation: 592 S.W.2d 949
• Parties: Sammie Norman ENGLISH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 949

592 S.W.2d 949

Sammie Norman ENGLISH, Appellant, v. The STATE of Texas, Appellee.

No. 62778.

Court of Criminal Appeals of Texas, En Banc.

Jan. 9, 1980.

Rehearing Denied Feb. 6, 1980.

Robert Montgomery, Pasadena, Tom Stansbury, Allen C. Isbell, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Andy Tobias, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

Appellant complains that his confession was involuntary, the court's charge to the jury was fundamentally defective, and the court improperly set aside its order granting appellant a new trial.

Appellant was arrested in Houston on May 7, 1977, after being stopped on Interstate 45 for a traffic violation. He was initially detained at the Houston Police Department and Jail on suspicion of auto theft. The next day, May 8, appellant was questioned concerning the shooting death of David Harry Samsel, in whose van appellant had been traveling when arrested. Appellant made a written statement confessing the murder of Samsel. Appellant testified at a pretrial Jackson v. Denno hearing that he only confessed in order to stop the physical beatings that he was receiving at the jail and to facilitate the release of his sister and his girlfriend, both of whom had been arrested with him and detained at the jail. After hearing evidence on the matter, the trial court found the confession to be voluntary. The jury reached the same conclusion at trial. On appeal appellant reurges his contention that his confession was involuntary.

According to appellant he was arrested and transported, handcuffed, to the auto theft division at the police station, where he was questioned by Houston police officers concerning the theft of the van. The officers also questioned his companions Aaron Powell and Kyle McGill, his sister Mary Lynn Reynolds, and his girlfriend Wendolin Moseley. Appellant testified that when the officers searched his sister in his presence, he told them to leave her alone. In response one officer named Bryan knocked him down, and several officers beat him. He was subsequently taken to the holding tank, prior to being booked in at the jail.

Upon being taken out of the holding tank appellant was photographed and searched. According to appellant, as he was reaching for his shoes to put them on after the search, an officer kicked him in the hand and hit him in the eye, and then several officers beat him and stood on his neck. They took him to the jail on the fifth floor and placed him in an isolation cell, still handcuffed. Appellant testified that officers came in the cell and beat him for a period of three days. Appellant testified that soon after he was placed in the isolation cell officers came in, beat him, and put a belt around his neck so that his skin was scraped off. After two days of beatings he saw Detective J. L. Bonds, who told him that if he would sign a confession Bonds would keep the officers from beating him. Under appellant's account, he signed the confession to stop the beatings and to get his sister and girlfriend out of jail.

Houston Police Officers D. B. Osterberg and T. L. Maines testified that they arrested appellant at 2:55 a. m. on May 7, 1977. Both testified that appellant was belligerent, used abusive language, and seemed prone to violent conduct. The officers handcuffed appellant and took him to the auto theft division at the police station. There Maines read appellant his rights and questioned appellant regarding the theft of the van. Maines testified that when he questioned appellant's sister, appellant became violent and threatened to "whip his ass." In response Maines told appellant to be quiet and sit down. Maines testified that no physical violence was used against appellant in his presence.

Osterberg testified that appellant was belligerent at the auto theft division, refused to sit down in a chair, and kicked at him when he tried to get appellant to sit down. Officer W. M. Bryan, who assisted Osterberg at the auto theft division, testified at trial that appellant cursed the officers and expressed a desire to fight them. Appellant refused to sit down in a chair and finally was forced by the officers to sit on the floor.

After questioning appellant the officers took him to the holding tank and removed his handcuffs. Appellant was held there before being booked into jail on the fifth floor. Officer L. L. Hillman testified that appellant argued with other prisoners in the holding tank and was uncooperative when the officers searched him before taking him to the fifth floor. Officer W. D. Chapman told appellant to sit down on a bench, but appellant refused and hit Chapman. Hillman and Officers R. Sepolio and David Watkins went to Chapman's aid. They were barely able to restrain appellant, who was a very large man; however, they managed to put him on the elevator and take him to the fifth floor. When the elevator door opened on the fifth floor, appellant lunged forward, breaking free of the officers' grip, and struck his head against a wall. Appellant was forcefully subdued with the additional aid of two fifth floor officers, G. S. Zetsch and D. R. DeVille. All of these officers testified at the Jackson v. Denno hearing, and it is clear from their accounts that appellant was the aggressor in the fight and that it took a great deal of force to subdue appellant. Officer Sepolio suffered a broken hand, and Chapman filed assault charges on appellant. The officers' testimony indicates that appellant received a cut on the right side of his face and suffered some sort of blow to his mouth that caused his lips to bleed and swell.

Appellant was placed, handcuffed, in an isolation cell. Zetsch and DeVille testified that no one bothered appellant during the remainder of their shift until 7:00 a. m.; a jail report reflects that appellant was quiet in the isolation cell at least until 11:00 a. m. that morning.

Dr. Mohammed Sarwar testified at trial that appellant was treated at Ben Taub Hospital at 5:30 in the afternoon on May 7, 1977. The treatment report indicated that appellant's lips were swollen and he had received a laceration near his right eye. His right eye was also bloodshot. Appellant received three stitches for the cut near the eye. Dr. Sarwar testified that the laceration could have been received in a fight. He further testified that he did not notice any bruises or abrasions on appellant's upper body, wrists, or neck.

Detective J. L. Bonds testified that he checked appellant out of jail at 10:00 a. m. on May 8 and took appellant to a magistrate who administered the Miranda warnings to appellant. Bonds then took appellant to the homicide division at the police station and questioned him concerning the death of David Samsel. Bonds testified that he knew appellant had been in a fight with some police officers and had been treated at Ben Taub Hospital. Bonds noticed that appellant's eyes were bloodshot, his right eye was swollen and bandaged, and he had red marks on his neck. Appellant looked to Bonds as though he had been in a fight.

Bonds questioned appellant for one and a half hours, read appellant his rights, and then typed up a confession that appellant signed. Detectives E. F. Uresti and J. M Donovan witnessed the signing of the confession. Bonds testified that no threats or coercive tactics were used to induce appellant to sign the confession. Bonds testified that he and appellant never discussed the alleged beatings, and he never promised to stop any such beatings in exchange for the confession. Appellant requested that no one in the jail "mess with him," but according to Bonds this did not seem important to appellant. Bonds testified that neither he nor anyone in his presence told appellant that appellant's sister or girlfriend would be released if he signed the statement.

Detective Uresti testified that he helped Bonds check appellant out of the jail. Appellant appeared as though he had been in a fight, but he did not complain to the magistrate about any ill treatment. Uresti testified that he did not witness any threats or coercion used against appellant, and the confession appeared to be a product of appellant's free will.

Detective Donovan testified that before appellant signed the statement, he (Donovan) asked appellant whether his injuries had anything to do with the confession. Appellant replied that he had some trouble in the jail and it had nothing to do with his signing the confession.

The trial court filed extensive findings of fact detailing much of what was testified to by the police officers. The court obviously disbelieved appellant's assertions of coercion. It concluded that appellant gave the confession of his own free will, without threats, physical abuse, promises, or other improper influences. The confession was admitted in evidence at trial.

The court is the sole judge of the weight of the testimony and the credibility of the witnesses at a Jackson v. Denno hearing, and may believe or disbelieve all or any part of any witness's testimony. Alonzo v. State, 591 S.W.2d 842; Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978). The evidence in this case sustains the court's findings. Appellant's testimony concerning the beating he received at the auto theft division was contradicted, as was his account of how the fight started at the holding tank. The injuries appellant received in the fight were consistent with those for which appellant was treated on May 7, and which the detectives observed the next day when appellant signed the confession. The doctor who treated appellant did not notice any injuries to appellant's neck, and appellant did not complain of any such injury. Appellant testified that he was beaten in his isolation cell for two days prior to confessing, when he actually confessed the day...