Figueroa v. State

• Decision Date: 30 November 1971
• Docket Number: No. 43970,43970
• Citation: Figueroa v. State, 473 S.W.2d 202 (Tex. Crim. App. 1971)
• Parties: Joe Garcia FIGUEROA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 202

473 S.W.2d 202

Joe Garcia FIGUEROA, Appellant, v. The STATE of Texas, Appellee.

No. 43970.

Court of Criminal Appeals of Texas.

Nov. 30, 1971.

William W. Keas, Jr., Corpus Christi, for appellant.

Wm. B. Mobley, Jr., Dist. Atty. and Thomas D. McDowell, Asst. Dist. Atty., Corpus Christi, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of heroin with the punishment being assessed at 15 years.

The record reflects that on September 16, 1969, Corpus Christi police officers, by virtue of a search warrant, searched appellant's home and took the children to a neighbor's house. The appellant was not home at the time. He and his wife arrived some 30 to 45 minutes later and were placed under arrest and taken into the house. There Sgt. Castro asked the appellant where the heroin was and told him the officers 'were there for the heroin' and that if he did not give it to them they would find it. At this point Castro testified appellant said to his wife 'Tell them.' He was removed from the house and after some persuasion the wife gave to Castro 32 papers of heroin and a syringe which she took from her bra. At the police station after the appellant had given a written confession his wife was released without charges being filed and she returned to their seven children.

In his initial ground of error appellant complains of the admission into evidence over objection of his statement 'Tell them' made while he was under arrest and unwarned of his rights. He relies upon Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311, on remand Tex.Cr.App., 442 S.W.2d 376. In his next two grounds of error he contends the written confession was improperly admitted into evidence since he was not adequately warned; that it resulted from coercion, threats to file charges against his wife, promises to release her if the confession was given; that it was taken while he was still under the improper influences exercised in obtaining the earlier oral statement. He also challenges the sufficiency of the evidence.

We are, however, confronted at the outset with questions which we conclude require review 'in the interest of justice' (Article 40.09, Sec. 13, Vernon's Ann.C.C.P.), and which are dispositive of the appeal before us.

Over objection the search warrant affidavit, the warrant itself and the police officer's return thereon were admitted into evidence and allowed to go to the jury. The recitals therein were hearsay and the instruments were not admissible before the jury for any purpose. Hebert v. State (Tex.Cr.App.1952), 157 Tex.Cr.R. 504, 249 S.W.2d 925; 51 Tex.Jur.2d, Searches and Seizures, Sec. 45, p. 729. Their admission in evidence over objection was error. Gunter v. State (Tex.Cr.App.1928), 109 Tex.Cr.R. 408, 4 S.W.2d 978; Arnold v. State (Tex.Cr.App.1952), 157 Tex.Cr.R. 313, 248 S.W.2d 738. Whether such error calls for reversal must turn on the facts of the particular case. White v. State (Tex.Cr.App.1932), 119 Tex.Cr.R. 338, 45 S.W.2d 225; Hamilton v. State (Tex.Cr.App.1932), 120 Tex.Cr.R. 154, 48 S.W.2d 1005; Booth v. State (Tex.Cr.App.1928), 110 Tex.Cr.R. 548, 9 S.W.2d 1032. Where the hearsay recitals could not have influenced the verdict and the lowest possible penalty was assessed, the error was held not to be of a reversible nature. Williams v. State, 113 Tex.Cr.R. 219, 18 S.W.2d 654. If the receipt of such instruments is obviously harmful, reversal is, however, necessary. Gunter v. State, supra; 51 Tex.Jur.2d, Searches and Seizures, Sec. 53, p. 741.

In the instant case the appellant was convicted for the possession of heroin recovered from his wife at a time when he was not present. The State relied primarily for conviction upon his extrajudicial written confession, a confession which the appellant testified was involuntary and given to secure his wife's release. It would be difficult to say that the introduction of the hearsay recitals in the affidavit to the effect that an unidentified informer had told police officers that the appellant was 'using, keeping and possessing heroin and dispensing heroin to various persons' was not obviously harmful. An officer was also permitted to testify that although the informer had given the name of the 'suspected party' as Guadalupe Figueroa, which name was used in the affidavit, the appellant was one and the same person.

The validity of the search warrant and affidavit were questions of law for the court, and in fact the court had passed upon the validity of the search at a pretrial hearing on a motion to suppress.

The error calls for reversal.

Further, despite the objections urged, we do not find that the trial judge determined the voluntariness of the alleged confession prior to its admission into evidence before the jury as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345; Article 38.22, V.A.C.C.P.

The statute requires a separate hearing to determine voluntariness 'where the question is raised.' In light of the evidence and the repeated objections ¹ the question, in our opinion, was clearly raised. See Harris v. State, Tex.Cr.App., 465 S.W.2d 175.

There are no findings among the papers of this cause. It is not clear if the trial judge decided voluntariness, one way or the other, or if he did, what standard was relied upon. Cf. Boles v. Stevenson, 379 U.S. 43, 85 S.Ct. 174, 13 L.Ed.2d 109. There certainly was no clear cut and reliable determination by the court in the first instant of the voluntariness of the written statement.

Even in absence of statutory requirements, Jackson v. Denno requires that the trial court's conclusion as to voluntariness must, at least, appear from the record with unmistakable clarity. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593.

In Sims v. Georgia, supra, the court said:

'A constitutional rule was laid down in that case (Jackson v. Denno) that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant But it is not for the jury to make the primary determination of voluntariness. * * *' (emphasis supplied) See also Treadway v. State, Tex.Cr.App., 437 S.W.2d 572; Dixon v. State, Tex.Cr.App., 383 S.W.2d 928; Lopez v. State, supra; Harris v. State, Tex.Cr.App., 384 S.W.2d 349; McIlwain v. State, Tex.Cr.App., 402 S.W.2d 916.

Even if it can be argued that the objections made and evidence offered were insufficient to raise the issue of voluntariness, and cause the trial judge to conduct a separate hearing, it is observed that after the appellant testified the voluntariness issue was clearly presented. The court recognized this and charged the jury on such issue permitting them to make the primary and apparently only determination of voluntariness.

In Jackson v. Denno, supra, the court said:

'It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though...