Freeman v. State

• Decision Date: 26 November 1986
• Docket Number: No. 632-85,632-85
• Citation: 723 S.W.2d 727
• Parties: Mark Rodney FREEMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 727

723 S.W.2d 727

Mark Rodney FREEMAN, Appellant, v. The STATE of Texas, Appellee.

No. 632-85.

Court of Criminal Appeals of Texas,

En Banc.

Nov. 26, 1986.

Arch C. McColl, III, S. Michael McColloch, David W. Coody, on appeal only, Dallas, for appellant.

Henry Wade, Dist. Atty., Anne B. Wetherholt, Julius Whittier and Terrance Hart, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

A jury convicted appellant of murder and assessed his punishment at fifty years' confinement. The Eastland Court of Appeals affirmed the conviction, holding that appellant's confession was not involuntary because the "promise" he received from police was not conditioned on his giving a confession. The Court of Appeals also found that appellant knowingly and intelligently waived his right to have counsel present during the questioning which resulted in his confession. Freeman v. State, 691 S.W.2d 739 (Tex.App.--Eastland 1985). We granted appellant's petition for discretionary review to consider both issues.

The trial court conducted a pretrial hearing to determine the issue of the voluntariness of appellant's confession. The trial court found that appellant was properly informed of his rights, that no promise or threat was made to appellant, and that appellant freely and voluntarily confessed.

Steven Waddell was murdered by appellant, acting with Waddell's wife, on April 17, 1983, at a Sonic Drive-In in Grand Prairie. Appellant fled to Pulaski, Tennessee, where he was arrested on April 20, 1983. He was arraigned and an attorney was appointed for him. Harroll Lynn Rhoads, an investigator with the Grand Prairie Police Department went to Pulaski on April 21, to speak with appellant.

Rhoads testified that he met with Investigator Richard Jernigan, a member of the Sheriff's Department in Pulaski, and then spoke to appellant at about 6:15 p.m. on April 21. Rhoads informed appellant of his rights. Appellant told him he understood his rights and that he had an attorney. Rhoads explained to appellant that he was investigating Waddell's murder and he knew what had taken place during the offense, including the fact that Waddell had not died right after he was shot. He also told appellant that Waddell's wife had given statements and he asked appellant if he would like to talk about the offense. Rhoads testified that appellant reiterated several times that, although he wanted to talk about the offense, he was too young to die and did not want to get the death penalty. Rhoads showed appellant the murder statute and the capital murder statute in the Texas Penal Code. He read both statutes and explained the differences to appellant. Rhoads testified that when he talked to appellant, based on what he knew about the case, he considered it a murder case not a capital murder case. Appellant then told Rhoads he would like to talk to him but that he wanted to see his attorney.

At that point appellant's attorney, Tom Stack, was contacted. He arrived at the Sheriff's office at about 7:30 p.m. to talk with appellant. Appellant and his attorney conferred for a while, after which Stack asked to speak with Rhoads. Rhoads told him what he knew about the offense and Stack indicated he knew what Rhoads was talking about. Rhoads testified Stack indicated that appellant wanted to talk about the offense but was afraid he would get the death penalty. Rhoads also testified Stack stated that if he could be sure that the police would not file a capital murder case on appellant they could talk about whether or not appellant would make a statement. ¹ Rhoads told Stack he had to talk to his department in Grand Prairie about the matter. Stack said he would like to talk to the District Attorney in Dallas County the next morning and that they could then talk about the statement. Stack also told Rhoads that he had told appellant not to talk to the officers.

Rhoads immediately called Sergeant Dale Phifer of the Grand Prairie Police Department and explained the situation. Phifer told him he would confer with the legal advisors and call Rhoads back. Phifer spoke to Norman Kinne, an assistant district attorney for Dallas County, who told him that based upon the evidence the police related to him, including a statement from Waddell's wife, legally the cases were not capital murders and would not be accepted as such by the district attorney's office. ² Phifer called Rhoads back that same evening and told him it was okay to tell appellant that the police would not file capital murder charges if appellant was the one who had initiated the subject.

Just after Rhoads finished with the phone calls, Jernigan came to Rhoads and said appellant wanted to talk to him. Jernigan brought appellant into the room and Rhoads asked him if he wanted to talk about the offense. Appellant said he did, but that he still had some reservations about the death penalty. Rhoads asked him if he would feel better about it if Rhoads stated in writing that a murder charge would be filed and that a capital offense would not be filed against appellant. Appellant said he would feel better if that were done. Rhoads then executed an affidavit stating that appellant would not be charged with capital murder.

Rhoads testified he hoped that his written affidavit would lead appellant to confess, but that he had no assurance of that. He simply told appellant that he would not be charged with capital murder in response to appellant's concern about the matter. Rhoads also said he repeatedly told appellant that he could have his attorney with him or that he could waive counsel. Appellant indicated he would waive having his attorney present. Appellant then gave a confession admitting his part in killing Waddell.

Rhoads testified that no promises were given to appellant in exchange for his confession and that no bargain was made. Rhoads hoped that assuring appellant that he would not be charged with capital murder would ease appellant's mind so that he would confess. No "bargain" was made. The "promise" not to charge appellant with capital murder was simply an assurance to appellant that under the law and the evidence he would not be charged with capital murder.

Appellant's version of the events leading up to his confession is, not surprisingly, contrary to Rhoads' rendition. Appellant testified that after he conferred with his attorney, Stack told Rhoads that appellant was not going to make a statement and that if he still wanted to make a deal Stack would be back in the morning and would call the district attorney. Appellant also said that after his attorney left Rhoads told appellant that he was leaving the next morning and was going to file capital murder charges and that appellant would not have a choice about it. Appellant said Rhoads called the District Attorney's office while appellant was present and then told appellant he would make an agreement with him. Appellant said the agreement was that he would not be charged with capital murder and in return he would make a statement. Appellant also said he requested that his lawyer be present.

The trial court is the sole judge of the credibility of the witnesses in a pretrial hearing and absent a showing of an abuse of discretion, the trial court's findings will not be disturbed. Hawkins v. State, 613 S.W.2d 720 (Tex.Cr.App.1981); McMahon v. State, 582 S.W.2d 786 (Tex.Cr.App.1979). Obviously, the trial court chose to disbelieve appellant's version of the circumstances surrounding the confession. We find nothing in the record to show an abuse of discretion and we likewise reject appellant's version.

Appellant contends that his statement was inadmissible under the long established rule that:

A confession obtained as a result of a benefit positively being promised to the defendant made or sanctioned by one in authority and of such character as would be likely to influence a defendant to speak untruthfully is not admissible.

Walker v. State, 626 S.W.2d 777, 778 (Tex.Cr.App.1982). See also Hardesty v. State, 667 S.W.2d 130 (Tex.Cr.App.1984); Hawkins v. State, 613 S.W.2d 720 (Tex.Cr.App.1981); Washington v. State, 582 S.W.2d 122 (Tex.Cr.App.1979); Fisher v. State, 379 S.W.2d 900 (Tex.Cr.App.1964); Searcy v. State, 28 Tex.App. 513, 13 S.W. 782 (1890).

The Court of Appeals held that in order to render a confession involuntary the promised benefit to the accused must be a benefit offered in exchange for a statement from the accused. The Court of Appeals noted that the aforementioned cases have all involved conditional promises from the State to the accused whereby the State promises a benefit only "if" the accused gives a statement. In the instant case the "promise" was unconditional. Appellant was told that he would not be charged with capital murder. While Rhoads hoped this would ease appellant's mind so that he would confess, it was not contingent on appellant making a statement. Thus, the Court of Appeals found that no "deal" or "agreement" was made because the assurance not to file a capital murder charge was unconditional.

Appellant argues that his statement was induced by the promise of a benefit--no capital murder charge--and was therefore involuntary under Texas law and constitutional law. We disagree with appellant.

Appellant is correct that a statement induced by a promise of some benefit to a defendant, which promise is positive, made or sanctioned by one in authority, and likely to influence the defendant to speak untruthfully is involuntary. Fisher, supra. The rationale for this rule is the inherent unreliability of a confession if the influence applied was such as to make the defendant believe his condition would be bettered by making a confession, true or false. Searcy, supra.

However, the State is correct that this four part test does not apply in the instant case because no "promise of some benefit" to...