Garcia v. State, No. 59621

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtW. C. DAVIS; ROBERTS; PHILLIPS
Citation581 S.W.2d 168
PartiesMoses Lopez GARCIA, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 59621
Decision Date11 April 1979

Page 168

581 S.W.2d 168
Moses Lopez GARCIA, Appellant,
v.
The STATE of Texas, Appellee.
No. 59621.
Court of Criminal Appeals of Texas, En Banc.
April 11, 1979.
Rehearing Denied June 6, 1979.

Page 170

Marvin O. Teague, Houston, for appellant.

Carol S. Vance, Dist. Atty., Michael C. Kuhn, Ron G. Woods, and R. P. Cornelius, Asst. Dist. Attys., Houston, and Robert Huttash, State's Atty., Austin, for the State.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. The jury answered affirmatively the special issues submitted under Article 37.071, Vernon's Ann.C.C.P., and accordingly, the punishment was assessed at death.

The sufficiency of the evidence at either the guilt-innocence or punishment phases of the trial is not challenged. The record reflects that in the early morning hours of September 26, 1974, appellant and Larry Johns entered a 7-11 convenience store in Houston. Connie Wilson and the deceased, David Lewis, were store attendants, working the night shift. The record further reflects that appellant threatened the two

Page 171

store attendants with a gun, and took them to a back storeroom where he forced them to lie face down on the floor. During this time, Larry Johns emptied the cash register. Just before appellant and Johns left the store, appellant fired two shots at the store attendants as they lay on the floor; one shot struck the deceased in the head, causing his death, and the other shot went into a door just above Wilson's head. During the course of the robbery, John Harold, the night supervisor for the 7-11, entered the store and was also threatened with a pistol by appellant.

Appellant did not testify in his own behalf at either phase of the trial.

In his first ground of error, appellant contends that the trial court erred in failing to grant his motion to suppress. Appellant filed his motion to suppress a written confession and an oral statement, both made by him while in police custody. After a hearing, the trial court denied the motion and ruled both admissible. However, the record reflects that neither the written or the oral statement was offered into evidence by the State at trial. Therefore, we must assume that appellant now complains of the admission into evidence of a pistol which was found as a result of the oral statement made by appellant.

The record reflects that shortly after the offense was committed appellant and Larry Johns returned to their apartments, gathered together their possessions and left in appellant's car with Cindy Doris, Johns' girl friend. Doris testified that they were heading north to appellant's sister's house in Michigan or Minnesota.

At the hearing on the motion to suppress, Department of Public Safety Trooper Howard Alexander testified that he received a report of an automobile accident in Ellis County at about 9:50 a. m. on September 26th. He arrived at the scene a short time later and found appellant, Johns and Doris at the scene of this one-car accident. He testified that he asked who had been driving the car, to which appellant responded that he had been. Alexander stated that both appellant and Johns appeared to be intoxicated at the scene. The three were taken to the nearby Ennis hospital. At the hospital, Alexander asked appellant whether he would submit to a blood test, which appellant did. Alexander testified that when appellant learned that he might be arrested for DWI he told the officer that he was not driving after all. At this time Johns admitted driving, and stated that he did not have a driver's license.

Officer Alexander left the hospital and returned to his office to make a report. He then went to a wrecker yard in Ferris, where the wrecked car had been towed, and searched part of the contents of the automobile. He stated that he and Ferris Police Chief Matthews found a baggie of marihuana inside a partially open suitcase in the car. They also observed radios, stereo receivers, stereo speakers and assorted other items in the back of the wrecked station wagon. Alexander then returned to his office where he issued citations to appellant for the offenses of possession of marihuana and permitting an unlicensed driver to operate a motor vehicle. Alexander testified that at this time he gave appellant his full Miranda 1 warnings and then placed him in the Ennis jail.

Wayne McCollum, Sheriff of Ellis County, testified that appellant was in his custody on September 27th. He stated that his records reflected that appellant had been taken before a magistrate at 8:30 a. m. on that date. Sheriff McCollum testified that his office had received a teletype from Houston placing a "hold" on appellant. He stated:

"A. We got a teletype from Houston placing a hold on the young man and I just asked him did he know what the hold was for and he said for armed robbery and then something about the wreck. And he told me that that his gun was hid in some grass there where the car had the accident.

"Q. (Defense counsel): He told you that without any prompting from you?

Page 172

"A. I had no idea knowing anything about it.

"Q. You merely asked him what the hold was for when you got the message?

"A. That's right.

"Q. And he said it was for armed robbery and 'I'll show you where the gun is'?

"A. Yes, sir.

"Q. Did you ask him any questions?

"A. Then I took him before the Justice of the Peace, had him arraigned again.

"Q. Sir, I asked you did you ask him any questions?

"A. Oh, I couldn't recall offhand whether it was just a conversation in the jail.

"Q. Did he volunteer any other information to you that you recall?

"A. Not that I recall, sir."

Sheriff McCollum testified that he immediately took appellant before a magistrate, where appellant was arraigned again. Appellant then led the sheriff and a deputy to the site of the automobile accident where the pistol had been left.

Upon examination by the State, the prosecutor asked Sheriff McCollum:

"Q. Where was the weapon found?

"A. In some weeds down in a ditch embankment.

"Q. Did the defendant show you where it was?

"A. Yes, sir.

"Q. Did you have any idea where it was before then?

"A. I didn't even know where the automobile had the wreck.

"Q. Do (sic) you know that there was a weapon before this defendant told you?

"A. No, sir, I had no idea."

At no time did appellant present any evidence whatsoever to controvert the testimony by the witnesses on this matter.

Appellant now appears to contend that his oral statement to Sheriff McCollum was inadmissible and that, as a result, the fruits of that statement, i. e., the pistol, were also inadmissible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We hold that appellant's oral statement to Sheriff McCollum was admissible at trial and was not involuntary nor taken in violation of Miranda ; therefore, the pistol obtained as a result of it was properly admitted.

Article 38.22, 1(e), Vernon's Ann.C.C.P., in effect at the time of trial, provided that:

"1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if:

"(e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed." 2

However, in spite of the language of our statute, it is clear that before Any statement by the accused, made while in custody and as a result of interrogation, is admissible against the accused, then it must be shown to have been voluntarily made, and taken in compliance of Miranda v. Arizona, supra. As we stated in Ochoa v. State, 573 S.W.2d 796 (Tex.Cr.App.1978):

"A confession, in order to meet constitutional standards, must be both voluntary and taken in compliance with Miranda.

Page 173

If it meets one requirement but not the other, it is still inadmissible. Miranda imposes rigid requirements in order to insure the voluntariness of a confession, and these requirements must themselves be satisfied in order for a confession to be admissible."

If we assume that appellant's statement to Sheriff McCollum was a confession, and if we assume, without so holding, that the statement was made in response to custodial interrogation, we nevertheless hold it admissible.

The voluntariness of the statement is demonstrated by the fact that the evidence shows that appellant volunteered the information about the pistol; it is uncontroverted that a statement from appellant concerning any details of the offense for which the "hold" was placed on him, was completely unsolicited by the sheriff. Further, once he made the statement about the pistol and its location, appellant was again taken before a magistrate where he was, for the third time, advised of his rights in relation to a criminal charge. After being so warned, appellant persisted in his desire to show the officers the location of the pistol. Thus, from a totality of the circumstances, we conclude that appellant's statement was voluntarily made. See Article 38.21, Vernon's Ann.C.C.P.; see Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977).

Further, in compliance with Miranda v. Arizona, supra, appellant had been warned of his right against self-incrimination and his right to counsel, once prior to his incarceration less than twenty-four hours before he made the statement, and once less than an hour before he volunteered the statement to Sheriff McCollum. Further, immediately after he made the statement, he was again taken before a magistrate and again warned of his rights as to that offense. Therefore, after being given his Miranda warnings three times in close proximity, appellant nevertheless persisted in taking the officers to the location of the pistol. Under the totality of these circumstances, it is clear that appellant knowingly and voluntarily waived the...

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55 practice notes
  • Smith v. State, No. 64412
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 11 Julio 1984
    ...Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981), cert. den. 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876. See also Garcia v. State, 581 S.W.2d 168 In Green v. State, 587 S.W.2d 167 (Tex.Cr.App.1979), it was held under Article 37.071, supra, that it was within the discretion of the cour......
  • O'Bryan v. State, No. 59731
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 26 Septiembre 1979
    ...to carry out his scheme. These extraneous offenses were certainly probative of his propensity to commit future acts. See Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979); Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979); see also, Gholson and Ross v. State, 542 S.W.2d 395 (Tex.Cr.App.197......
  • Allridge v. State, No. 69592
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 11 Mayo 1988
    ...Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981), cert. den. 455 U.S. 1008 [102 S.Ct. 1646, 71 L.Ed.2d 876]. See also Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979)." See also Briddle, supra, at The trial court at the penalty stage of a capital murder trial therefore has wide dis......
  • Smith v. State, No. 68906
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 19 Septiembre 1984
    ...Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1982), cert. den. 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876. See also Garcia v. State, 581 S.W.2d 168 The grounds of error are overruled. In appellant's tenth ground of error, he alleges that the trial court erred in overruling his objection......
  • Request a trial to view additional results
55 cases
  • Smith v. State, No. 64412
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 11 Julio 1984
    ...Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981), cert. den. 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876. See also Garcia v. State, 581 S.W.2d 168 In Green v. State, 587 S.W.2d 167 (Tex.Cr.App.1979), it was held under Article 37.071, supra, that it was within the discretion of the cour......
  • O'Bryan v. State, No. 59731
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 26 Septiembre 1979
    ...to carry out his scheme. These extraneous offenses were certainly probative of his propensity to commit future acts. See Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979); Hammett v. State, 578 S.W.2d 699 (Tex.Cr.App.1979); see also, Gholson and Ross v. State, 542 S.W.2d 395 (Tex.Cr.App.197......
  • Allridge v. State, No. 69592
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 11 Mayo 1988
    ...Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981), cert. den. 455 U.S. 1008 [102 S.Ct. 1646, 71 L.Ed.2d 876]. See also Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979)." See also Briddle, supra, at The trial court at the penalty stage of a capital murder trial therefore has wide dis......
  • Smith v. State, No. 68906
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 19 Septiembre 1984
    ...Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1982), cert. den. 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876. See also Garcia v. State, 581 S.W.2d 168 The grounds of error are overruled. In appellant's tenth ground of error, he alleges that the trial court erred in overruling his objection......
  • Request a trial to view additional results

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