Gipson v. State

• Decision Date: 26 June 2002
• Docket Number: No. 10-00-202-CR.,10-00-202-CR.
• Citation: 82 S.W.3d 715
• Parties: Vernon Edward GIPSON, Jr., Appellant. v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

82 S.W.3d 715

Vernon Edward GIPSON, Jr., Appellant. v. The STATE of Texas, Appellee.

No. 10-00-202-CR.

Court of Appeals of Texas, Waco.

June 26, 2002.

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Steve A. Keathley, Keathley & Keathley Corsicana, for Appellant.

Robert W. Gage, Freestone County Attorney, Fairfield, for Appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

A jury convicted Vernon Gipson of murder and sentenced him to 99 years' imprisonment. In five points of error, Gipson argues: 1) the trial court abused its discretion by failing to grant his challenges for cause; 2) the trial court erred in failing to suppress his confession; 3) the trial court erred in failing to suppress evidence procured during a warrantless search of his home; 4) the trial court erred in admitting evidence of extraneous offenses; and 5) the trial court violated his due process rights by shifting the burden of proof on the lesser included charge of manslaughter.

Challenging Jurors for Cause

In point one, Gipson contends that the trial court erred in failing to excuse jurors for cause. Specifically, he contends that jurors challenged for bias were nonetheless empaneled on the jury. The State contends that the complaint was not preserved and, in the alternative, no harm has been shown.

A juror may be challenged for cause if he or she demonstrates a bias or prejudice against the defendant or any facet of the law upon which the defendant is entitled to rely. TEX.CODE CRIM. PROC. ANN. 35.16(c)(2) (Vernon Supp.2002); see also Mooney v. State, 817 S.W.2d 693, 700 (Tex.Crim.App.1991). A trial court's decision to deny a defendant's challenge for cause should not be overturned unless, in light of the entire voir dire examination of the prospective juror, bias or prejudice is established as a matter of law. See Burks v. State, 876 S.W.2d 877, 893 (Tex.Crim. App.1994). We give considerable deference to the trial court's ruling because the court is in the best position to evaluate a venireman's responses and demeanor. See King v. State, 29 S.W.3d 556, 568 (Tex.Crim. App.2000); Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App.1998). Particular deference is given when the potential juror's answers are vacillating, unclear or contradictory. Id. The question of whether a challenge for cause was wrongly denied is subject to an abuse of discretion standard. Id.

The record shows that Gipson's counsel asked the venire if they could remain fair and impartial regardless of whether the State introduced graphic photos of the victim. Several prospective jurors responded to this question, including jurors Spence Bagley, and Roarke. In response, Roarke stated that this kind of evidence "might" cause her to be partial. Juror Bagley stated that the photos "could" cause her to become biased. Finally, Spence stated, "I'm not sure I could go on with the trial and be fair." Gipson's counsel attempted no follow-up questions to elicit more definitive answers from these jurors. The State did not attempt to rehabilitate the jurors. The court denied Gipson's challenges for cause against all three jurors, and they were empaneled on the jury.

Assuming without deciding that Gipson preserved his complaint for review, we find the trial court properly denied his challenges for cause. The jurors in this case used uncertain phrases such as "I'm not sure," "might," and "could" when describing whether they would become partial or biased in light of graphic photographic evidence. The indefinite responses by the three jurors in this case are similar to those at issue in Moore v. State. See 999 S.W.2d 385, 407 (Tex.Crim.App.1999). In Moore, defense counsel challenged a potential juror for cause based on his or her response that "all capital murder[er]s would be — could be — should be committed to the death penalty." Id. The court held that an ambiguous or uncertain statement by a venireman does not unequivocally establish an individual's inability to follow the law. Id. In the present case, no one unequivocally stated that the graphic photos would cause them to be biased against the defendant. Nor do we find that these responses established a clear bias towards the defendant or inability to follow the law. See King, 29 S.W.3d at 568 (deference given to trial court regarding contradicting, unclear, or vacillating responses). Further, we find this case distinguishable from Hernandez v. State, where the prospective juror offered a definitive belief that a police officer would not tell a lie in any case and thus was biased as a matter of law because she was incapable of impartially judging the credibility of the evidence. See 563 S.W.2d 947, 950 (Tex. Crim.App.1978).

The record before us fails to establish a bias as a matter of law. See Smith v. State, 907 S.W.2d 522, 531 (Tex.Crim.App.1995); Burks, 876 S.W.2d at 893. Because the responses were uncertain, it was within the trial court's discretion to overrule the challenges for cause of each of the three jurors. See King, 29 S.W.3d at 568. Accordingly, point one is overruled.

Written Statement

In point two, Gipson asserts that his written statement should not have been admitted because it was the product of police coercion.

When a defendant presents evidence raising a voluntariness question, the prosecution must controvert that evidence and prove voluntariness by a preponderance of the evidence. See State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999) (citing Muniz v. State, 851 S.W.2d 238, 252 (Tex.Crim.App.1993)). However, the prosecution is not put to this burden unless the defendant raises the issue. Id. Further, when the case presents a controverted issue, the trial court acts as the fact-finder, assessing the credibility of the witnesses and the weight to be given to their testimony. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997); Muniz, 851 S.W.2d at 252. If the trial court's resolution of a controverted issue is supported by the record, it should not be disturbed. See Muniz, 851 S.W.2d at 252.

At the hearing on the motion to suppress his statement, Gipson testified that an officer told him "There are no promises, but that [Gipson] would be doing [himself] a favor" by giving a statement to the police. Gipson then signed a written statement indicating his involvement in the victim's death.¹ At the hearing Captain Whitaker and Officer Perez, both present at the time of Gipson's statement, controverted Gipson's testimony and denied that he was ever told that he'd be "doing [himself] a favor" by giving a statement. The trial court denied suppression of the statement. Because the trial court's resolution of the controverted issue is supported by the record, we will not disturb the finding. Id.

Accordingly, point two is overruled.

Fourth Amendment Search

In point three, Gipson argues that the trial court erred in admitting evidence procured during a warrantless search of his home. The State argues that the trial court's suppression of the evidence was proper under 1) the emergency exception to the warrant requirement; or 2) actual or apparent authority to consent to the search.

The purpose of the Fourth Amendment to the United States Constitution is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. See Berger v. New York, 388 U.S. 41, 53, 87 S.Ct. 1873, 1880-81, 18 L.Ed.2d 1040 (1967); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim.App.1976). Warrantless searches and seizures inside a home are presumptively unreasonable. See Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980). This rule is subject to only a few specifically established exceptions. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Kolb, 532 S.W.2d at 89.

Emergency Doctrine

The "emergency doctrine" (also known as the "exigent circumstances doctrine") has been recognized as an exception in very limited situations where an immediate search without a warrant is reasonable because a risk of injury or death would likely be magnified if the search was delayed due to the time involved in obtaining a warrant. See Brimage v. State, 918 S.W.2d 466, 500-01; see also Bray v. State, 597 S.W.2d 763, 764 (Tex.Crim.App.1980). In Mincey v. Arizona, the Supreme Court held that numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. See 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978). Similarly, "when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises." Id. Further, "the police may seize any evidence that is in plain view during the course of their legitimate emergency activities." Id., 437 U.S. at 393, 98 S.Ct. at 2413.

The emergency doctrine has been construed to justify entry into a residence to try to locate an individual who has been reported as missing. See Brimage, 918 S.W.2d at 501 (citations omitted). We use an objective standard of reasonableness in determining whether a warrantless search is justified under the emergency doctrine. See Bray, 597 S.W.2d at 765. This objective standard of reasonableness used in evaluating police conduct takes into account the facts and circumstances known to the police at the time of the warrantless search. See Brimage, 918 S.W.2d at 501. In the instant case, the police had the following information at the time they entered the house:

• The victim's 9 year-old daughter was locked out of the house after school on March 29, 2000. The victim had contacted no one to supervise the child. The child was forced to stay at a neighbor's overnight.

• The victim's mother called the victim's home on the afternoon of ...