Gutierrez v. State, 46904

• Decision Date: 19 December 1973
• Docket Number: No. 46904,46904
• Parties: David GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 746

502 S.W.2d 746

David GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.

No. 46904.

Court of Criminal Appeals of Texas.

Dec. 19, 1973.

James H. Pearl, James L. Anderson, Jr., San Antonio, for appellant.

Ted Butler, Dist. Atty., Fred Rodriguez, Gus Wilcox and Michael P. Hodge, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The appellant was convicted of the offense of murder with malice. The jury assessed his punishment at twelve years' imprisonment.

Appellant's grounds of error numbers one through seven relate to the admission and voluntariness of his confession. A pre-trial hearing was held on appellant's motion to suppress this confession, at which some ten witnesses testified and several exhibits were introduced.

The evidence adduced at the pre-trial hearing reflects that appellant was arrested about 3:00 a.m., on September 23, 1971. The arresting officers, two plainclothes detectives, observed appellant apparently attempting to hide from a patrolling police car. Upon approaching appellant in order to investigate, they observed that appellant's eyes were bloodshot, that he was unsteady on his feet, that his speech was slurred, and that he smelled strongly of alcohol. They testified that they immediately placed the appellant under arrest for being drunk in a public place, and that it was only after this that they learned, from his identification, his name, and realized that he was wanted for questioning in connection with the murder. Appellant was taken to the county jail 'drunk tank' and held there from 4:00 a.m. until 9:00 a.m., at which time he was taken to the homicide division of the police department for interrogation. The officer who took appellant's confession testified that he read appellant a Miranda-type warning before beginning his interrogation and that he also read appellant the warnings printed upon the form on which his statement was typed. The officer also testified that appellant told him he understood the warnings and would tell what he knew about the killing. A clerk-typist who witnessed appellants' signing of the statement testified that he appeared to read and understand it before he signed. The evidence reflects that the interrogation lasted about forty-five minutes.

The appellant, testifying for the purpose of the hearing on the motion to suppress, stated that he was not arrested until after the officers learned, from a report they carried, that he was wanted for questioning; that he was never given any warnings by the arresting officers (which they admitted); that he was never given any warnings during the interrogation; that he was ill during the interrogation (defense counsel insisted that this was heroin withdrawal, although appellant never stated that his illness, if any, was a result of this); that he had not read the confession; and that he signed the confession only because the officers promised that he would be taken to a hospital if he did so.

The interrogating officer testified that appellant 'looked like he had been on a pretty good drunk,' but that he did not appear to be sick. The witness to appellant's signing of the statement testified that he only looked 'sad.'

In his written findings of fact and conclusions of law, the court found that although appellant was not taken before a magistrate in connection with his arrest for drunkenness (see Art. 15.17, Vernon's Ann.C.C.P.), he was properly warned twice before he gave and signed his confession. The court also found that the statement was voluntarily made and was not the result of illness, or of threats or promises made to the appellant.

The record from the pre-trial hearing is lengthy, and contains ample evidence to support the findings of the trial court, who, as trier of fact, was free to disbelieve appellant's testimony. See Chivers v. State, 481 S.W.2d 125 (Tex.Cr.App.1972). There was sufficient evidence for the court to conclude that the arrest of appellant was legal, and not a pretext to retain him for questioning; that appellant was capable of and did make an intelligent waiver; that the warnings given were adequate to protect appellant's rights; and that the confession was not obtained by means of a 'third-degree' interrogation. That appellant was not taken before a magistrate for warnings is not such error as to require reversal in this case. See Genter v. State,473 S.W.2d 35 (Tex.Cr.App.1971); Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App.1971).

Appellant's eighth ground of error urges that the trial court granted him inadequate discovery. The argument in support of this ground of error is extremely broad and appears to be a general complaint about the restrictiveness of Texas criminal discovery procedure. However, it appears that appellant is complaining of the court's failure to grant him discovery of some investigation reports made by a detective Gomez, who worked on the case but died before it came to trial.

The record reflects that the trial judge agreed to make an In camera inspection of these reports, in order to determine whether they contained information which might assist in the determination of the voluntariness of appellant's confession (which appears to be the sole basis of appellant's request for these reports at the pre-trial hearing). The court determined that the reports contained no information which would be helpful on the issue and denied appellant's request. However, the court ordered that the reports be included in the record on this appeal. We have examined these reports and agree that they contain no information which would have been helpful on the determination of whether appellant's confession was voluntarily made. See Ward v. State, 474 S.W.2d 471 (Tex.Cr.App.1971). Additionally, in view of the facts surrounding these...