Jacobs v. State

• Decision Date: 11 April 1990
• Docket Number: No. 69864,69864
• Parties: Jesse Dewayne JACOBS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 397

787 S.W.2d 397

Jesse Dewayne JACOBS, Appellant, v. The STATE of Texas, Appellee.

No. 69864.

Court of Criminal Appeals of Texas,

En Banc.

April 11, 1990.

John D. Mac Donald, II, New Caney, F. Vincent Norris, Conroe, for appellant.

Peter C. Speers, III, Dist. Atty., and Thomas D. Glenn, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Presiding Judge.

A jury found appellant, Jesse Dewayne Jacobs, guilty of capital murder. The death penalty was assessed as punishment. On appeal to this Court, appellant raises twelve points of error. We find all points to be without merit and affirm the conviction.

In his first point of error, appellant asserts that the trial court erred in overruling his motion to suppress his confessions based on involuntariness.

The facts of this case reveal that appellant offered to make a deal with the authorities regarding information about the murder of the deceased, Etta Urdiales. Testimony by the arresting officers revealed that appellant offered to "tell us what we wanted to know and show us what we wanted to see" in exchange for certain assurances. Appellant requested that (1) the district attorney seek the death penalty and (2) allow a one hour visit alone with his girlfriend Lisa.

In Fisher v. State, 379 S.W.2d 900 (Tex.Cr.App.1964), this Court stated its position on the proper test to be applied when determining whether a confession was improperly obtained through inducement. The Court held:

"To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority and it must also be of such character as would be likely to influence the defendant to speak untruthfully." 379 S.W.2d 902, citing 1 Branch 2d. Sec. 88.1 at 95.

Before applying the Fisher test to each of the purported inducements we note that appellant approached the State for assurances that certain conditions be met before he would make inculpatory statements or lead investigators to the deceased's body. Because appellant acted in the role of dealmaker our analysis is cast in a different light. Caselaw in this area has generally reflected fact situations where the State stood accused of soliciting confessions in exchange for promises of leniency or special deals. See Smith v. State, 779 S.W.2d 417, 427 (Tex.Cr.App.1989); Hardesty v. State, 667 S.W.2d 130 (Tex.Cr.App.1984); Walker v. State, 626 S.W.2d 777 (Tex.Cr.App.1982); Fisher, 379 S.W.2d at 901; Searcy v. State, 28 Tex.App. 513, 13 S.W. 782 (1890). Rather than reject appellant's position based on his role as solicitor, we will evaluate his claim in light of his bargaining position.

We now turn to an examination of each promise that appellant urges rendered his confession involuntary. At the hearing on the motion to suppress the testimony showed that appellant met with the district attorney who told him that he would seek the death penalty if the evidence indicated that capital murder was the appropriate charge. The record clearly reflects that the district attorney never positively and unequivocally promised appellant that he would seek the death penalty. In Freeman v. State, 723 S.W.2d 727 (Tex.Cr.App.1986), the accused was concerned with avoiding a charge of capital murder. This Court held that the State's "promise" not to charge the defendant with capital murder was simply an assurance under the law and evidence that no such charge would be lodged in that case. Freeman, 723 S.W.2d at 730. This case is analogous to Freeman in the sense that the district attorney was constrained to seek an indictment that comported with the circumstances of the case. See Article 2.01, V.A.C.C.P.

Without reaching the remaining prongs of the Fisher test we hold that appellant has failed to demonstrate the party in authority made a positive and unequivocal promise to seek the death penalty. See Smith v. State, 779 S.W.2d 417, 427 (Tex.Cr.App.1989).

Appellant's second Fisher argument is based on his request that the district attorney set up a visit with his girlfriend. The record demonstrates that the district attorney, under questioning by appellant, agreed that he had promised to have appellant's girlfriend visit and that he was a person in authority. ¹ We also read the record as reflecting the district attorney's agreement, though rather oblique, that the visit of appellant's girlfriend was of benefit to appellant. Having satisfied the first three prongs of the Fisher test, appellant now argues that the meeting with his girlfriend was of such great value that it would influence him to speak untruthfully. We reject appellant's argument. First, the visit of appellant's girlfriend would occur as a normal policy. Appellant's experience with the criminal justice system was such that he would have been aware of his rights to visitation while incarcerated. It stretches credulity to believe that appellant would incriminate himself in order to receive a benefit that he had to know was his as a matter of course. Smith, 779 S.W.2d at 428. Second and most important, the appellant in this case cast himself in the role of entrepreneur and as such has diminished ability to complain on appeal that he was "influenced" or "induced" to do anything. The State did not initiate the meeting that led to the offer of appellant or proffer any inducements that supplanted appellant as the instigator in this arrangement. Appellant has not met the final prong of the Fisher test.

The trial court is the sole judge of the credibility of witnesses in a pretrial hearing and absent a showing of an abuse of discretion the trial court's findings will not be disturbed. Freeman v. State, 723 S.W.2d 727, 729 (Tex.Cr.App.1986); Nichols v. State, 754 S.W.2d 185, 189 (Tex.Cr.App.1988). Appellant's point of error number one is overruled.

In his second point of error appellant contends the trial court erred in failing to grant his motion to suppress based on an alleged invalid waiver of his right to counsel. Appellant concedes that his testimony concerning his verbal request for counsel during his appearance before two different magistrates was controverted by officers present at the hearing. Appellant, however, argues that his refusal to sign the bottom of the magistrate warning forms creates a reasonable presumption that appellant did not intend to waive his right to counsel or talk to officers without counsel being present. Further, appellant contends that, having invoked his right counsel, his response to subsequent police questioning was not a showing of a valid waiver of counsel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). We disagree and do not accept appellant's argument that Edwards v. Arizona controls this case. ²

A defendant may waive his Miranda rights provided the waiver is made voluntarily, knowingly and intelligently. Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Only if the "totality of circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran, 106 S.Ct. at 1141.

The State presented witnesses who testified that appellant was warned on numerous occasions, by both law enforcement officers and several magistrates, of his right to counsel and right to remain silent. The testimony consistently demonstrated that appellant was not confused or under duress at the time warnings were administered. In addition, appellant has not presented any caselaw supporting his theory that his refusal to sign the magistrate warning form invoked his Fifth Amendment right to counsel.

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. In light of appellant's experience with the criminal justice process, the ambiguous nature of his testimony regarding the right to counsel, the rational state of appellant, and testimony indicating multiple warnings were given to appellant, we can find no evidence to show the trial court engaged in an abuse of discretion in denying appellant's motion to suppress. Freeman v. State, 723 S.W.2d 727, 729 (Tex.Cr.App.1986); Nichols v. State, 754 S.W.2d 185, 189 (Tex.Cr.App.1988). Appellant's point of error number two is overruled.

In points of error numbers three and seven appellant contends that the trial court improperly granted the State's challenge to Sammy Gilbert based on (1) Gilbert's opposition to the death penalty and (2) Gilbert's disqualification under Article 35.16(a)(5) and (a)(11), V.A.C.C.P.

In point of error number seven, appellant specifically argues that the evidence was insufficient to sustain the State's challenge to Gilbert based on his inability to read and write. Article 35.16(a) 5, 11, V. A.A.C.P. The record reveals that during voir dire Gilbert was equivocating on his answer to special issue number two. Gilbert indicated that he was confused about question two when the trial court intervened and asked Gilbert to read special issue two from a poster board. Gilbert testified that a stuttering problem interfered with his ability to read. The trial judge requested that Gilbert read issue number two silently and explain the meaning. Gilbert responded:

"The Court: Well, as I remember it, the prosecutor did read it to him. So, tell us what it means, that No. 2?

"The Juror: You have to convince the jury within a reasonable doubt that the defendant, you know, is guilty or not.

"The Court: Whether the defendant is guilty or not?

"The Juror: Uh-huh.

"The Court: Is that what you said?

"The Juror: Yes."

After sustaining the State's challenge for cause ...