Johnson v. State

• Decision Date: 23 October 1985
• Docket Number: No. 69300,69300
• Parties: Curtis Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 154

698 S.W.2d 154

Curtis Lee JOHNSON, Appellant, v. The STATE of Texas, Appellee.

No. 69300.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 23, 1985.

Ronald Mock, Benjamin Durant, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty. and Don Clemmer and Wilford Anderson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

Appellant appeals his conviction for the capital murder of a burglary victim. V.T.C.A. Penal Code, § 19.03. The death penalty was imposed after the jury answered affirmatively the special issues submitted under Art. 37.071, V.A.C.C.P.. Appellant alleges six grounds of error. The sufficiency of the evidence to support the conviction and punishment is not challenged. We affirm.

In his sixth ground of error, appellant contends that the trial court erred in refusing to grant his motion to suppress evidence lodged against appellant's confession since the confession was not knowingly and intelligently given. Appellant specifically contends that the confession was rendered involuntary because he did not eat or sleep prior to questioning, he has a limited ability to read, and the officers told him that another party to the murder had given a statement.

The record reflects that appellant was arrested as a suspect in an aggravated robbery shortly after midnight on September 30, 1983. He was given his Miranda ¹ warnings, which he indicated he understood. The officers took him to the scene of the robbery where the victim identified him as the robber. Appellant was then taken to the Houston Police Department.

Approximately two hours after his arrival, appellant was again informed of his rights. He informed Officer R.E. Casey that he understood his rights and stated "You have me cold so I'm willing to make a statement." Appellant then told the officers that he and Roy Jones went into a U-Totem store, and while he pointed a gun at the attendant, Jones took money from the safe. When he and Jones finished the robbery, they drove away and were followed by Tereso Salazar, who was driving a wrecker truck. After a short chase, they jumped out of the vehicle and hid until the police, assisted by Salazar, found them.

The statement was given at 3:30 a.m., and completed at approximately 4:00 a.m. At no time did appellant request an attorney or state that he wanted to terminate the interview. Moreover, appellant was not induced into giving the statement by promises, threats, or acts of coercion. After the statement was completed, appellant was taken to the jail.

At approximately 7:00 a.m., Detective L.W. Hoffmaster was told that appellant and Jones had been arrested and fit the descriptions of the suspects in the deceased's murder, which had occurred one week earlier. Hoffmaster checked Jones out of jail and took him before a magistrate, who gave Jones the statutory warnings. Jones made a statement and told Hoffmaster that he and appellant had been in the process of burglarizing the deceased's apartment when the deceased and two other men returned. Jones stated that appellant shot the deceased.

After Jones' statement was completed, at approximately 12:30 p.m., September 30, 1983, Hoffmaster checked appellant out of jail and took him before Judge Fad Wilson, who informed appellant that he had been accused of capital murder and gave him the statutory warnings. Appellant told Judge Wilson that he understood the warnings.

At approximately 1:00 p.m., Hoffmaster and Detective H.G. Welsh returned appellant to the homicide office. Hoffmaster testified to the following:

"Q. [By Defense Counsel] And at this particular time, had Curtis Johnson had anything to eat to your knowledge prior to this time?

"A. Well, I wouldn't know. I don't know what he received in the jail. So as far as me giving him anything until then, no. I asked him when we returned, if he wanted a coke or coffee or anything and he said that he wanted a cigarette. So I got him some cigarettes.

"Q. Sir, are you aware of the fact that they don't serve breakfast or that, were you aware of the fact that he didn't get any breakfast over at the city jail that morning?

"A. No, no, I wasn't.

"Q. Do you know what time they serve lunch over at the city jail? Do you have any idea?

"A. No, sir.

"Q. Okay, Do you recall him saying anything to the effect that he hadn't had anything to eat?

"A. No, sir.

"Q. Prior to that time?

"A. No, sir, because if he had, I would have provided him something. I bought Jones a hamburger, potato chips and a coke for lunch, but Curtis, the only thing he asked for was cigarettes and I provided that.

Welsh told appellant that Jones had given his side of the story, and asked appellant if he wanted to give his side. Appellant agreed to give a written statement.

Hoffmaster explained to appellant that he would listen to what appellant said, one or two sentences at a time, type the sentences, and read them back. Appellant then gave his statement.

Substantially, appellant stated that the weekend before, he and Roy Jones went into the deceased's apartment through an open window. They took a camera and $8.00 in cash. As they were preparing to leave, they heard someone coming up the stairs. When the deceased and his friends entered the apartment through the kitchen door, appellant pointed the pistol at them and told them not to move. The deceased's companions ran out of the apartment, but the deceased fell down on his knees and grabbed appellant by his legs. Appellant kicked him and he fell over backwards, then appellant shot him. Appellant and Jones ran back to appellant's house and "layed [sic] low for a while."

Continuing his statement, appellant said that the night before his arrest, Jones went to his house and the two decided to "make some money." They drove to a U-Totem store and went inside. Appellant pulled a gun on the clerk and told him to go to the front of the store and open the cash register. Jones removed the money. They left the store, got in the car and drove away. They were followed by a man driving a wrecker truck. Jones stopped the car and they both got out and ran. Then, they hid until discovered by the officers.

After the statement was completed, appellant read the warnings at the top of the form and placed his initials beside each to indicate that he understood the rights he was waiving. Appellant never requested to have a lawyer present or that he wanted to terminate the interview. The detectives had appellant read the second paragraph of the statement aloud, which he did slowly. He did not tell them that he could not read, nor did he request their assistance. The detectives believed that appellant could read: he had no difficulty pronouncing the words and did not ask for help.

When appellant testified at the Jackson v. Denno ² hearing, he stated that he stopped attending school when he was twelve or thirteen. Appellant's counsel attempted to demonstrate appellant's limited reading ability by having appellant read aloud the second paragraph of his second confession. Appellant took seven minutes to read the second paragraph of the statement, and was assisted by his attorney.

The trial court filed findings of fact and conclusions of law. He found that appellant was properly given his statutory warnings on several occasions, including the time of his arrest, again at the scene of the robbery, and upon his arrival at the Houston Police Department. Each time appellant received the warnings, he indicated that he understood them. At no time did appellant ask for an attorney or request that the interview be terminated. Appellant did not appear to be under any mental or physical disabilities when the statements were given. There was no evidence that any promises were made to induce appellant into giving the statements, nor was he subjected to threats of force or coercion.

The trial court included the following in its findings of fact:

"Additionally, the Court had the opportunity to observe the witnesses during the time that they testified. The Court noticed that while the [appellant] was testifying and reading paragraph two of State's Exhibit no. 3, that being the confession to the capital murder, the [appellant] would periodically stumble over words of one syllable and had very little trouble reading words of several syllables. This indicated to the Court and the Court concludes that the [appellant] pronounced only the words he thought most advantageous to his position. The Court further observed that each of the police officers who testified had indicated that never was the defendant induced or coerced to confess. In fact, Detective Hoffmaster offered the [appellant] coke and coffee. The [appellant] refused, indicating all he wanted were cigarettes, which Detective Hoffmaster provided. At no time did the [appellant] claim that he was ever hungry or thirsty or want anything in any way that was not provided."

The trial court found that appellant knowingly and intelligently waived his rights and gave his confession voluntarily.

The judge at the Jackson v. Denno hearing is the sole judge of the weight and credibility of the witnesses: he may believe or disbelieve any part of any witness' testimony. Hawkins v. State, 660 S.W.2d 65 (Tex.Cr.App.1983), at 72, citing Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978) and Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). See also Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981). The determination of whether a waiver has been knowingly or voluntarily waived must be made on a case by case basis. Barton v. State, 605 S.W.2d 605 (Tex.Cr.App.1980) and cases cited therein at 607. See also McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976). We are not at liberty to disturb the trial court's findings of fact if they are supported by the record; if they are so supported, we address only the question of whether the trial court improperly applied the facts to the law. Faulder v....