Lee v. State, 08-93-00096-CR

Citation893 S.W.2d 80
Decision Date30 December 1994
Docket NumberNo. 08-93-00096-CR,08-93-00096-CR
PartiesTerrance LEE, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas

Robert L. Stevens, Rodion Cantacuzene, Jr., Cook & Cantacuzene, P.C., Midland, for appellant.

Al W. Schorre, Jr., Dist. Atty. of Midland County, Midland, for State/appellee.

Before BARAJAS, C.J., and KOEHLER and McCOLLUM, JJ.

OPINION

BARAJAS, Chief Justice.

Terrance Renard Lee appeals his conviction for the offense of capital murder. The jury found Appellant guilty, but answered the death sentence special issues in the negative. Accordingly, punishment was automatically assessed at confinement in the Institutional Division of the Texas Department of Criminal Justice for a life term. See TEX.CODE CRIM.PROC.ANN. art. 37.071 § 2(g) (Vernon Supp.1994). We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

In July of 1992, Alejandro Rodriguez was employed as a cab driver for City Cab Company of Midland, in Midland, Texas. In the early morning of July 6, 1992, he was found dead behind the wheel of his cab, engine running and headlights burning. An autopsy revealed he died of two gunshot wounds to the head, both fatal and both fired from very close range. Two shell casings were found on the left side of the cab's rear floorboard. Cab company records of the evening's fares indicated Rodriguez should have been carrying $81.60. Although some coin change was found in disarray in the cab, it did not total $81.60. Also missing were the small bills necessary to make change for the usually small fares Rodriguez collected.

Police questioned Appellant on three separate occasions. Midland Police Detective Ronnie Bryant first attempted to contact Appellant in person at his home on August 7, 1992. Appellant was not home and Bryant left word with Appellant's sister that Bryant wished to speak with him and that he should contact Bryant. Later in the day, Appellant's mother, Rose Lee, contacted Bryant and asked him to come to the residence to speak with Appellant. Bryant went to the house alone and asked both Ms. Lee and Appellant to accompany him to the police station for questioning. The Lees complied, driving to the station in their own vehicle, with Bryant following.

Arriving at the station at about 7:00 p.m., Bryant took Appellant upstairs to his office and then to an interrogation room, while Appellant's mother stayed downstairs in the lobby. Once in the room, Bryant informed Appellant he was investigating the murder of a cab driver. Appellant was given the required Miranda warnings and specifically told he was not under arrest. Appellant was free to leave at any time during the interview.

At Appellant's request, Ms. Lee was brought to the interrogation room and remained for the duration of the session. Ms. Lee repeatedly encouraged Appellant to tell the truth and actually prayed with him. Appellant gave a recorded statement that began about 9:15 p.m. and went on for some 45 minutes. In this statement, Appellant stated that he knew who perpetrated the crime, although he claimed he was not present when Rodriguez was killed. Appellant said he and two other persons, Jeremiah and Bones, discussed the robbery of a cab driver. They then summoned a cab and entered it together. Appellant claimed he exited the cab before any misconduct took place. He then spoke with someone named James, after which he found the cab with Rodriguez's body at the wheel. After the statement, Bryant told Appellant he would likely need to talk with Appellant again in the future. Appellant then left the station with Ms. Lee.

Bryant interviewed James Green and Jeremiah Sims on August 10, 1992. Sims insisted he was uninvolved, claiming Appellant and Green admitted to him that they killed Rodriguez.

On August 11, 1992, after unsuccessfully trying to contact Appellant in person at his home, Midland Police Detective Paul Stroope contacted Ms. Lee by phone to inform her that police again wished to speak with Appellant. At about 3:00 p.m. that day, Stroope went to Appellant's home accompanied by Midland Police Detective Larry Honeycutt, who told Appellant they wished to speak with him at the police station. Appellant asked if the interrogation could take place at his home so his father could be there to help him, but was told it must occur at the station. The detectives transported Appellant to the station in the rear seat of a police vehicle that did not have a cage or other divider between front and rear seats. Appellant was not restrained in the car in any way.

The detectives took Appellant to a third floor interrogation room and Mirandized him. Honeycutt then read to Appellant the portion of the Texas Penal Code that defines capital murder and prescribes the punishment therefor. Beginning at 6:20 in the evening, Appellant gave another taped statement, which differed from his first statement. Appellant stated he had discussed robbing a cab driver with two persons, Jeremiah and Jaime, while at the latter's residence. Appellant personally summoned a cab and instructed it to meet the three actors at a vacant lot. When the cab arrived, all three entered the rear seat and Jeremiah gave the driver instructions. Jaime then instructed the driver to stop and Jeremiah demanded money. As Jaime took the driver's money, Jeremiah produced a gun and shot the driver twice.

The recording of the second statement was interrupted once when Appellant requested a trip to the men's room, to which he was accompanied by Honeycutt. During another break, Appellant visited with Ms. Lee and prayed with her. After the taping, Honeycutt told Appellant he would likely need to speak with him again in the future.

On August 12, after interviewing James Green, Stroope again went to Appellant's residence and left word with his sister. Stroope returned shortly, this time finding Appellant at home. While Stroope waited on the porch, Appellant phoned Ms. Lee and then asked Stroope to speak with her. Ms. Lee asked if Stroope could wait to question Appellant until she was off work so she could accompany him, but consented when Stroope told her the process would require less time if Ms. Lee met detectives at the police station after work. Stroope then took Appellant to the police station. Appellant was not placed under arrest or otherwise restrained during transportation to the police station.

Arriving at the station at about 5:00 p.m., Stroope took Appellant to the third floor, where Honeycutt was waiting. This third interrogation session was largely conducted by Honeycutt, who twice Mirandized Appellant before questioning him. Appellant then gave a third recorded statement in which he admitted he killed Rodriguez during a prearranged attempt to rob him. After giving the statement, Appellant visited privately with both of his parents. While Appellant waited at the station at Honeycutt's request, Honeycutt sought and obtained an arrest warrant for Appellant. Shortly after that, Honeycutt arrested Appellant.

II. DISCUSSION

Appellant challenges his conviction in eight points of error. Appellant directs his first six points of error to the admission of his confession, alleging various procedural infirmities in the manner that it was obtained. These complaints were pressed in a lengthy pre-trial hearing on Appellant's motion to suppress his confession and his two previous statements, which motion the trial court denied in its entirety. In his first point of error, Appellant claims the trial court erred by concluding that Appellant was not in custody when he gave his third statement. In his second point of error, Appellant complains that the warnings given Appellant before he confessed did not comply with Article 38.22 of the Texas Code of Criminal Procedure. In his third point of error, Appellant claims his confession was not voluntary because it resulted from police coercion. In his fourth point of error, Appellant claims he was not allowed to terminate the interrogation session that produced his confession in violation of Article 1, Section 9 of the Texas Constitution. In his fifth point of error, Appellant claims interrogation continued after he made an ambiguous reference to an attorney in violation of the Sixth Amendment to the United States Constitution. In his sixth point of error, Appellant claims the interrogation process generally, together with his lack of understanding of his constitutional and statutory rights, denied him his Fifth Amendment right to remain silent.

Turning our attention to Appellant's first point of error, we observe that Appellant fails to identify the portion of the record wherein the trial court made the finding of which he now complains, namely, that Appellant was not in custody when he gave his third statement. The trial court apparently did not make written findings of fact and conclusions of law, but Appellant lodges no complaint in this regard. The transcription of the suppression hearing does, however, contain an oral finding by the trial court that Appellant was not in custody during any of the interrogation sessions and we presume Appellant directs his first point of error at this finding. 1

A trial court has broad discretion in determining the admissibility of evidence and we will not reverse absent a clear abuse of discretion. Allridge v. State, 850 S.W.2d 471, 472 (Tex.Crim.App.1991), cert. denied, 510 U.S. 831, 114 S.Ct. 101, 126 L.Ed.2d 68 (1993). On a motion to suppress evidence, the trial judge is the sole and exclusive trier of fact and judge of credibility of witnesses including the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Cannon v. State, 691 S.W.2d 664 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1110, 106 S.Ct. 897, 88 L.Ed.2d 931 (1986); State v. Wood, 828 S.W.2d 471, 474 (Tex.App.--El Paso 1992, no pet.); Subia v. State, 836 S.W.2d 711 (Tex.App.--El Paso 1992, no pet.); Edwards v. State, 850 S.W.2d 731, 735 ...

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