Marini v. State, 58339
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Citation | 593 S.W.2d 709 |
Docket Number | No. 58339,No. 2,58339,2 |
Parties | Terry Joe MARINI, Appellant, v. The STATE of Texas, Appellee |
Decision Date | 06 February 1980 |
John Mustachio, on appeal only, Houston, for appellant.
Carol S. Vance, Dist. Atty., Michael C. Kuhn and R. P. Cornelius, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, TOM G. DAVIS and CLINTON, JJ.
This is an appeal from a conviction for capital murder. At the punishment stage the jury answered the second punishment issue under Art. 37.071, V.A.C.C.P., in the negative and, accordingly, punishment was assessed at life.
In twenty-one grounds of error appellant complains, among other things, of the admission into evidence of his oral confession and the fruits thereof, of certain remarks made by the prosecutor, of the admission of impeachment testimony against him, and of the admission of certain photographs into evidence. After careful review of appellant's various contentions, we conclude that all are without merit.
The several grounds of error relating to appellant's oral statement and its fruits will be discussed first. An account of the facts surrounding this confession and its contents is crucial to answering appellant's contentions.
On the afternoon of Sunday, September 5, 1976, the body of Buell Allen Bankston was discovered concealed in a boxspring mattress at an apartment occupied by David Colerider. Appellant and Colerider appeared at the scene and were arrested while police were conducting their investigation. After being advised of his constitutional rights, appellant was taken to police headquarters, at which time he gave and signed a written statement in which he denied any involvement in the crime. Appellant was taken before a magistrate on the morning of September 6 and again advised of his rights. Shortly after midnight on Tuesday, September 7, officer Frazier checked appellant out of jail for further interrogation. Appellant was advised of his rights for the third time and indicated he understood what was being read to him. At this time the officers displayed a shotgun to appellant and told him Colerider had described the crime. Appellant agreed that everything the police said Colerider told them was true except that Colerider, not appellant, had done the shooting. Appellant told the officers he could prove what he said about the shooting by taking the officers to "the money and the dope." He also indicated that the money was taken from the deceased. After executing a consent to search form authorizing the police to search his car, appellant was taken to the parking lot of his apartment house, where the car was located. A total of $3,250 in cash, hidden in two different places, was found in the car. At this point, appellant was asked to talk about the crime some more. Reminded that Colerider had said he, appellant, had shot deceased, appellant spontaneously declared, As the officers drove with appellant to where he said the narcotics were hidden, he proceeded to describe in great detail how the crime was committed. He told the officers that he and Colerider had planned to sell some marihuana to the deceased, but that they decided to hijack the deceased when it developed that they would not be able to obtain the quantity of marihuana desired by the deceased. Appellant related that he took a shotgun from under a bed, disguised himself as a hijacker, then burst into a bedroom where Colerider and deceased were standing and demanded deceased to turn over his money. When the deceased realized he was being "set up," appellant shot him. Colerider and appellant took the deceased's money and split it between them. Officer Frazier testified that appellant led the officers to an open field where one-third pound of marihuana and some LSD tablets had been placed.
In his second ground of error appellant contends the trial court erred in admitting testimony relating to his oral confession because the requirements set out in Art. 38.22, V.A.C.C.P., were not met. Addressed to the admissibility of oral statements made as a result of custodial interrogation, Section 1(e) of that statute, in effect at the time this confession was given, provided, in part:
The thrust of appellant's argument is that his oral confession consisting of his declaration, and his account of the crime should not have been admitted because they did not lead to the discovery of objects tending to establish his guilt. He contends that (1) since the money had already been found when appellant declared "I did it . . .," the statement could not have Led to its finding, and that (2) the narcotics that were found subsequent to the incriminating statements did not conduce to establish his guilt for the offense charged.
We disagree with appellant's position because we do not accept his reading of Article 38.22. The facts of the case appear to present a question of first impression requiring us to carefully examine the requirements set out in Article 38.22 quoted above. That provision authorizes admission of a confession if "(i)t be made orally and the defendant makes a statement of facts or circumstances that are found to be true, (and) which conduce to establish his guilt . . ." For purposes of deciding the issue in the instant case, our construction of this clause is twofold. First, we hold that the term "confession", in addition to appellant's initial offer at the police station to lead the officers to the money and narcotics, must be broadly construed to include his incriminating outburst and detailed account of the crime, all of which occurred after the money was found. The later declarations constituted part of one continuous confession which began at the police station.
The second point to be made with respect to this clause is that it requires Some statement contained in the confession be found to be true and conduce to establish guilt, and not that the confession in Each of its parts meets that test. Thus, the fact that the strongest incriminating declarations were made by appellant After the money was found should not render these declarations, which were parts of one continuous confession, inadmissible. This point becomes clearer when it is recognized that the most incriminating declaration ("I shot him") would not in itself lead to finding the money, whether made Before or after it was found. Yet, there can be no doubt that if that portion of the confession were given before the money was found, the entire confession would be admissible. That, essentially, is the lesson of Hayes v. State, 502 S.W.2d 158, where this Court stated:
(Emphasis added.) 1
There should be no difference in result where, as in the instant case, the most incriminating part of appellant's confession was given after the earlier statement in that one, continuous confession led to evidence which conduced to establish his guilt. 2 There was no error in admission of the oral confession. Appellant's second ground of error is overruled.
Appellant's nineteenth ground of error, complaining of testimony by Frazier that appellant told him he disposed of a mask and clothes, is similarly without merit. These statements by appellant were contained in his oral confession to the crime. The confession was admissible in its entirety. Hayes v. State, supra. This ground is overruled.
The twenty-first ground of error challenges the proof of the voluntariness of appellant's oral confession. We have reviewed the evidence in the record concerning the taking of the confession and find it is sufficient to support the trial court's findings that the confession was freely and voluntarily given. It is undisputed that prior to commencement of the interrogation which led to the finding of the money and the complete confession, appellant was warned of his constitutional rights and that he understood these warnings. There is no suggestion in the record that any physical abuse, threats, promises or coercion were exerted in securing appellant's confession. While the events took place at a late hour, this fact standing alone will not defeat a finding of voluntariness. Considering the totality of the circumstances, it must be concluded that the oral confession was shown to have been freely and voluntarily given. This ground of error is overruled.
The third ground of error alleges there is insufficient evidence to rebut an allegedly exculpatory written statement given by appellant. This contention is answered by pointing out that appellant's detailed oral confession outlined above rebutted any exculpatory account he might have previously given. This ground is overruled.
In the thirteenth ground of error appellant argues error was committed by the introduction of LSD tablets and marihuana discovered in connection with his oral confession. Assuming there was some objection to this evidence when offered, there was no objection to officer Frazier's testimony...
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