Masterson v. State

• Decision Date: 02 February 2005
• Docket Number: No. AP-74344.,AP-74344.
• Citation: 155 S.W.3d 167
• Parties: Richard Allen MASTERSON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

155 S.W.3d 167

Richard Allen MASTERSON, Appellant, v. The STATE of Texas.

No. AP-74344.

Court of Criminal Appeals of Texas.

February 2, 2005.

Janet Morrow, Spring, for Appellant.

Kelly Ann Smith, Asst. DA, Houston, Matthew Paul, State's Attorney, for State.

OPINION

KELLER, P.J., delivered the opinion of the unanimous Court.

Appellant was convicted of a capital murder¹ committed on January 27, 2001. Pursuant to the jury's answers to the special issues set forth in Texas Code of Criminal Procedure, Article 37.071, §§ 2(b) and 2(e), the trial judge sentenced appellant to death.² Direct appeal to this Court is automatic.³ Appellant raises eight points of error. We will affirm.

I. GUILT

A. Appellant's recorded confession

In points of error two and three, appellant complains about the admission into evidence of a tape-recorded confession taken from him by a Texas police officer while appellant was in custody in Florida. In point of error two, he complains that his confession was induced by a promise of leniency for his nephew. In point of error three, he complains that his confession was taken after he invoked his right to counsel.⁴

1. Background

After the victim was murdered, appellant drove the victim's car to Georgia. He left that car with relatives and continued on to Florida, where he was arrested after stealing another car. In the meantime, appellant's nephew was arrested for possession of cocaine left by appellant in the victim's car.

Houston police officer David Null interviewed appellant at the Marion County, Florida jail. Null testified that he advised appellant of all the warnings required by Article 38.22. After each warning, he asked appellant whether he understood the warning, and appellant answered affirmatively each time. Null then asked whether appellant wished to give up those rights, and appellant stated that "he wanted to clear things up." Null testified that he never made any promises to appellant, never offered appellant anything in exchange for talking about the murder case and never threatened appellant or any member of appellant's family. Regarding appellant's nephew, Null testified that he was aware that the nephew had been caught in a stolen car, but did not offer anything to the nephew in exchange for a statement in the case. Null said that appellant did say that there had been dope in the car and that the dope belonged to appellant and not to the nephew. When asked whether he offered to help the nephew in any way, Null testified: "I told him [appellant] that if the dope was his and he wanted to admit the dope was his that I would let the people know that he was admitting that the dope, it was his dope." Null also testified that appellant never asked for an attorney.

Appellant testified that, when Null said he wanted to ask some questions, "I asked him if I needed a lawyer." According to appellant, Null ignored his question. Appellant also testified that he had earlier asked a magistrate at extradition proceedings "if I could get a lawyer." With regard to his nephew, appellant testified that he told Null about his nephew's situation and asked "if they could get that took care of." According to appellant, Null replied that "he'd see what he could do." Appellant testified that he understood that answer to mean "[t]hat he, if I cooperated with him, he would help me out."

At the end of the suppression hearing, the trial court found:

There is no credible evidence to indicate that the defendant was ever promised anything to make this statement. The credible evidence shows that the defendant never asked for a lawyer, that he waived his rights and freely and voluntarily gave the statement to Officer Null.

2. Analysis

In reviewing a trial court's ruling on a motion to suppress, the appellate court should afford almost total deference to the trial court's determination of the historical facts, especially when that determination involves an evaluation of the credibility and demeanor of witnesses.⁵ With respect to both of appellant's claims, the trial court was free to believe Officer Null's testimony and disbelieve appellant's testimony.

With regard to whether an impermissible promise was made, Officer Null stated that he simply told appellant, if the drugs belonged to him and he wanted to admit to that, Null would pass along that admission. In Martinez v. State,⁶ we addressed a similar situation. In that case, the police detective testified that he told the defendant that he needed to know who the drugs belonged to, and from that the defendant "could have gathered" that his father and brother would not be charged if the defendant "accepted responsibility."⁷ We held that "the evidence supports the implied finding that no positive promise was ever made by the detective" to the defendant.⁸ In the present case, the police officer's statements were even more circumspect because he simply indicated that he was willing to pass along any information the defendant wanted to convey. No positive promise was made. Moreover, the evidence suggests that appellant initiated the discussion regarding helping his nephew. "Having cast himself in the role of entrepreneur, [appellant] cannot expect an appellate court to find implied `promises' in official responses (to his overtures) that are ambiguous at best."⁹

Regarding appellant's claim that he requested counsel, the trial court was within its discretion to believe Null's testimony that no counsel was requested. Appellant contends, however, that the trial court had no discretion to disbelieve appellant's testimony about requesting counsel before the magistrate because the State never controverted that testimony. But the trial court has discretion to disbelieve testimony even if it is not controverted.¹⁰ The trial court did in fact discount appellant's testimony and was within its discretion to do so. Points of error two and three are overruled.

B. Lesser-included offense

In point of error one, appellant contends that the trial court erred in refusing to submit his requested instruction regarding the lesser-included offense of criminally negligent homicide. At trial, appellant testified that he met the victim at a "hustler bar," went home with him, and engaged in consensual sexual conduct with him. According to appellant, the victim requested that appellant perform a "sleeper hold" to enhance the quality of the victim's sexual experience. Although the "sleeper hold" resulted in the victim's death, appellant testified that this result was unintended.

Assuming, without deciding, that appellant was entitled to the requested instruction, we find any error to be harmless. The jury was instructed on the lesser-included offense of manslaughter.¹¹ We held in Saunders v. State that the jury's failure to find an intervening lesser-included offense (one that is between the requested lesser offense and the offense charged) may, in appropriate circumstances, render a failure to submit the requested lesser offense harmless.¹² This is so because the harm from denying a lesser offense instruction stems from the potential to place the jury in the dilemma of convicting for a greater offense in which the jury has reasonable doubt or releasing entirely from criminal liability a person the jury is convinced is a wrongdoer.¹³ The intervening lesser offense is an available compromise, giving the jury the ability to hold the wrongdoer accountable without having to find him guilty of the charged (greater) offense.¹⁴ While the existence of an instruction regarding an intervening lesser offense (such as manslaughter interposed between murder and criminally negligent homicide) does not automatically foreclose harm — because in some circumstances that intervening lesser offense may be the least plausible theory under the evidence¹⁵ — a court can conclude that the intervening offense instruction renders the error harmless if the jury's rejection of that offense indicates that the jury legitimately believed that the defendant was guilty of the greater, charged offense.¹⁶

In Saunders, the defendant was charged with murder by squeezing a baby's head with intent to cause serious bodily injury.¹⁷ The trial court denied the defendant's request to include in the jury charge an instruction on criminally negligent homicide but did include an instruction on "involuntary manslaughter"¹⁸ (now known simply as "manslaughter").¹⁹ The basic difference between (involuntary) manslaughter and criminally negligent homicide was (and is) that "in the former, that actor recognizes the risk of death and consciously disregards it, while in the latter he is not, but ought to be, aware of the risk that death will result from his conduct."²⁰ We found significant evidence in the record that the defendant was aware of the risk of death,²¹ and therefore, manslaughter was a realistic option for the jury.²² Consequently, the jury's conviction of the defendant for murder, despite the availability of involuntary manslaughter, indicated that the jury did in fact believe that the defendant harbored the specific intent required for the charged offense.²³

Like the defendant in Saunders, appellant was denied an instruction on criminally negligent homicide but received an instruction on manslaughter. In addition, the record in the present case also contains significant evidence of appellant's awareness of the risk of death. On the witness stand, appellant testified that he initially refused the victim's request to apply a "sleeper hold" because doing so "scares" him. He testified that he had performed such a hold before, and he testified that he knew just by looking at the victim after he performed the "sleeper hold" that the victim was dead. Under the circumstances, if the jury truly believed that appellant performed a "sleeper hold" as a sexual maneuver and did not intend to kill the victim, the jury could easily have given effect to that belief by acquitting appellant of capital murder and convicting him...