McCoy v. State

Decision Date18 June 1986
Docket NumberNo. 69331,69331
Citation713 S.W.2d 940
PartiesStephen Albert McCOY, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals
OPINION

MILLER, Judge.

Appellant was convicted of capital murder, 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 does not contest the sufficiency of the evidence to support the conviction or sentence, but brings thirteen grounds of review before this Court. Because of the nature of the grounds of error, a review of the facts is unnecessary. We will affirm.

In grounds of error numbers six and seven, appellant contends that the trial court erred in failing to strike for cause veniremen Hortense Webb and Nancy Davenport, respectively, because their testimony indicated that they would be unable to properly apply the law and disregard an illegally obtained confession. Challenges for cause were made after each of the two prospective jurors expressed reluctance to disregard a confession solely because of a "technicality," such as officers' failure to provide a defendant with an attorney. We will consider these two grounds together.

When questioned by defense counsel, Webb stated that she would be able to disregard a confession if there was evidence that the defendant had been beaten by the police. The record reflects the following testimony on further voir dire examination:

"Q. [BY DEFENSE COUNSEL] ... Let's take my hypothetical where they have the defendant in jail. He says, I want my lawyer. I don't want to talk to you. I want my lawyer. They give him all the time--well, they give him an hour to make his phone calls, get his lawyer. He can't get his lawyer. The detective just finally wears him down, says, come on, we know you are in this, we know you are involved somehow. You know, we've got some witnesses against you. Finally he gives a confession. But because of all that evidence that was presented to you, you are not convinced beyond a reasonable doubt that he freely and voluntarily waived his Constitutional rights not to talk to the police officer. So if that is the case, then the law says you must ignore the confession because you are not convinced beyond a reasonable doubt that that was a proper confession.

"A. I probably could do it that way, that if if [sic] it was really reasonable doubt that he had given that confession freely, then I could forget the whole thing.

"Q. You can ignore it?

"A. Right.

"Q. Even though the reasonable doubt was put there by a technicality and not on--you know, the easy one is it was beaten out of him.

"A. Yeah.

"Q. But let's go to the hard one. The reasonable doubt was put there by a technicality, a simple thing like getting a hold of his lawyer.

"A. No, No, I couldn't on a technicality. I don't believe I could.

"Q. You could not erase that confession?

"A. I don't believe I could.

MR. RODRIGUEZ [defense counsel]: We will make our motion, Your Honor.

EXAMINATION

"BY THE COURT:

"Q. I think, Miss Webb, what you are saying is this: Just put to you under the hypothetical that Mr. Rodriguez put it to you, a confession to be admissible to you has to be freely, voluntarily and intelligently given, okay?

"A. Okay.

"Q. You've already acknowledged that if the evidence was, hypothetically, that the police rubber-hosed a confession out of somebody, you wouldn't have any trouble with that. If you believed or had a reasonable doubt that that's what they did, you could disregard that confession because it was beat out of the man and he didn't freely and voluntarily give it?

"A. Right.

"Q. Now, that's not permissible and also it's not permissible to take a confession from a person who is telling you all the time, well, I want to talk to my lawyer. But the hypothetical that Mr. Rodriguez gave you had to do with a defendant saying, I want to talk to my lawyer. Maybe the lawyer is out of town or something but they didn't get him and there wasn't any beating or anything or promises but periodically the detective would come back and say, well, we can't find your lawyer and you can't find your lawyer. Do you want to talk to us? And finally the guy says, yeah. Your trouble is, as I understand it, when you got into the trial of a case, if hypothetically those were the facts, what you are telling Mr. Rodriguez is, I would still believe beyond a reasonable doubt that he freely, voluntarily and intelligently gave a confession?

"A. But he did.

"Q. Well, if you believe that, then you can go ahead and consider what the confession says. It's only a time when you don't believe or have a reasonable doubt that it was freely and voluntarily and intelligently given that you are instructed to disregard it. Do you understand? So maybe we are talking about apples and oranges.

"A. We may be.

"Q. Or who comes first, the hen or the egg. First you got to make a determination in your mind, did this defendant freely and voluntarily and intelligently give this confession. And I think the problem between you and Mr. Rodriguez is under his hypothetical you are going to have a hard time believing that that defendant didn't freely, voluntarily and intelligently give a confession.

"A. Right.

"Q. So you are over the hump. Then you can consider the confession.

"A. Right.

"Q. Because really what you are saying, all the defendant had to say one more time to the detective--

"A. Was I want my lawyer. That's what I'm saying, because once he says it of his own free will and he confesses, then he's done it of his own free will.

"Q. You might very well believe, on the other hand, as some jurors, that that man would not have given that confession and what makes it not freely and voluntarily and intelligently is he just was consistently harassed by that police officer, detective to give me a confession, give me a confession and they just wore him down. Somebody might believe that.

But the bottom-line question is this: If you didn't believe or you had a reasonable doubt as to whether a confession was elicited from a defendant against his will, involuntarily and unintelligently given, could you, even though you believe the confession, could you throw it out of your mind and set it aside?

"A. Yes, I could.

THE COURT: Challenge overruled.

EXAMINATION

"BY MR. RODRIGUEZ:

"Q. And that's, again, even though you thought it was a technicality but that convinced you that the defendant had not voluntarily and intelligently waived his rights and given that confession?

"A. Yes. Right.

"Q. And you would have no problem in excluding the confession if you had some reasonable doubts whether or not he was tricked into doing it?

"A. That I could forget it then if I felt he was not beaten or, I mean, if he was.

"Q. Let me say this: If a confession is beaten out of somebody, you might have cause to believe that maybe that's not a reliable confession, maybe that's not true and maybe you would confess to anything.

"A. That's right.

"Q. So that's easy to see why you would exclude it. If they trick it out of him, maybe it's a little suspect as well but not quite as much. Let's say you had some reasonable doubts as to whether or not it was tricked out of him but you believe the confession. There is no doubt he had done it and he was confessing to it but, there again, you had some doubts as to the voluntariness of it because you thought maybe he was tricked into it.

"A. Then I could forget it.

"Q. And if there was no other evidence to support a conviction, then you would cut a murderer loose?

"A. I guess I would.

When questioned by the prosecutor, prospective juror Davenport indicated that she would be able to disregard an illegally obtained confession. Afterward, the following testimony was given:

"Q [BY DEFENSE COUNSEL] ... I know the law says otherwise but that's a technicality and I'm tired of people getting off on technicalities and I'm not going to do that. Now, I need to know how Miss Davenport feels about that?

"A. That's a tough one because I am tired of it. I don't know. I don't know.

"Q. There again, as the judge says, "I don't know" answers or "I think so" answers scare us because it may happen, it may come to pass that you are in that situation and we are stuck with a juror that the best they can do, I don't know, I have to tell you when I get there. Then it's too late.

"A. I think I'd stick with the confession, to tell you the truth.

"Q. I'm sorry?

"A. I think I'd stick with the confession.

MR. RODRIGUEZ: We will challenge, Your Honor.

* * *

"Q. [BY DEFENSE COUNSEL] ... So that's a situation where the confession was tricked out of the defendant but, on the other hand, you believe it is true, you got your man. There is no doubt about it, you believe that confession but you think he was tricked. Now how do you feel? Could you ignore that confession and, if you have to, set that man free if the State doesn't bring you enough evidence otherwise?

"A. If I think that he was tricked and if the State does not bring enough evidence otherwise to prove him guilty, I could set him free, yes.

"Q. You could?

"A. Those two things, if I really truly believed that he was tricked and if the evidence was not there to convict him.

* * *

"Q. [By Prosecutor] ... So basically the test is, if you hear the facts as to the voluntariness of a confession and after having heard those facts presented to you by the State, if they don't convince you beyond that reasonable doubt, in other words, if you still reasonably doubt the voluntariness of the confession, you have to set it aside and not consider it. And if you do reasonably doubt the voluntariness of the confession, I take it that you could disregard it?

"A. Yes.

Appellant's challenges for cause were...

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