McKittrick v. State, 51364

• Decision Date: 20 September 1976
• Docket Number: No. 51364,51364
• Citation: 541 S.W.2d 177
• Parties: Marcia McKITTRICK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 177

541 S.W.2d 177

Marcia McKITTRICK, Appellant, v. The STATE of Texas, Appellee.

No. 51364.

Court of Criminal Appeals of Texas.

Sept. 20, 1976.

Charles L. Caperton and Kenneth E. Labowitz, Dallas, for appellant.

Carol S. Vance, Dist. Atty. and Phyllis Bell, Robert C. Bennett, Jr., Asst. Dist. Attys., Houston and Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder with malice under the former Penal Code. Punishment was asessed in a bench trial at ten (10) years' confinement in the Department of Corrections.

On original sumission the appeal was abated because the trial court failed to file its findings of facts and conclusions of law regarding the voluntariness of the appellant's confession. See McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976). There, it was held that the requirements of Article 38.22, Vernon's Ann.C.C.P., and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), requiring the trial court to make such findings must be followed whether the defendant objects to the failure of the court to follow the statutory duty or not. See Hester v. State, 535 S.W.2d 354 (Tex.Cr.App.1976). A supplemental transcription has now been filed reflecting such findings and conclusions. The appeal has now been reinstated.

The indictment returned on April 25, 1973, alleged that on or about September 24, 1972, Bobby Vandiver and the appellant McKittrick 'did with malice aforethought kill John Hill by shooting him with a gun.' Proof showed that Hill was a medical doctor.

The sufficiency of the evidence to sustain the conviction is not challenged. In appellant's sole ground of error she states:

'The trial court erred in denying appellant's motion to suppress her confession of September 25, 1973, because said confession was coerced and involuntary; the circumstances under which the confession was obtained reveal that her protected rights were violated in its production.'

The evidence presented during the hearing on the pre-trial motion to suppress was voluminous and contains an exhaustive examination into all aspects of the events leading to appellant's confession.

The record reflects that the indictment was returned on April 25, 1973. On May 14, 1973, the appellant, accompanied by her attorney, Charles Caperton of Dallas, posted bond. On May 25, 1973, the appellant was arraigned. Her counsel was present.

Detective J. W. Carpenter of the Houston City Police Department, Homicide Division, testified he had been active in the investigation of the shooting death of Dr. John Hill. Carpenter related he was present at the arraignment of the appellant and that subsequently on a date not made clear by the record ¹ he was contacted by Detective Hargraves of Lubbock, where the appellant had been arrested for prostitution, and who stated appellant wanted to talk to Carpenter. Appellant told Carpenter she wanted to come to Houston to discuss the murder indictment against her, and Carpenter arranged for the Lubbock police to put her on a plane for Houston. Carpenter waited for her, and when she failed to arrive as scheduled, he checked and discovered she had deplaned at a stop in Austin.

After this event, appellant's counsel, Caperton, filed a motion for a temporary restraining order and permanent injunction to enjoin Carpenter and all other peace officers from contacting or harassing the appellant. Carpenter later learned the matter was moot when neither the appellant nor her attorney appeared for a hearing on the said motion.

On September 24, 1973, at 7 p.m. Carpenter received a telephone call from a Dallas city detective. When he returned the call, he was informed that appellant was in custody in Dallas on several charges and wanted to talk with Carpenter about a murder case. Carpenter talked with the appellant, who said she wanted to 'get her business straight' about the John Hill murder case, and that she was sincere about it this time, and her bondsman 'had gone off her bond' in the murder case. When Carpenter inquired about her lawyer, appellant informed him Caperton didn't represent her any more and had told her to do anything she wanted to do. Carpenter told her that if there was an outstanding capias for her he would come to Dallas to pick her up. Carpenter then learned that the bondsman 'had gone off the bond' and there was an outstanding capias. He then called the appellant and told her he was on his way to Dallas. She requested a change of clothes, and Carpenter obtained some from his wife and then picked up his partner, Detective Gamino, and arrived in Dallas between 11:30 p.m. and midnight. They secured appeallant's release in about an hour, and Carpenter then asked if she had been given her warnings, and she replied she had been before a judge, and in response to Carpenter's question told him she knew she didn't have to talk to them. Around 1 a.m. they stopped in a gas station and the appellant changed clothes. Appellant told Carpenter she was 'dope sick,' and he observed she was having chills and was in some discomfort. About 3 or 3:30 a.m. they stopped at a truck stop and all had breakfast, and Carpenter said he gave her two aspirins for her discomfort when they had coffee. He recalled that on the trip she asked about getting some methadone, and he replied he didn't know, he would have to check on what was available when they got to Houston. Carpenter revealed they reached Houston about daylight, and the 'case wasn't discussed on the way back to any extent.' They arrived at the Homicide Division, and appellant went to the restroom with a female detective and had coffee, and they then waited 'for the first judge to get there.'

It appears that at 9:35 a.m. the appellant was taken before a magistrate, Judge Mike Breen, and Carpenter testified the Judge gave her the warnings found on the face of the subsequent confession, which are in accordance with Articles 15.17 and 38.22, Vernon's Ann.C.C.P., and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Then at 9:50 a.m. Carpenter began to interrogate the appellant about the charge against her. At 11:20 a.m. appellant signed the typed statement in the presence of witnesses after she had read the confession, including the warnings thereon.

Carpenter testified he had no trouble communicating with appellant while taking her confession, that she was an intelligent girl, communicated in an intelligible manner, and was able to understand what she was revealing and knew 'what was going on around her.' He related she had her 'wits about her,' was not crying or emotionally distressed. He stated that while she had complained of chills, discomfort, etc., on the trip from Dallas and stated she felt bad, she also stated when asked if she wanted to give a confession that she felt 'like going ahead' and asked and was given coffee.

Carpenter testified that he made no threats or promises to her, nor did he use coercion to obtain her written statement. He told her he could not help her in connection with any of the charges in Dallas County, but would talk to the Harris County District Attorney's office to see if they would make an offer as to her testimony in the murder case. He testified that she had not asked for nor was she denied food, rest, sleep, etc., that appellant's confession had been freely and voluntarily given.

Carpenter later testified that After the confession was taken he took the appellant to the Repose Clinic at St. Joseph's Hospital, and the appellant talked with a nun and a doctor. The doctor then decided she was not eligible for methadone, but did give her three prescriptions without any examination. ² The prescriptions were lomotil for diarrhea, amytal as a sedative and valium. Carpenter paid to have the first two prescriptions filled, but not the third as the appellant stated she would not take valium. He was reimbursed by the police department.

Lillian Duke, registered nurse at the Harris County Jail, called by the appellant, testified that the appellant came into her custody at 2:30 p.m. on September 25, 1973, after being booked into jail at 1:45 p.m. and having taken two capsules of sodium amytal at 2:15 p.m. At the time appellant was semi-conscious, was having difficulty with her respiration, and seemed to have had an overdose of drugs. There were fresh needle marks on her arm. She was given artificial respiration and liquids. The nurse stated that the appellant had come to jail with a bottle of 98 sodium amytals, the prescription having called for 100 capsules; that amytal was a barbiturate which affects the central nervous system, and would account for appellant's semi-conscious condition. It was related that after treatment appellant slept for 24 hours.

Robert Walker, administrator for the medical division of the Harris County Sheriff's department, also called by the defense, stated he saw the appellant a few hours after admission into the jail and described her as being in a semi-comatose state.

Testifying in her own behalf, the appellant stated after the arraignment on May 25, 1973, Assistant District Attorney Bob Bennett approached her and asked if she knew what immunity meant and offered her immunity for her testimony in the case and mentioned something about paying a month's rent on her apartment. She related that Caperton, her attorney, told her not to talk 'to them,' and she didn't. She stated the next day as she was leaving Houston for West Texas two men not in uniform grabbed her at the airport and said they were Texas Rangers. She struggled, lost her plane ticket, but retained her purse, ran up an escalator, and took a taxi cab and made her escape.

She testified she had been arrested in Lubbock about June 12th for prostitution, paid her fine and had gone back to her motel when two hours later at night Detectives Hargraves and Cooper arrived and took her...