McKittrick v. State

Decision Date28 April 1976
Docket NumberNo. 51364,51364
Citation535 S.W.2d 873
CourtTexas Court of Criminal Appeals
PartiesMarcia McKITTRICK, Appellant, v. The STATE of Texas, Appellee.

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

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

OPINION

GREEN, Commissioner.

In a trial before the court on a plea of not guilty, appellant was convicted of murder. Punishment was assessed at ten years.

Appellant's sold ground of error reads:

'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.'

Appellant specifically complains that she was taken from Dallas to Houston by Houston police officers without the knowledge or consent of her retained attorney; that the officers taking her discussed the case with her prior to her receiving the Miranda warning; that the confession was procured by virtue of promises of immunity and medical attention made by Detective J. W. Carpenter, and was taken while she was under the influence of drugs and suffering from heroin withdrawal symptoms; and that she did not knowingly and voluntarily waive her Miranda rights.

After a hearing on appellant's motion to suppress her written confession, the court overruled the motion, and the confession was admitted in evidence over appellant's objections at her trial.

The transcription of the court reporter's notes of the evidence at the hearing exceeds 250 pages. Both the State and appellant placed a number of witnesses on the stand. Appellant testified, giving her view of the proceedings leading to he confession. The testimony of State and defense witnesses concerned events occurring in Houston, Dallas and Lubbock over a period of several days. Among the fact issues raised were whether appellant knowingly and intelligently waived the presence of counsel and her right to remain silent, whether she was under the influence of drugs which led to her giving the confession, whether her confession was secured as the result of promises made her by the officer taking the confession.

No order was entered by the trial court stating its findings on the fact issues raised at the hearing. The only ruling of the court reflected by the record was the statement made at the close of the hearing on the motion to suppress 'THE COURT: The Defendant's objection to State's Exhibit No. 1 (the written confession) is overruled, and the Defendant's Motion to Suppress the Statement is overruled and denied.'

A determination by the trial judge of the voluntariness of a defendant's confession prior to its admission in evidence is a constitutional and statutory requirement, and such determination must distinctly appear in the record. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593; Davis v. State, Tex.Cr.App., 499 S.W.2d 303; Lopez v. State, Tex.Cr.App., 384 S.W.2d 345. Also see Art. 38.22, Sec. 2, V.A.C.C.P. 1

In Davis v. State, supra, the trial court, after conducting a hearing on the defendant's motion to suppress the confession, failed to make Any fact findings on the issues raised, as expressly required by Art. 38.22, Sec. 2, V.A.C.C.P., supra, but merely overruled the motion to suppress, and admitted the confession in evidence. On the original submission this Court, with two judges dissenting, held that the failure of the trial court to comply with the constitutional and statutory requirements of making fact findings as to the voluntariness of the confession constituted reversible error, and ordered the judgment reversed and the cause remanded. On rehearing, a supplemental transcript containing the written findings of the trial court as to the voluntariness of the confession, which findings were made subsequent to the opinion remanding the cause, was filed in this Court. Thereupon, a majority of the Court, with two judges dissenting, held that both constitutional and statutory requirements had been met, and proceeded to consider the appeal and affirm the judgment.

In Hester v. State, Tex.Cr.App., 535 S.W.2d 354 (1976), the question of the voluntariness of defendant's confession was also raised in the trial court. The trial judge, after conducting a hearing on defendant's motion to suppress the confession, overruled the motion and made fact findings as follows:

'The Court finds that the statement or confession of the defendant, RANDALL LEWIS NYMAN, marked State's Exhibit No. 2, to have been voluntarily made contemporaneously with a knowledgeable waiver of right to assistance of counsel and is held to be admissible as a matter of law and fact.

'The court further finds that the statement of the defendant, ROGER DALE HESTER, marked State's Exhibit No....

To continue reading

Request your trial
35 cases
  • Okunno v. Thaler, CIVIL ACTION NO. H-10-2857
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 10 Mayo 2011
    ...findings filed with the clerk of this Court...." See Urias v. State, 155 S.W.3d 141, 142 (Tex. Crim. App. 2004); McKittrick v. State, 535 S.W.2d 873, 876 (Tex. Crim. App. 1976). The trial court has done so. Therefore, [Okunno]'s first complaint is moot. Rocha v. State, 16 S.W.3d 1, 10 (Tex.......
  • Watson v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 14 Diciembre 1988
    ...of law after the Court of Appeals abated the appeal and ordered the same done. See Article 38.22, V.A.C.C.P.; McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976). In its written findings the court found that appellant had been duly warned of his rights, had acknowledged he understood his ......
  • Gammage v. State
    • United States
    • Court of Appeals of Texas
    • 13 Enero 1982
    ...is a constitutional and statutory requirement, and such determination must distinctly appear in the record. McKittrick v. State, 535 S.W.2d 873, 875 (Tex.Cr.App.1976). Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 593 (1964).See Tex.Code Crim.Pro.Ann. art. 38.22(6) (Vernon 1977)......
  • Peterson v. State, 78-1750
    • United States
    • Court of Appeal of Florida (US)
    • 13 Julio 1979
    ...State v. Utsler, 21 Ohio App.2d 167, 255 N.E.2d 861 (1970); Commonwealth v. Herge, 436 Pa. 542, 260 A.2d 787 (1970); McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976), cases holding that a specific recitation that the trial court finds the statement voluntary is necessary to a denial of......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT