Miller v. State
| Decision Date | 06 April 2006 |
| Docket Number | No. 03-04-00218-CR.,03-04-00218-CR. |
| Citation | 208 S.W.3d 554 |
| Parties | Harold MILLER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Connie J. Kelley, Austin, for Appellant.
Holly E. Taylor, Assistant District Attorney, Austin, for Appellant.
Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
A jury found appellant Harold Miller guilty of capital murder in the course of committing or attempting to commit robbery. See Tex. Pen.Code Ann. § 19.03(a)(2) (West Supp.2005). The State did not seek the death penalty, and the district court assessed punishment at life imprisonment. Appellant contends the trial court erred by: (1) admitting evidence seized during a warrantless search of his bedroom; (2) admitting cell phone billing records that were not properly authenticated, were hearsay, and violated his confrontation rights; (3) admitting custodial statements obtained in violation of the United States Constitution and state statute; (4) admitting a recording that was not properly authenticated; (5) refusing to quash the indictment; and (6) refusing to instruct the jury on the lesser included offense of murder. We find no reversible error and affirm the judgment of conviction.
The deceased, seventy-five-year-old Glenn Ragland, bought and sold used cars. Appellant, an automobile mechanic, often worked on Ragland's personal cars and on the cars he purchased for resale. At the time of the murder, appellant was living with his mother and stepfather in an Austin trailer park.
On the morning of April 24, 2003, appellant called his former girlfriend, Carolyn Rountree Lester, and told her that he was thinking about raising some money, paying the debt he owed her, and leaving Austin. The next day, appellant called Lester again and told her that he had obtained a loan. She testified that appellant asked her to go to a nearby Dodge dealership and get a check from a friend of appellant who worked there, Chris Taylor. Following appellant's instructions, Lester went to the dealership and met Taylor, who gave her a check for $2500 payable to her and purportedly drawn by Ragland on April 24. The check bore the notation "loan."
There is no question that this check was forged. A handwriting expert who compared the writing on the check with known samples testified that the check was not written by Ragland, the purported payor, or by Lester or Taylor.1 The expert was also of the opinion that the check had not been written by Gerald Westmoland, another person who was with appellant during part of the afternoon in question. The expert testified that the check "may have" been written by appellant.
Lester took the check to the bank on which it was drawn, endorsed and cashed it, and returned to the dealership. As she had been told to do by appellant, Lester gave $1800 to Taylor and kept the rest for herself.
Taylor testified that appellant called him at work on the afternoon of April 25 and asked if he could drop off a check for Taylor to give to Lester. A few minutes later, appellant called Taylor again and told him he was in the dealership's parking lot. Taylor walked outside and found appellant alone in a car shown by other evidence to have been Ragland's. Appellant handed the $2500 check to Taylor and told him that it was the proceeds of a loan against his truck. Taylor testified that after Lester came to the dealership and took the check, appellant called him again and told him that Lester would be returning with the cash. Taylor agreed to hold the cash for appellant, who came to the dealership to get it later that evening.
Gerald Westmoland was a mechanic who lived in the same trailer park and had worked with appellant on some of his jobs for Ragland. Westmoland testified that appellant called him on the afternoon of April 25 and asked him if he would like to make $500. Westmoland told appellant that he would. Appellant arrived at Westmoland's trailer about forty-five minutes later, driving a car Westmoland recognized as Ragland's. Westmoland said that he assumed appellant was test-driving it. After stopping for food and gasoline, appellant drove to the Dodge dealership, where Westmoland waited in the parts department while appellant spoke to someone in another part of the building.
After leaving the dealership, appellant showed Westmoland the cash, saying it was a loan. Appellant asked Westmoland if he had ever killed someone and offered him $500 to help him bury a body. Westmoland said that he thought that appellant was joking. Appellant also asked Westmoland if he would cash a check for him and showed Westmoland a blank check from Ragland's account. During this conversation, appellant told Westmoland that he "hit some little old man over the head with a fire extinguisher."
Appellant and Westmoland returned to appellant's trailer to watch a movie. Appellant's mother and stepfather were not there. Appellant went into a bedroom and called for Westmoland. When Westmoland entered the room, he saw what appeared to be a body lying on the floor under a blanket. He testified, He added, "I thought they were trying to play a joke on me or something." Westmoland testified that he and appellant returned to the living room, watched television, and smoked crack. Appellant told Westmoland that he planned to go to a hotel later that evening and mentioned After a half-hour or so, when no one came out of the bedroom and he heard no noise, Westmoland got a "weird feeling," made an excuse to leave, and walked to his mother's trailer. Later that night, Westmoland made an anonymous call to Crime Stoppers and reported that a body was in appellant's trailer.
Detective Kerry Scanlon and his partner were dispatched to the trailer at about 10:00 p.m. to investigate the report of a body. They were met at the door by appellant's stepfather, Roy James, who gave the officers permission to search the trailer. Ragland's body was found wrapped in a blanket on the floor of appellant's bedroom. His hands were bound by cable ties. A bag of these ties was later found in the living room of the trailer, as was a fire extinguisher that was dented and covered with Ragland's blood. The medical examiner testified that Ragland died as a result of a "crushed head, broken neck and fractured clavicle due to multiple blunt trauma to the head, back and chest."
The officers located Westmoland at about 1:00 a.m. that night and he agreed to go with them to the police station to make a statement. When Westmoland told the officers what appellant had said about going to a hotel, they began driving through the parking lots of area motels and hotels. At about 2:00 a.m., Westmoland spotted Ragland's car in the parking lot of a Motel 6. After learning that appellant had rented a room at the motel, the officers contacted him by telephone. Appellant was alternately angry and upset. He told the officers that he was sorry for what he had done and that he had unsuccessfully tried to kill himself with a knife. Appellant made several similar calls to Lester, Taylor, and Westmoland's mother. Appellant eventually surrendered to the police at 5:45 a.m. During a subsequent search of the motel room, officers found Ragland's wallet, keys, and cell phone, and $1600 in cash. In Ragland's car, police found Ragland's checkbook and a blank certificate of title. Ragland's blood was found on the steering wheel.
Bedroom search
Detective Scanlon and his partner did not have a search warrant when they went to appellant's trailer to investigate the report of a body in the bedroom. They did, however, obtain written consent to search the trailer from appellant's stepfather, James. Appellant contends that James was not authorized to consent to a search of appellant's bedroom, and that the initial search of that room that resulted in the discovery of the body violated the Fourth Amendment prohibition against unreasonable searches and seizure. See U.S. Const. amends. IV, XIV. In a separate point of error, appellant urges that the search violated his rights under the Texas Constitution. See Tex. Const. art. I, § 9. Based on these alleged constitutional violations, appellant contends that the trial court erred by overruling his motion to suppress evidence seized during the search. In our review of the trial court's ruling, we defer to the court's factual determinations but review de novo the court's application of the law to the facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.App.1997).
Consent to search is an established exception to the Fourth Amendment warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). It is not always necessary that consent be given by the party asserting the constitutional violation. Permission to search may also be given by a third party who possesses common authority over or other sufficient relationship to the premises or effects to be searched. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
The authority which justifies the third-party consent does not rest upon the law of property ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Id. at 171 n. 7. Another way of saying this is that a third party may properly consent...
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...to its admission, and the proponent of the evidence must show that the evidence bears sufficient indicia of reliability. Miller v. State, 208 S.W.3d 554, 564 (Tex. App.—Austin 2006, pet. ref’d ) (in this case, the cell phone records did not bear sufficient indicia of reliability); Davis v. ......
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...to its admission, and the proponent of the evidence must show that the evidence bears sufficient indicia of reliability. Miller v. State, 208 S.W.3d 554, 564 (Tex. App.— Austin 2006, pet. ref’d ) (in this case, the cell phone records did not bear sufficient indicia of reliability); Davis v.......