Miniel v. State

• Decision Date: 22 January 1992
• Docket Number: No. 70733,70733
• Citation: 831 S.W.2d 310
• Parties: Peter J. MINIEL a/k/a Peter Hernandez, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 310

831 S.W.2d 310

Peter J. MINIEL a/k/a Peter Hernandez, Appellant, v. The STATE of Texas, Appellee.

No. 70733.

Court of Criminal Appeals of Texas En Banc.

Jan. 22, 1992.

Rehearing Denied April 15, 1992.

Robert A. Rodriguez, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Kimberly Aperauch Stelter and Ira Jones, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION

OVERSTREET, Judge.

In October of 1988, appellant was convicted, in the 337th Judicial District Court of Harris County, Texas, of capital murder pursuant to TEX.PENAL CODE ANN. § 19.03(A)(2) (Vernon Supp.1986). After the jury returned affirmative answers to the special issues submitted pursuant to TEX.CODE CRIM.PROC.ANN. art. 37.071 (Vernon Supp.1988), the trial judge assessed punishment at death. On direct appeal, appellant raises nine points of error. ¹

I. SUMMARY OF PERTINENT FACTS

Based upon testimony at trial from a co-defendant, the decedent's roommate, and police officers who witnessed appellant's electronically recorded oral confession, we observe that on May 8, 1986 appellant and the co-defendant drove to Galveston, Texas and met the decedent's roommate and another young man. The four young men discussed obtaining some marijuana and agreed to follow one another back to the Houston, Texas area for such purpose. After they arrived at decedent's (and his roommate's) apartment, marijuana was obtained and smoked. The decedent was at home when the group of four arrived and he took part in the smoking. Some of the group, including appellant and the decedent, also "shotgunned" beer. ² Eventually the group wound down to appellant, his co-defendant, the decedent, and the decedent's roommate. In fact, the roommate had "passed out" and gone to sleep in his separate bedroom. Appellant's and his co-defendant's versions differ somewhat regarding who initiated the idea of robbery and who was primarily responsible for certain specific acts. The testimony, however, establishes that the two of them, at least in concert of mind, physically attacked the decedent and robbed him of his money, wallet and stereo audio equipment components. This physical attack consisted of at least one bash to the back of the head with a beer mug, several poundings about the head with a shock absorber, and multiple stabbings and cuttings with a knife (which according to the assistant medical examiner's testimony resulted in a total of 49 wounds). This attack caused the decedent's death. Decedent's roommate somehow managed to remain asleep in his separate bedroom during the attack. Appellant and the co-defendant left the apartment and eventually parted ways. Appellant was arrested on May 21, 1986, in Chicago, Illinois. (The co-defendant was arrested on May 22, 1986, in Brookshire, Texas.) Interviewed there by police, appellant made the above-mentioned oral confession. Some stolen stereo components were recovered in Chicago, while other components, and the knife used, were recovered in the Houston area.

II. APPELLANT'S ORAL CONFESSION

Appellant's first two points of error deal with the voluntariness of his above- mentioned oral confession. As noted previously, he was arrested in Chicago. This arrest was effected by several Chicago Police Department officers and two Houston homicide detectives. A pre-trial Jackson v. Denno ³ suppression hearing was held. Appellant claims that the confession was involuntary in that it was coerced by one of the Chicago officers "grabbing him by the balls," among other things. TEX.CODE CRIM.PROC.ANN. art. 38.21 (Vernon 1979) provides that a statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion. Obviously, appellant's claims aver compulsion and persuasion. Five police officers and appellant testified regarding the circumstances of the arrest and interrogation at the suppression hearing and those officers again testified before the jury at the trial on the merits.

Appellant's testimony at the hearing described his arrest as including being dragged barefoot and thrown around and involving the above-mentioned "ball grabbing," plus hair pulling, throat grabbing, profane language, racial epithets, and exhortations by one officer to not hit him in the face because pictures had to be taken. Appellant claimed that the interrogation took place in a very cold, tile-floored room at a police department substation. This interrogation purportedly involved a beating by one of the officers who had an object in his hand and kicks to the groin. Appellant testified that further interrogation included having him remove his pants and having his "balls" grabbed again with the officer informing him that he was "never going to have no [sic] babies." Appellant claimed that this caused him to almost pass out. He stated that the interrogation continued with orders from one of the Chicago detectives to cooperate and say whatever the other officers told him to say or that he "wouldn't make it." This Chicago officer also purportedly explained that the rationale for the beating was because the "dumb" Texas officers did not know how to do things right as they did in Chicago. Two Houston detectives arrived in the interrogation room shortly after the alleged beating. Appellant then proceeded to talk with them and give them a statement which was electronically recorded. He claims that the only reason he gave the statement was because of fear of the Chicago police. In fact, he claims that the Houston detectives even said that they could leave and go get the Chicago officers back if that's what he wanted. He also claims that the Houston detectives failed to warn him of his Miranda rights and refused his request to talk to a lawyer. The purportedly brutal Chicago officer allegedly still made his presence felt by returning to the room and asking if there was a problem; whereupon after being reassured by the Houston officers that there was not, he left. Though appellant admitted that the officers did not write out a script for him to read, appellant claimed that he was supposed to say what the officers wanted him to say. He consistently maintained that the only reason he made the statement was because of the physical abuse by the Chicago officers and that he did not have any choice but to make it. The police officers' testimony disputed appellant's claims.

At the suppression hearing, after appellant had testified regarding the claimed coercion, the two Houston detectives and three of the Chicago officers unequivocally testified in rebuttal that there had been no such coercion or abuse. They acknowledged that appellant was handcuffed to a ring on the wall in the interview room. A photograph was also introduced which showed appellant standing shirtless immediately after the interrogation and confession. We note that while at various times appellant's attorney seemed to decry the presence of pants obscuring any potential marks of abuse below the waist, the photograph does not indicate that appellant had been the recipient of the claimed brutality.

Specifically, point of error number one alleges reversible error "in failing to suppress pretrial" the tape recorded statement because it was given involuntarily. Point number two avers reversible error "in failing to suppress pretrial" appellant's oral statements made while in custody on the grounds that such had been given involuntarily. ⁴ The gist of both points is that there was reversible error in failing to suppress testimony regarding appellant's statements made while in custody, both recorded and otherwise, because such were involuntary. Regarding point one, we note that the record reflects that the complained of tape recorded statement was never offered or admitted into evidence at the trial on the merits. ⁵ However, the officers' testimony at trial regarding appellant's admissions to them appears to have, at least in part, been based upon the challenged recorded statement, even though not specifically explicating that they were basing it upon such. Therefore, we reject the State's contention that the trial court's ruling on the motion to suppress the recorded statement was irrelevant.

It is axiomatic that the trial court is the sole judge of the credibility of the witnesses as well as the weight to be given to their testimony at a hearing on the voluntariness of a confession. Pyles v. State, 755 S.W.2d 98, 111 (Tex.Cr.App.1988), cert. denied, 488 U.S. 986, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988); Moon v. State, 607 S.W.2d 569, 570 (Tex.Cr.App.1980). The trial court filed findings of fact on the issue of the voluntary nature of the challenged confessions. Said findings held that appellant's oral confessions were not made under the influence of threats of violence, either direct or implied, and were given knowingly, intelligently, freely and voluntarily without any threats, compulsion, persuasion, duress, coercion or other improper influence. Obviously, the trial court chose to believe the five police officers rather than appellant. Absent an abuse of discretion, the trial court's findings will not be disturbed. Jacobs v. State, 787 S.W.2d 397, 400 (Tex.Cr.App.1990), cert. denied, 498 U.S. 882, 111 S.Ct. 231, 112 L.Ed.2d 185 (1990). After reviewing the record of the suppression hearing, viewing the above-mentioned photograph and listening to the two audio-tapes of the confession, we conclude that there was sufficient evidence to support the finding of voluntariness and find no error in the refusal to suppress appellant's oral statements. ⁶ Accordingly, we overrule points of error numbers one and two.

III. JURY CHARGE INSTRUCTIONS

Appellant's third, fourth, and fifth points of error relate to the jury charge at guilt/innocence. A careful review of the record fails to reveal any such instrument. The record does contain a notarized sworn statement from...