Muhammad v. State

• Decision Date: 16 November 1995
• Docket Number: No. 06-95-00039-CR,06-95-00039-CR
• Citation: 911 S.W.2d 823
• Parties: Monsour MUHAMMAD, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 823

911 S.W.2d 823

Monsour MUHAMMAD, Appellant v. The STATE of Texas, Appellee.

No. 06-95-00039-CR.

Court of Appeals of Texas,

Texarkana.

Submitted Nov. 16, 1995.

Decided Nov. 16, 1995.

Kathi Alyce Drew, Dallas, for Appellant.

Sue Korioth and Michael J. Sandlin, Assistant District Attorneys, Dallas, for Appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Monsour Muhammad appeals from his conviction in a jury trial for the offense of murder. The undisputed evidence shows that Monsour Muhammad shot and killed Sandra Knight, a drug dealer. He was convicted of murder and sentenced to ninety-nine years' imprisonment.

Muhammad brings seven points of error in which he alleges that Batson ¹ error occurred during voir dire of the jury and that the trial court erred by failing to make written findings of fact in regard to his motion to suppress statements during custodial interrogation, by overruling his motion to suppress the confessions, and by admitting an unadjudicated extraneous offense into evidence at the punishment phase of the trial. He also contends that the evidence is factually insufficient to support the jury's determination of guilt because the evidence conclusively establishes either self-defense or voluntary manslaughter.

We first address Muhammad's contention of Batson error. Muhammad argues that the trial court erred by finding that the State offered race-neutral reasons for its peremptory strikes of the jurors involved. In our review of the court's decision, we must accept that finding unless we determine that it is clearly erroneous. Whitsey v. State, 796 S.W.2d 707 (Tex.Crim.App.1989) (on rehearing). Under the clearly erroneous standard, we are to accept the trial court's account of the evidence if it is plausible in light of the record as viewed in its entirety. Moreover, because a determination of purposeful discrimination usually depends on an assessment of the credibility of witnesses, the content of the explanation, and all other relevant surrounding facts and circumstances, the trial court's determination is entitled to great deference. Alexander v. State, 866 S.W.2d 1 (Tex.Crim.App.1993).

Although racial bias cannot be automatically imputed in every situation where one of the State's reasons for using a peremptory challenge would technically apply to another member of the venire the State found to be acceptable, it can be imputed when there is disparate treatment of the venire members as to the sole reason or primary reasons stated for the exercise of the peremptory challenge. Esteves v. State, 849 S.W.2d 822 (Tex.Crim.App.1993). The improper exclusion of even one member of the defendant's race for discriminatory reasons invalidates the entire process. Whitsey, 796 S.W.2d at 707.

Muhammad contends that two specific jurors were improperly struck by the State. Juror twenty-two was a black female, and juror forty-five was a black male. At a hearing on the defendant's Batson motion, the trial court asked the prosecutor to explain his reason for striking these jurors. The prosecutor testified he struck juror twenty-two because she had a cousin who went to the penitentiary for commission of the same type of crime being tried in this case and because she was sleeping. He also noted that he had struck another juror who had family in prison.

The prosecutor also testified he struck juror forty-five because he slept during the judge's voir dire, during his voir dire, and during the defense attorney's voir dire. He further noted that this juror failed to fill out his juror information card in numerous respects and that there was no indication that he had any roots in the community. He thus doubted that this would be a conscientious juror in the present case.

Defense counsel responded by noting that the relative who went to prison for murder was incarcerated when juror twenty-two was just a baby. He also questioned the State's comments that the jurors were sleeping. These comments, however, were confirmed by the trial court. Standing alone, the mere fact that both of these jurors were described as sleeping during voir dire constitutes a racially neutral reason for striking a prospective juror. Irvine v. State, 857 S.W.2d 920, 926 (Tex.App.--Houston [1st Dist.] 1993, pet. ref'd); see Roberson v. State, 866 S.W.2d 259, 261 (Tex.App.--Fort Worth 1993, no pet.); Solomon v. State, 830 S.W.2d 636, 637 (Tex.App.--Texarkana 1992, pet. ref'd).

Considering this evidence in the light most favorable to the trial court's ruling, it appears that no purposeful discrimination was shown in this case. This point of error is overruled.

Muhammad next contends the trial court committed reversible error by failing to make written findings of fact and conclusions of law on his suppression hearing, and alternatively argues that this Court should abate the proceeding to the trial court so that such findings and conclusions can be properly entered. Such findings and conclusions are mandatory under TEX.CODE CRIM.PROC.ANN. art. 38.22, § 6 (Vernon 1979). They require the trial court to file its findings regardless of whether the defendant does or does not object. Green v. State, 906 S.W.2d 937 (Tex.Crim.App.1995). Based upon the Court of Criminal Appeals' opinion in Green, and its unambiguous directive that such findings must be filed while the trial court has jurisdiction over the case, we abated this cause on October 12 with directions to the trial court to file such findings of fact and conclusions of law within fifteen days and return the record thereof to this Court. ² The findings have now been filed with this Court. This point of error is now moot.

Muhammad also contends that the trial court erred by overruling his motion to suppress his confession. On a motion to suppress evidence, the trial judge is the sole and exclusive trier of fact and is the judge of the credibility of the witnesses, including the weight to be given their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). This Court does not engage in its own factual review, but determines whether the trial judge's findings are supported by the record. If they are supported, this Court is not at liberty to disturb them. Etheridge v. State, 903 S.W.2d 1 (Tex.Crim.App.1994); Upton v. State, 853 S.W.2d 548 (Tex.Crim.App.1993).

Muhammad argues that the officer who took his confession improperly told him that his statement could be used for him. It has been held improper to inform a defendant that his statement could be used for him because this would constitute a form of inducement to make the statement. See Espinosa v. State, 899 S.W.2d 359, 363 (Tex.App.--Houston [14th Dist.] 1995, pet. ref'd). The Court of Criminal Appeals has held that whenever the accused's testimony reflects that he was unlawfully caused to make a written confession because an officer gave him erroneous information about the use of his statement, and his testimony was uncontradicted, then the accused's written confession was inadmissible as a matter of law. Moore v. State, 700 S.W.2d 193, 202 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 289 (1986); Espinosa, 899 S.W.2d at 362. These cases are based upon the rationale set out in Unsell v. State, 39 Tex.Crim. 330, 45 S.W. 1022, 1023 (1898), in which the Court held that to warn a defendant that his statement might be used for him would be holding out an inducement.

In the present case, the detective testifies as follows:

Q I take it you did tell him that the statement could be used either for him or against him?

A Yes, sir.

Q In other words that it could either help him or hurt him in his trial either one way or the other?

A Yes, sir. I read all the warnings that are on the beginning of the statement to him.

Q Did you assure him that if he told the truth in the statement that that could help him in his trial?

A No, I didn't. No, I just approached the Defendant and asked--I said I wanted to get his side of what happened. I didn't promise him anything in terms of whether he would receive leniency or--

Q But you did tell him that it could be used for him or against him?

A Yes, sir, I advised him of those.

The trial judge made two findings concerning this matter:

IV

The Court finds beyond a reasonable doubt that on September 23, 1994, Detective Rathjen read aloud the Miranda Warnings to the defendant from a card, State's Exhibit 1-B, exactly as they are printed on State's Exhibit number 1-B and therefore, the warnings given to the defendant did not include the phrase, "for or against."

V

The Court finds beyond a reasonable doubt that Detective Rathjen also read aloud to the defendant the pre-printed Miranda warnings at the top of the voluntary statement, State's Exhibit number 1-A, and therefore, the warnings given to the defendant did not include the phrase, "for or against."

The testimony of Detective Rathjen was interpreted by the trial court to indicate that he read Muhammad the warnings that appear in writing at the beginning of the statement signed by Muhammad, that Detective Rathjen may have been confused about exactly what those warnings said at the time he was testifying, and that the gist of his testimony was that he gave the written warning as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22 of the Code of Criminal Procedure. These written warnings were a part of the evidence in the case and included only that the statement could be used against the party making the statement. The officer's testimony and the statement in evidence are sufficient to support the findings of the trial court.

Even if the court's finding that the officer had not used the "for or against" language had no support in the record, under state law a promise will render a confession involuntary and inadmissible only if it (1) is of some benefit to the accused; (2) is positive; (3) is made or...