Nickerson v. State
| Decision Date | 30 June 2015 |
| Docket Number | NO. 01–14–00096–CR,01–14–00096–CR |
| Citation | 478 S.W.3d 744 |
| Parties | Johnathan Ross Nickerson, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Andre L. Ligon, Joshua Willoughby, Houston, TX, for Appellant.
Devon Anderson, District Attorney-Harris County, Melissa P. Hervey, Assistant District Attorney, Harris County, Houston, TX, for State.
Panel consists of Justices Jennings, Bland, and Brown.
Johnathan Nickerson was indicted by a grand jury for the offense of capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2014). A jury found Nickerson guilty, and the trial court assessed punishment at life imprisonment without the possibility of parole. On appeal, Nickerson contends the trial court erred in (1) denying his motion to suppress the statement he made to the police; (2) entering a judgment of conviction despite insufficient evidence to support the jury's finding of guilt; (3) admitting evidence about the two other decedents who were killed at the same time as the complainant named in the charge; admitting hearsay testimony regarding his coconspirator's statements; (5) denying him effective confrontation and cross-examination of a witness; and (6) denying his motion for mistrial. Finding no error, we affirm.
On a Saturday evening in late October 2009, the Houston Police Department (HPD) dispatched officers to a park in southeast Houston to investigate a parked white Dodge Ram flatbed truck with a very loud sound coming from it. The responding officers approached the truck and found two men in, both with gunshot wounds in the head and slumped inside the front of the truck cab with blood pooling beneath them, and a teenaged male with a gunshot wound in the chest crumpled motionless on the ground beside an open passenger door. A blue cell phone sat on the ground near the teenager's body. The officers determined that the loud sound came from the truck's engine, which was running at full throttle because the accelerator pedal was depressed to the floor under the deceased driver's foot.
A crime scene investigator collected evidence from the scene, including five nine-millimeter cartridge casings, three of which were determined to have been fired from the same weapon. The deceased driver was found to have a pistol on the seat underneath his right leg, but that gun was of a different caliber. By Sunday, the homicide investigators had received information that enabled them to identify the three decedents as Miguel Morales, Narciso Briagas, and Roman Barragan, Jr., but had no investigative leads.
On Monday morning, the weekend homicide investigators handed the case off to HPD Officer E. Cisneros. Barragan's father provided HPD with his cell phone account records, which revealed that Nickerson's telephone number was the last number that was in communication with Barragan's cell phone. Cisneros searched the number on an Internet database and discovered it was linked to Nickerson.
Cisneros called the number; Nickerson answered. When Cisneros told Nickerson that he was investigating Barragan's murder, Nickerson seemed surprised. Nickerson agreed to meet with Officer Cisneros. That evening, Cisneros, accompanied by Sergeant B. Roberts, another HPD investigator, drove to Nickerson's apartment complex in an unmarked car and met Nickerson in front of the leasing office. Cisneros told Nickerson about his telephone number's appearance as the last number on Barragan's cell phone records, and Nickerson agreed to accompany the officers to the police station.
During the ride from Nickerson's home to the police station, Nickerson told Cisneros that he had been present inside the truck when the shooting took place. At the police station, Nickerson checked in as a visitor. Cisneros escorted Nickerson to an interview room in the homicide division on the sixth floor. Roberts monitored the interview from another room through a hidden video camera.
Cisneros recounted that he told Nickerson, Nickerson responded, "Yes." The recorded statement then began.
At the outset, Cisneros offered Nickerson a bottle of water, which he accepted. Cisneros again explained to Nickerson that he was going to take Nickerson's statement and asked him again if he came voluntarily to the station. Nickerson agreed that he did.
In his recorded statement to Cisneros, Nickerson admitted that he had known Barragan for about two years as a fellow classmate in high school. He did not know the other decedents. The morning of the shooting, Barragan had called Nickerson to let him know that his family had acquired several bales of marijuana; he asked Nickerson whether he wanted to buy some. Nickerson said he did not know anyone who wanted to buy such a large amount, but that he was interested in a $20 bag. He made plans to meet Barragan later at the park to make the transaction.
Meanwhile, Nickerson's cousin Robert Walton was about to go on an errand to pick up another relative, Glen Brown, who was ending his work shift at a grocery store in Pearland. While driving his mother's silver Lexus, Walton saw another cousin, David McFarland walking down the street. McFarland flagged Walton down and got into the car. Then, Walton received the call from Nickerson, who also asked Walton for a ride.
When Nickerson got into the car, McFarland asked him if he knew where he could get any marijuana. Nickerson told McFarland about the large amount of marijuana Barragan said was available, and McFarland told Nickerson he wanted five pounds. According to Walton, McFarland began talking to Nickerson about "how are we going to get it, we need to figure something out." McFarland said he had to have a gun with him, "we got to be strapped." Nickerson then called Barragan and asked him to bring five pounds of marijuana to the park.
In the meantime, McFarland located a friend who agreed to loan him an automatic handgun. He got the gun and met Nickerson at a friend's house. That evening, Barragan called Nickerson to let him know that he was on his way to the park. Nickerson and McFarland began walking to the park. On the way to the park, McFarland racked the gun. He told Nickerson he was "going to draw down on them ... I'm trying to make some money." Nickerson and McFarland approached the truck; Barragan directed Nickerson to "go around" and slide into the backseat next to him. While Nickerson was getting into the truck beside Barragan, McFarland began shooting.
Nickerson got out of the truck and ran away. Nickerson called Walton and asked if he could pick him up at a location within walking distance of the park and take him home. When Walton arrived, he noticed Nickerson was breathing hard. Walton, still driving his mother's Lexus, stopped at his home, where he and Nickerson greeted Walton's mother. Walton and Nickerson then left to attend a party at an aunt's home nearby. During the half-hour or so they were there, McFarland appeared in the street in front of the house, holding a bag of marijuana. Nickerson went to speak with him outside. He asked McFarland for some marijuana, but McFarland did not let Nickerson have any. McFarland said,
Walton and Nickerson left the party, and Walton drove Nickerson to his apartment. Nickerson went into his room and changed his clothes. He came out of the room with the clothes he had been wearing in a grocery bag and holding his shoes in the other hand. They got back into the Lexus. As Walton drove down the street, Nickerson threw his shoes out the window.
According to Cisneros, Nickerson went from being a witness to a suspect in the robbery and murder about an hour into his recorded interview, when Nickerson admitted to Cisneros that he knew that McFarland planned to "draw down" the gun on Barragan to rob him of the marijuana rather than buy it. According to Nickerson, before that point, he believed that the meeting was going to be a legitimate drug exchange and that he would get some "free weed" out of it. When McFarland racked the gun at the park, though, Nickerson realized the plan was to rob Barragan, and there was no time to negotiate his share of the marijuana before the robbery took place.
Nickerson admitted that he knew McFarland had a loaded gun with him for their meeting with Barragan. He identified McFarland as the shooter of the three decedents.
Nickerson contends that the trial court erred in denying his motion to suppress because Officer Cisneros continued to question him without providing the necessary warnings in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and article 38.22 of the Texas Code of Criminal Procedure.
We review a ruling on a motion to suppress for an abuse of discretion. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App.2013) ; Shepherd v. State, 273 S.W.3d 681, 684 (Tex.Crim.App.2008). We review a trial court's factual findings for abuse of discretion and its application of the law to the facts de novo. Neal v. State, 256 S.W.3d 264, 281 (Tex.Crim.App.2008). We defer to a trial court's determination of historical facts, especially those based on an evaluation of a witness's credibility or demeanor. Turrubiate, 399 S.W.3d at 150 ; Gonzales v. State, 369 S.W.3d 851, 854 (Tex.Crim.App.2012). We apply the same deference to review mixed questions of law and fact. Turrubiate, 399 S.W.3d at 150. When, as in this case, the trial court makes findings of fact and conclusions of law, we will uphold the trial court's ruling if it is "reasonably supported by the record and is correct on any theory of law applicable to the case." Id. (citing Valtierra v. State, 310 S.W.3d 442, 447–48 (Tex.Crim.App.2010) ). Maxwell...
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