Ortiz Salazar v. State

• Decision Date: 04 March 1985
• Docket Number: No. 05-84-00604-CR,05-84-00604-CR
• Citation: 687 S.W.2d 502
• Parties: Lewis ORTIZ SALAZAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 502

687 S.W.2d 502

Lewis ORTIZ SALAZAR, Appellant, v. The STATE of Texas, Appellee.

No. 05-84-00604-CR.

Court of Appeals of Texas,

Dallas.

March 4, 1985.

John H. Hagler, Dallas, for appellant.

Henry Wade, Criminal Dist. Atty., Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for appellee.

Before STEPHENS, ALLEN and McCLUNG, JJ.

STEPHENS, Justice.

Lewis Ortiz Salazar, convicted by a jury of burglary of a habitation and sentenced to life imprisonment, appeals. In three grounds of error appellant contends that: (1) the co-defendant's confession was improperly admitted into evidence; (2) his own confession was involuntary; and (3) the court's charge was fundamentally defective. We disagree with each contention and, accordingly, affirm.

In his first ground of error, appellant contends that the co-defendant's confession was improperly admitted into evidence because its numerous references to "we" improperly implicated him and violated his sixth amendment right to confrontation. Although the introduction of a defendant's extrajudicial confession implicating a co-defendant violates that co-defendant's right of cross-examination secured by the sixth amendment, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), not every violation of this rule constitutes reversible error. Bass v. State, 527 S.W.2d 556 (Tex.Crim.App.1975). In this cause both defendants gave written confessions, the court deleted any reference to appellant's name in the co-defendant's confession, and the confessions were substantially similar in nature. They essentially corroborated, interlocked, and supported each other. We conclude that any error committed by admitting the co-defendant's confession was harmless beyond a reasonable doubt. Bass, 527 S.W.2d at 562. Appellant's first ground of error is overruled.

In his next ground of error, appellant contends that his confession was rendered involuntary because it was obtained as the result of an offer of leniency towards other persons. We disagree. A confession may become inadmissible if it is obtained as a result of promise to the defendant made or sanctioned by one in authority; however, the promise must be of such a character as would be likely to influence a defendant to speak untruthfully. Walker v. State, 626 S.W.2d 777 (Tex.Crim.App.1982). Our determination of the voluntariness of the confession is based on an examination of the totality of the circumstances. Alvarez v. State, 649 S.W.2d 613, 620 (Tex.Crim.App.1982). The record reflects that the "promise" of which appellant complains is a statement by officer Allison that the people who had the stolen items would not be arrested if they were not involved in the burglary or murder. The record further reflects that this made in response to appellant volunteering to tell Allison where the stolen items were being kept if Allison would assure him that nothing would happen to the people who had them. Further, appellant's response was made after Allison told him that two witnesses had stated that appellant had attempted to sell them a stereo and a television. We conclude that although the promise may have induced appellant to aid the police in the recovery of the stolen goods, it did not serve as the inducement to confess. Further, we note that this is not the type of promise that would likely to influence a person to speak untruthfully. Appellant's second ground of error is overruled.

In his final ground of error, appellant contends that the State's attempt to amend the indictment was a legal nullity; therefore, the court's failure to charge the jury that it must find all the elements...