Parnell v. State, No. 2-08-001-CR (Tex. App. 3/26/2009)
| Decision Date | 26 March 2009 |
| Docket Number | No. 2-08-001-CR.,2-08-001-CR. |
| Parties | RANDY DEAN PARNELL, JR., Appellant, v. THE STATE OF TEXAS, State. |
| Court | Texas Court of Appeals |
Appeal from Criminal District Court No. 4 of Tarrant County.
Panel: McCOY, GARDNER, and WALKER, JJ.
In two points, Appellant Randy Dean Parnell, Jr. appeals his convictions for unauthorized use of a vehicle and engaging in organized crime (theft of property valued more than $1,500 but less than $20,000).2 We affirm.
The State charged Parnell with unauthorized use of a vehicle and engaging in organized criminal activity (theft of property worth $1,500 to $20,000). After a pretrial hearing, the trial court overruled Parnell's motion to suppress. Parnell pleaded not guilty at trial, but the jury convicted Parnell of both charges and assessed punishment at ten years' confinement for the unauthorized use conviction and fifteen years' confinement for the organized criminal activity conviction. The trial court entered judgment on the verdict, and this appeal followed.
In his first point, Parnell complains that his motion to suppress should have been granted and that the trial court abused its discretion by failing to make written findings of fact and conclusions of law "with respect to the admissibility of evidence and statements." In his second point, he complains that he was entitled to an article 38.23 instruction in the jury charge.
A. Suppression Hearing
Arlington Police Officer Jared Ross was the only witness to testify at the suppression hearing. For purposes of the suppression hearing, the State stipulated that in the early morning hours of January 21, 2007, Officer Ross approached Parnell and another suspect, arrested them for evading detention, handcuffed them, and placed Parnell in his patrol car.
Officer Ross testified that he read the Miranda warnings3 to Parnell when he arrested him, and then he asked Parnell whether he understood his rights. He testified that Parnell responded that he understood his rights. Then Officer Ross asked Parnell whether he wanted to waive those rights, and Parnell agreed to talk.
Officer Ross testified that there were three vehicles at the location where he arrested Parnell. He stated that the first question he asked Parnell after Parnell agreed to talk with him was "something to the effect of[,] [`A]re any of these vehicles legit [or] any of these vehicles legal?[`]" He testified that Parnell responded, "no." Before he could ask his second question, Parnell started asking about his bond amount. Officer Ross testified,
A. . . . I was initially informed by the supervisors on scene to hold off on setting a bond until we could figure out all the charges and until a detective could have a chance to talk to him. So I advised him at that time that—at that point that there was no bond set.
Q. So you—you told that to the defendant?
A. Correct.
Q. What was his response?
A. He said something to the effect of, well, if there's no bond—you know, if there's no bond, then I don't feel like talking to you guys anymore.
Q. So did you stop talking to him?
A. I did.
Q. What happened after that?
A. I closed the door, I got in my car, I drove him to the police station, transported him to the jail.
Officer Ross testified that this portion of his conversation with Parnell took place while Parnell was sitting in the back of his patrol car and Officer Ross was standing outside the patrol car. He testified that his weapon was holstered and that he did not make any promises or threats to Parnell when he spoke with him.
When they arrived at the jail, Officer Ross parked in the jail sallyport area and took out a book-in information form to fill out on Parnell. He testified that he started to collect the information for the form from Parnell, such as his name, social security number, and address, and that while asking Parnell the routine book-in questions, Parnell gave him additional information about the three vehicles. Specifically, Officer Ross testified that as he and Parnell spoke,
A. I believe at some point I explained to him more about the bond process and that he would, in fact, have a bond shortly thereafter once the detective got to talk to him and once all the charges could be, you know, figured out and all the appropriate charges could be filed, we knew what was going on. And he started becoming a little bit more relaxed and wanted to talk—seemed like he wanted to talk a little bit more at that point.
Q. So what did he say?
A. He started telling me that—he basically said that, you know, I'm going to be honest with you, or something to that effect, and basically began telling me exactly how—the chain of events for the past few hours.
Q. And what did he tell you?
A. He told me that a few hours prior to officers getting there to 811 Oak Street, that he and the other arrestee, Mr. Torres, and another Hispanic male that he just barely knew by the name of Juan started stealing cars in the neighborhood there on Oak Street.
Q. What else did he tell you?
A. He said that they started with a black Suburban over on Maple Street and they—that the Hispanic male that he knows as Juan located the car, somehow got into the car, defeated the ignition and drove the car away from that location. He said that the three of them then went to the area of Bowie Street where he saw—where Mr. Parnell saw the Jeep Cherokee parked at that address there on Bowie Street. He said that he remembers seeing the key in the ignition and that it was too tempting not to take. He said that he got in the Jeep and drove it away from the owner's house over to 811 North Oak.
Q. Okay. It was at the owner's house on Bowie Street?
A. Correct.
Q. And he drove it over to where you later . . . recovered some vehicles?
A. That's right.
Q. What else did he tell you?
A. And the last vehicle he said was the Chevy pickup truck with the Nike swoop over on Town North. He told me that—I guess Juan had located the vehicle, Juan had somehow gotten in and defeated the ignition, and that Mr. Torres then drove that pickup back to 811 North Oak Street. And shortly thereafter is when officers contacted them.
Q. Did he tell you what happened with Juan?
Q. This information that [Parnell] gave to you . . . when you were talking with him in the patrol car and in the jail . . . did you know any of that information ahead of time?
A. I didn't know any of the information to be fact. I mean, I suspected stuff.
Officer Ross testified that the police later confirmed that all three vehicles were stolen and that at least one of the vehicles was stolen around 5 a.m.—that is, a few hours before Officer Ross encountered Parnell.4 With regard to Parnell's statement that Juan forced entry and broke the ignition on the Suburban, officers on the scene reported that the ignitions were defeated on both the Suburban and the Chevy pickup truck. And with regard to Parnell's statement that he saw a red Jeep Cherokee with the key in the ignition, Officer Ross testified that the Jeep's owner told one of the officers that the key had been stuck in the ignition and that he left it that way overnight. He testified that Parnell's admissions and the subsequent discovery of corroborating facts led other officers to go to where the three vehicles were allegedly stolen and to talk with those vehicles' owners, and it led to the filing of theft of a vehicle charges against him.
After Officer Ross finished testifying, Parnell argued that his statements should be suppressed because they constituted a confession and were inadmissible under article 38.22, section 3(c) of the code of criminal procedure, claiming that the facts the police learned "don't show that a weapon was secreted," or anything else contemplated by the portion of the statute "about the police finding some secretive instrument with which the offense was committed or finding something that was unknown." The State responded that Parnell's statements were admissible under article 38.22, section 3(c) because there was no custodial interrogation by Officer Ross and because they were shown to be reliable—each one of the facts that Parnell told Officer Ross was later found to be true and there was no evidence of coercion.
The trial court overruled Parnell's motion. Parnell did not request findings of fact and conclusions of law at that time, nor does the record reflect that he subsequently filed a motion to request them.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g), cert. denied, 526 U.S. 1070 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). And the complaint made on appeal must comport with the complaint made in the trial court or the error is forfeited. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 827 (1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990).
Although Parnell now argues that "[b]ecause the statements were conditioned upon the condition of getting bond[,] they cannot be said to be legally valid or voluntary," he...
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