Port v. State, 3-85-191-CR

• Decision Date: 12 August 1987
• Docket Number: No. 3-85-191-CR,3-85-191-CR
• Citation: 736 S.W.2d 865
• Parties: David Isador PORT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 865

736 S.W.2d 865

David Isador PORT, Appellant, v. The STATE of Texas, Appellee.

No. 3-85-191-CR.

Court of Appeals of Texas,

Austin.

Aug. 12, 1987.

Rehearing Denied Sept. 16, 1987.

Jack B. Zimmermann, Randall B. Clark, Law Offices of Jack B. Zimmermann, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, Asst. Dist. Atty., Houston, for the State.

Before EARL W. SMITH ^*, GAMMAGE and ABOUSSIE, JJ.

ABOUSSIE, Justice.

David Isador Port was convicted of the offense of murder. Tex.Pen.Code Ann. § 19.02 (1974). The jury assessed Port's punishment at 75 years in the Texas Department of Corrections and ordered him to pay a $10,000 fine. Because the trial court admitted into evidence oral statements made by Port following his arrest which were inadmissible under the rules governing criminal procedure and contrary to rulings by the Texas Court of Criminal Appeals, which we are bound to follow, we must reverse the judgment and remand the cause for a new trial.

In appellant's first two points of error, he asserts that the trial court erred in overruling his pre-trial motion to suppress certain oral statements made by him following his arrest and in permitting these to be introduced before the jury. Appellant specifically argues in his second point that his motion should have been granted because the statements were not taken in conformity with Tex.Code Cr.P.Ann. art. 38.22 § 3 (Supp.1987) and did not fall within any exception to the rule of exclusion. We must sustain appellant's second point of error and thus need not address his remaining complaints other than his third point of error, which asserts that the evidence is insufficient to sustain the jury verdict finding him guilty.

Because of the ruling by the United States Supreme Court in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Texas Court of Criminal Appeals has held that a challenge to the sufficiency of the evidence should be considered before disposing of a case, even when reversal may be based upon other grounds. Selman v. State, 663 S.W.2d 838 (Tex.Cr.App.1984). Following the order in which the Court of Criminal Appeals considered similar complaints in Dunn v. State, 721 S.W.2d 325 (Tex.Cr.App.1986), we first address appellant's challenge to the sufficiency of the evidence.

Debra Schatz, a postal carrier, was delivering mail on her postal route on June 7, 1984, when she disappeared. A supervisor drove her route twice that evening, but he was unable to locate either Schatz or her vehicle. On the morning of June 8, one of Port's neighbors reported that a postal vehicle had been parked on her street overnight. Police and postal inspectors arrived to investigate. Port's father summoned police to his home to report that Port, who is a diabetic, was missing, and that there were bullet holes in the home. He showed police six guns which he had removed from appellant's room. Appellant's father delivered to Sgt. Collier a .22 Ruger pistol which he had removed from appellant's bedroom and which smelled as if it had been fired. Collier gave the pistol to Officer Sauceda, who locked it in the trunk of her police vehicle. Tests later proved that a bullet fired from this pistol caused the death of the victim.

During a search of the Port home, the officers found a bloody tennis shoe print in the garage. A tennis shoe which Port's mother identified as belonging to appellant matched the print. Bloodstains were found in the hallway between the front door and the garage. There were bullet holes in the stairwell. A fingerprint taken from the doorjamb of appellant's upstairs bedroom was later identified as that of the deceased.

In light of what police had discovered at the Ports' home on June 8, they issued a bulletin seeking appellant as a possible homicide suspect. At about 2:00 p.m., appellant was seen by police approaching his home in his automobile. Before reaching the house, however, he turned his car and fled, pursued by Officers Sauceda, Waltmon and Harris, who apprehended him in an apartment complex parking lot. Appellant was arrested at gunpoint and handcuffed. He was then placed in the back seat of Sauceda's car, where Officer Harris read Port his Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After the officers satisfied themselves that Port understood his rights, they immediately began questioning him. Waltmon first asked appellant whether he had killed the female postal carrier, to which Port responded, "Yeah, I shot her." When asked what he had done with the body, appellant responded that he had thrown it in a nearby bayou. Port's verbal responses to police questioning at the time of his arrest were excluded from evidence by the trial court. From the time of Port's initial arrest until the time they left the parking lot, a period of about fifteen minutes expired.

Port then directed postal inspector Bill Mason, Waltmon and Sauceda in the car to a bayou where he claimed he had disposed of Schatz' body. In fact, the body was found instead about midnight that night in a field several miles away. Police continued to question Port in the police car during the drive to the bayou. Waltmon asked Port how he had killed Schatz, and appellant replied that he had shot her in the head with a .22. In the vehicle and after arrival at the bayou, in response to questions, Port described how the victim had gone up to his room, how he shot her as she tried to escape downstairs and how he cleaned up the house afterwards. Port also explained how he supposedly disposed of the body, sometimes volunteering apparently false information. After searching the area without success for about fifteen minutes, Port was taken downtown. All oral statements made by appellant up to this point were excluded from evidence by the trial court's ruling.

At approximately 2:45 p.m. on June 8, roughly 30 minutes after appellant's arrest, Officer Sauceda drove Port in her patrol car from the bayou to the police station in downtown Houston. The trip lasted about twenty-five minutes in heavy traffic. Sauceda had been present throughout Port's questioning to this point. On the way to the station, after about ten minutes of silence and in response to no question by Sauceda, appellant told her:

You know, I don't remember everything that happened, but I do remember walking her up the stairs with my gun. I know she was afraid. But when I got to the top, she fell. You see, she was trying to get away; so, I grabbed her by the blouse. She kept struggling; so I went back up the stairs and I looked down and I started shooting at her. I know I missed her many times, but I know I hit her at least two times, maybe on the head, I don't know. I just looked at her for a long time. Then I went downstairs, and I knew she was dead.

This oral statement was admitted into evidence at Port's trial. The State takes the position that this statement was volunteered and not a response to custodial interrogation. Immediately after the statement was made, Sauceda asked appellant more questions, and appellant responded to them, but while the trial court ruled that these further oral statements Port made to Sauceda were admissible, these responses were not offered into evidence at trial.

Earlier that morning, Sauceda had placed in the trunk of her car the .22 caliber pistol which had been retrieved from appellant's home and which police believed to be the weapon employed in the crime. When Sauceda and Port arrived at the police station, Sauceda opened the trunk and placed the pistol in view on top of her clipboard and then opened the door for appellant. As he was getting out of the car, Port asked Sauceda, "Is that my gun?" Sauceda asked Port, "Do you recognize it?", to which appellant responded, "Yes, that is the one I used to kill her." The trial court also permitted these statements of appellant to be admitted into evidence. The State denies that this information resulted from custodial interrogation, but if so, the State argues that any error is harmless. At the police station, questioning of Port continued, but the trial court excluded from evidence these further oral statements. Port's statements were never electronically recorded nor did he sign a written statement.

After the television news the evening of June 8, a wrecker driver called police to report that he had seen appellant on the news broadcast and recognized him as the person whose car he had towed before noon earlier that day. He led the police to a location where he had towed the car from a field. Physical evidence determined that it was appellant's car which had been stuck in the field. The victim's body was discovered in the field nearby, along with bloody trash bags and other physical evidence. A button was missing from the deceased's pants, and a button matching others on her pants was found in the trunk of appellant's car.

An autopsy determined that the deceased died from two gunshot wounds to her head. Tests confirmed that one of the shots was fired from the .22 pistol recovered from the Port home and placed in Officer Sauceda's trunk. One of Port's neighbors later claimed that at about 2:30 or 2:45 p.m. on June 7 she heard a woman scream twice "in terror," though she did not report this fact until much later. The victim's body was placed in the morgue about 3:15 a.m. on June 9. The medical examiner testified that he estimated death at between 12 and 24 hours earlier, while the pathologist testified that he estimated the time of death was 18 to 24 hours prior thereto.

In determining the sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Carlsen v. State, ...