Ross v. State
Decision Date | 24 October 1984 |
Docket Number | No. 1061-83,1061-83 |
Citation | 678 S.W.2d 491 |
Parties | Roman Navarro ROSS, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
John R. Leigh, Dallas, for appellant.
Henry Wade, Dist. Atty., Ruth E. Plagenhoef, Molly Meredith, Paul Macaluso and Lynn Hastings, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted by a jury of the offense of voluntary manslaughter, see V.T.C.A. Penal Code Sec. 19.04, and the trial court assessed punishment at twenty years confinement in the Texas Department of Corrections. The Fort Worth Court of Appeals, pursuant to a transfer under Tex.Rev.Civ.Stat.Ann. art. 1738 (Vernon Supp.1982-1983), affirmed his conviction. Ross v. State, 658 S.W.2d 846 (Tex.App.-Fort Worth 1983).
We granted appellant's Petition for Discretionary Review to determine whether the Court of Appeals erred in holding that appellant waived his right to a hearing on the voluntariness of a written custodial statement given by him. We affirm.
While the trial court was hearing pretrial motions, the following colloquy took place between the trial court and appellant's trial counsel:
The State did not introduce appellant's written statement during its case in chief. After the State rested, appellant took the witness stand and testified in his own behalf. Appellant testified that when the deceased lunged at him from the barstool on which he (the deceased) was sitting, appellant jerked back and the gun in his hand went off. Appellant further testified that he did not intentionally pull the trigger. On cross-examination the prosecutor, without objection, "impeached" appellant with a portion of a written statement given by appellant to a police officer which read, inter alia: After this statement was read in front of the jury, the prosecutor questioned appellant concerning its contents at great length without objection. On redirect examination, appellant's counsel brought out the circumstances surrounding the taking of appellant's statement. The prosecutor further questioned appellant about the voluntariness of his statement on recross-examination.
After appellant testified, he rested his case. On rebuttal, the State called the police officer who took appellant's statement and offered the above quoted portion of the statement into evidence. The statement was admitted over a defense objection that the statement was involuntarily given by appellant.
Appellant contends that reversible error occurred when the trial court refused to conduct a hearing on the voluntariness of his statement in accordance with the dictates of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Art. 38.22, sec. 6, V.A.C.C.P.
Art. 38.22, sec. 6, supra, states in pertinent part:
Appellant relies on Page v. State, 614 S.W.2d 819 (Tex.Cr.App.1981); Reed v. State, 518 S.W.2d 817 (Tex.Cr.App.1975); and Moore v. State, 505 S.W.2d 887 (Tex.Cr.App.1974), to support his contention that his objection to the admission of his statement required the trial court to conduct the hearing prescribed by Art. 38.22, sec. 6, supra. In Page v. State, supra, we wrote:
"[T]he trial court has the duty, even in the absence of a specific request for a hearing, to respond to an objection to the voluntariness of a confession by holding a hearing on the issue and making express findings of fact and conclusions of law that decide the issue."
Id. at 821 [emphasis in original]. Reed, supra, and Moore, supra, are of similar import. However, a close examination of these cases reveals that in each case a timely 2 objection was made to the introduction of the defendant's confession. In the case at bar, an entirely different situation exists. Appellant was impeached with his written statement, without objection, before the State ever offered it into evidence. Art. 38.22, sec. 5, V.A.C.C.P., reads in pertinent part: "Nothing in this article precludes the admission of a ... voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness...." Thus, in the instant case, the issue of voluntariness first arose when appellant was impeached on cross-examination. If the appellant wanted to contest the voluntariness of his written statement, it was incumbent upon him to object to its use for impeachment purposes during such cross-examination. By waiting to object until the State offered the statement during rebuttal, appellant waived his right to a hearing on the voluntariness of his statement. Lyles v. State, 171 Tex.Cr.R. 468, 351 S.W.2d 886 (1961). 3
Appellant also contends that the pretrial colloquy between his attorney and the trial court raised a question as to the voluntariness of his statement and required the trial court to conduct the hearing mandated by Art. 38.22, sec. 6, supra. We disagree. The remark made by appellant's counsel to the judge during the pretrial colloquy, can, at best, be described as a conditional oral motion to suppress evidence.
This Court has previously held in the search and seizure context that oral pretrial motions to suppress, unsupported by evidence,...
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