Rushton v. State

• Decision Date: 10 October 1985
• Docket Number: No. 13-84-392-CR,13-84-392-CR
• Parties: Geary RUSHTON, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 451

698 S.W.2d 451

Geary RUSHTON, Appellant, v. STATE of Texas, Appellee.

No. 13-84-392-CR.

Court of Appeals of Texas,

Corpus Christi.

Oct. 10, 1985.

Michael James Krueger, Kingsville, for appellant.

Grant Jones, Dist. Atty., Corpus Christi, for appellee.

Before DORSEY, UTTER and SEERDEN, JJ.

OPINION

DORSEY, Justice.

Appellant was found guilty by a jury of murder and was sentenced to life imprisonment and assessed a $10,000 fine.

Appellant's first ground of error alleges that the trial court erred in failing to suppress evidence obtained from appellant as the result of promises of benefit made by the District Attorney's office. Appellant argues that his oral statement and all evidence obtained because of his statement are inadmissible "fruits of the poisonous tree". See Pitts v. State, 614 S.W.2d 142 (Tex.Crim.App.1981). The statements of appellant were not introduced into evidence; rather, evidence was discovered by law enforcement officers as a result of disclosures made by him.

The partially decomposed body of a woman, later determined to be Rochelle Roby, was discovered on a deserted portion of Padre Island on March 5, 1984. Wild animals had inflicted damage on portions of the body. Various leads were explored by law enforcement officers, but the investigation had come to a standstill by March 28, 1984. The appellant was not a suspect.

During the morning of March 28, the appellant was found guilty of indecency with a child by a jury, and had elected to have the jury set his punishment, which, through enhancement, would range from 5 to 99 years, or life. Two burglary indictments were also pending against the appellant at that time.

Appellant's attorney in the indecency with a child case, Mr. Ron Barroso, contacted the District Attorney's office at the behest of his client in the late morning of March 28, and indicated that his client was a witness to the Roby murder. A bargain was struck between appellant and his attorney and the State, represented by its Assistant District Attorney, early that same afternoon. Before the appellant gave any information, it was agreed that, if Rushton was truthful and his story was supported by the physical evidence and if he had not participated in the murder, the District Attorney would dismiss the pending burglary charges and recommend probation in the indecency with a child conviction. Omitting the particular details, the State promised that Rushton would not go to prison if he kept his end of the bargain.

After securing the agreement, Rushton and his attorney met with Assistant District Attorney Bill May and several police officers, who were familiar with the investigation, during the afternoon of March 28. The next day, the appellant accompanied police officers to the scene of the crime. Upon returning to the police station, the appellant was arrested for the murder of Rochelle Roby at the direction of Assistant District Attorney May, and then warned of his Miranda rights.

The information given by the appellant lead to the seizure in Dallas, Texas, of his automobile in which the victim rode, the location of Rochelle Roby's car in Kingsville, the location and arrest of the accomplice, Carl Lackey, as well as other peripheral witnesses.

Mr. May testified that he knew immediately upon hearing appellant's story that something was wrong because the story did not comport with the physical evidence. Through information given by the appellant, authorities located and questioned Carl Lackey, who had been identified by appellant as the perpetrator, and whose version of the facts was consistent with the physical evidence.

The promise of benefit rule states that an incriminating statement is rendered inadmissible if it is induced by promises which are (1) positive, (2) made or sanctioned by someone in authority, (3) of some benefit to the accused, and (4) of such character as would be likely to influence the accused to speak untruthfully. Hardesty v. State, 667 S.W.2d 130 (Tex.Crim.App.1984); Washington v. State, 582 S.W.2d 122 (Tex.Crim.App.1979); Fisher v. State, 379 S.W.2d 900 (Tex.Crim.App.1964); See TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979). This policy is intended to protect innocent parties from being coerced into confessing to crimes they did not commit by making such involuntary confessions inadmissible. See Washington v. State, 582 S.W.2d 122 (Tex.Crim.App.1979); Fisher v. State, 379 S.W.2d 900, 902 (Tex.Crim.App.1964).

Hardesty and the other "promise of benefit" or "induced confession" cases cited herein are inapplicable to the case at bar. Article 38.22 of the Code of Criminal Procedure, upon which this rule is based, specifically excludes from its restrictions all statements that do not stem from custodial interrogation and all voluntary statements. The statement made by appellant was not custodial and was certainly voluntarily made, as the appellant contacted law enforcement officers in anticipation of making a "deal."

In Brooks v. State, 580 S.W.2d 825 (Tex.Crim.App.1979), appellant voluntarily went to the police station to offer information about multiple murders committed by Elmer Wayne Henley, Jr. and Dean Corll after hearing on the news that Henley shot Corll. Defendant had not been suspected of any involvement in the murders and was free to go when he completed his statement. The Court of Criminal Appelas held that defendant's statement was not the result of a custodial interrogation and was not barred by Article 38.22 of the Code of Criminal Procedure. Such was also the case when Geary Rushton gave his statement to Assistant District Attorney Bill May. Appellant's first ground of error is overruled.

Appellant's second ground of error complains of the admission of evidence of extraneous offenses, specifically, evidence of an unrelated criminal case in the 319th District Court of Nueces County, Texas, and activities that could be construed as an attempted escape.

Jose Longoria, an attorney from Corpus Christi, testified that he saw Rushton in court and heard his case called on May 21, 1984, approximately 8 weeks after Rushton's arrest for capital murder. Appellant's attorney objected, and the court ordered the jury to disregard. A motion for mistrial was overruled. Mr. Longoria later testified that the appellant Rushton was in the custody of Sheriff's deputies while in court that day. Objection was made, which was overruled. Longoria said that he later observed Rushton outside the courtroom unaccompanied by a bailiff or sheriff's deputy. Assistant District Attorney Larry Coffey testified that he and a deputy sheriff saw the appellant, who should have been in custody, get into an elevator, and they took appellant into custody again.

In this ground of error, appellant complains of the admission of several bits of evidence. The first testimony that he complains of is Mr. Longoria's statement that he heard Rushton's name called on a case in the 319th District Court and that the appellant was in court that day in custody of law enforcement officers. We hold that the evidence complained of does not necessarily raise the inference that the appellant was charged with other extraneous offenses; however, if it did, the court's instruction to the jury to disregard cured any such implication of an extraneous offense. Kelley v. State, 677 S.W.2d 34, 36 (Tex.Crim.App.1984); Davis v. State, 642 S.W.2d 510, 512 (Tex.Crim.App.1982).

Appellant also complains of the evidence of Rushton stepping into an elevator in the courthouse not accompanied by law enforcement officers and being taken from the elevator by a deputy sheriff as being evidence of an attempted escape. The testimony was introduced without objection on that basis, although objections were interposed as hearsay, leading, etc. The ground of error was not properly preserved for appeal. Beck v. State, 682 S.W.2d 550, 553 (Tex.Crim.App.1985); Euziere v. State, 648 S.W.2d 700, 703 (Tex.Crim.App.1983).

Evidence of escape from custody and flight is generally held to be admissible on the issue of guilt, even though it may show the commission of other crimes. Thompson v. State, 652 S.W.2d 770 (Tex.Crim.App.1981); McWherter v. State, 607 S.W.2d 531 (Tex.Crim.App.1980); Whittington v. State, 580 S.W.2d 845 (Tex.Crim.App.1979). To have such evidence excluded, the defendant must affirmatively show "that the escape and flight is directly connected to some other transaction and further show that it is not connected with the offense on trial." Hodge v. State, 506 S.W.2d 870, 873 (Tex.Crim.App.1973). See Rumbaugh v. State, 629 S.W.2d 747 (Tex.Crim.App.1982). Appellant did not attempt to meet the burden imposed by Hodge.

Appellant's second ground of error is overruled.

Appellant's third ground of error alleges that the trial court erred in failing to instruct the jury on the lesser included offenses of involuntary manslaughter and criminally negligent homicide.

A two part test is used to determine whether a charge on a lesser included offense is required. First, the elements of the lesser included offense must be included within the proof necessary to establish the offense charged. Second, there must be evidence that, if the defendant is guilty, he is guilty only of the lesser offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Salinas v. State, 644 S.W.2d 744, 745 (Tex.Crim.App.1983). The court must consider all of the evidence and if it raises an issue that a lesser included offense may have been committed then the instruction must be submitted to the jury. Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App.1984).

Appellant was found guilty of intentionally or knowingly causing the death of Rochelle Roby by asphyxiating her. A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. A person acts knowingly when he is aware of the nature of his conduct and is aware that his conduct is reasonably certain to cause the...