Sterling v. State

• Citation: 830 S.W.2d 114
• Decision Date: 22 April 1992
• Docket Number: No. 70829,70829
• Parties: Gary STERLING, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 114

830 S.W.2d 114

Gary STERLING, Appellant, v. The STATE of Texas, Appellee.

No. 70829.

Court of Criminal Appeals of Texas,

En Banc.

April 22, 1992.

Kerri K. Anderson-Donica, Corsicana, for appellant.

Patrick C. Batchelor, Dist. Atty., Corsicana, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MALONEY, Judge.

Appellant was convicted of capital murder, specifically, murder committed in the course of a robbery in Navarro County, Texas. V.T.C.A. Penal Code, § 19.03(a)(2). The jury answered the two issues submitted to it in the affirmative and appellant was sentenced to death. Article 37.071 § 2(b) and (c) V.A.C.C.P. On direct appeal, appellant raises seven points of error. We hold that all are without merit and affirm his conviction.

Although appellant does not challenge the sufficiency of the evidence, to facilitate a better understanding of this case, we will briefly discuss the facts in the light most favorable to the verdict. The evidence presented at trial showed that in Navarro County appellant struck the deceased in the head with a bumper jack, causing his death. Appellant was also shown to have taken the deceased's automobile, cash, and wallet. Appellant later sold the automobile for cash. Appellant was arrested in connection with a separate offense in an adjoining county. While in the custody of the adjoining county authorities, appellant stated that he wanted to tell the proper authorities about a deceased person in Navarro County. Upon contacting Navarro County authorities and after being warned by a magistrate, appellant led the authorities to the location of the body of the deceased. Appellant admitted shortly thereafter in a written statement that he had killed the deceased and had taken his money, wallet and automobile.

In his first point of error, appellant challenges the admission into evidence of appellant's oral statements, whereby appellant directed the authorities to the deceased's body and implicated himself in the killing. Appellant claims that the oral statements were not admissible because he did not voluntarily waive his right to self-incrimination under Faulder v. State, 611 S.W.2d 630 (Tex.Cr.App.1979) (opinion on State's Motion for Rehearing), cert. denied 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980), and was not given the requisite warnings under Article 38.22 V.A.C.C.P.

Where a suspect invokes his right to remain silent in the course of interrogation, questioning must stop. Michigan v. Mosley, 423 U.S. 96, 101, 96 S.Ct. 321, 325, 46 L.Ed.2d 313 (1975); Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); Faulder, 611 S.W.2d at 639. If an accused's request to discontinue questioning is not honored, a subsequent confession is inadmissible. Faulder, 611 S.W.2d at 639-40. In Faulder v. State, officers continually interrogated the suspect over a period of several hours despite the suspect's repeated objections that he wanted to wait a couple of days or hours before talking to them about the offense. Faulder, 611 S.W.2d at 636-38. The testimony from all of the witnesses confirmed the suspect's requests to suspend questioning. Id. at 635. We held that the failure of the officers to cease questioning in light of the suspect's efforts to invoke his right to remain silent was offensive to the long-standing guidelines set forth in Miranda v. Arizona. Id. at 640-42.

In contrast to the interrogation that took place in Faulder, the record here does not reflect that appellant attempted to invoke his right against self-incrimination at any time. Neither of the two officers who testified stated that appellant made any effort to assert his right to remain silent. Texas Ranger Clayton Smith testified that appellant affirmatively waived his rights prior to leading the officers to the deceased's body. Officer James Jones testified that appellant affirmatively waived his rights prior to his oral confession and prior to giving a written statement. The record does not reflect the existence of any promise, threat or coercion on the part of the officers. In the absence of evidence to the contrary, the record supports the trial court's finding that the challenged oral statements were made voluntarily. Hughes v. State, 562 S.W.2d 857, 863 (Tex.Cr.App.1978), cert. denied 439 U.S. 903, 99 S.Ct. 268, 58 L.Ed.2d 250 (1978); Myre v. State, 545 S.W.2d 820, 824 (Tex.Cr.App.1977); McKittrick v. State, 541 S.W.2d 177, 184 (Tex.Cr.App.1976). We are not at liberty to disturb the trial court's findings of fact where they are supported by the record. Dunn v. State, 721 S.W.2d 325, 336 (Tex.Cr.App.1986); Beasley v. State, 674 S.W.2d 762, 768 (Tex.Cr.App.1982); Green v. State, 615 S.W.2d 700 (Tex.Cr.App.1980), cert. denied 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981).

Further, the record does not support appellant's allegations that he was not properly warned by a magistrate prior to his oral statements and written confession. Both Officer Jones and Ranger Smith testified that appellant received the requisite warnings from a magistrate on the same day but prior to the time that he made his statements. Pursuant to a pre-trial hearing on appellant's motion to suppress the oral statements, the trial court found that appellant was lawfully arrested pursuant to a warrant, was duly warned of his rights in compliance with Article 38.22 V.A.C.C.P. prior to his statements, knowingly and affirmatively waived his rights and further that appellant's oral statements were voluntary and were not the result of any promise, threat or coercion on the part of the officers. The trial court's findings are supported by the record and accordingly, we will not disturb them. Dunn.

Appellant further argues that the defective oral statements vitiated his later written statement under the "fruit of the poisonous tree" doctrine, set forth in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, since appellant's arrest and custody were authorized and his statements were voluntarily made, there was no "primary taint" under Wong Sun which would render his written statement inadmissible. Goodwin v. State, 799 S.W.2d 719, 728-29 (Tex.Cr.App.1990), cert. denied 501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991) (where "there is no 'poisonous tree', there is no 'poisoned fruit' "). Appellant's first point of error is overruled.

In point of error number two, appellant claims the trial court erred in overruling his objection "to the presence of seven uniformed deputies in the courtroom." Appellant characterizes the seven officers as an "armed camp" and argues that their presence violated appellant's Sixth Amendment right to be tried by an impartial jury and interfered with appellant's presumption of innocence. ¹

Allegations of an "armed camp" were addressed by the United States Supreme Court in Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), where the defendant pointed to the presence of four uniformed and armed troopers as so inherently prejudicial that he was denied his constitutional right to a fair trial. The Court distinguished the presence of guards from a shackling scenario, stating that "while shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable." Holbrook, 475 U.S. at 569, 106 S.Ct. at 1346. The Court held that the visible deployment of security personnel during trial was not inherently prejudicial, but required a case-by-case analysis. The Court noted that

[j]urors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards ... 'reason, principle, and common human experience' ... counsel against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial."

Holbrook, 475 U.S. at 569, 106 S.Ct. at 1346. The Court concluded that four uniformed troopers seated quietly in the front row of the spectator section of the courtroom did not present a threat to the six defendants' right to a fair trial. Holbrook, 475 U.S. at 571-72, 106 S.Ct. at 1347-48.

This court has also distinguished the presence of guards from a shackling scenario, concluding that the presence of guards is not "as inherently prejudicial as shackling." Marquez v. State, 725 S.W.2d 217, 230 (Tex.Cr.App.1987), cert. denied 484 U.S. 872, 108 S.Ct. 201, 98 L.Ed.2d 152 (1987) (defendant sought to suppress the introduction of a videotape at the punishment phase of trial which showed the defendant in the escort of several armed guards). We have also held that the presence of armed guards is justified when there is a threat to courtroom security. Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Chappell v. State, 519 S.W.2d 453 (Tex.Cr.App.1975). The Second Court of Appeals addressed "armed camp" allegations in Carrasquillo v. State, 742 S.W.2d 104 (Tex.App.--Fort Worth 1987, no pet.), where there were four officers in the courtroom, seated behind and next to the defendant. The court concluded that the presence of the officers was not of a nature "inherently lacking in due process" because "there was no showing that [the officers] caused any confusion or distracted the attention of the jurors." Id. at 112.

Since the presence of armed guards is not inherently prejudicial, appellant must show actual prejudice. Holbrook. Appellant does not point to any disturbance or confusion caused by the presence of the officers. The record does not reflect the location of the officers in comparison to appellant or any fact regarding their weaponry or "conspicuous nature" ...