Stone v. State, 51578

• Decision Date: 30 May 1979
• Docket Number: No. 3,No. 51578,51578,3
• Citation: 583 S.W.2d 410
• Parties: Virgil Rudolph STONE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 410

583 S.W.2d 410

Virgil Rudolph STONE, Appellant, v. The STATE of Texas, Appellee.

No. 51578.

Court of Criminal Appeals of Texas, Panel No. 3.

May 30, 1979.

Rehearing En Banc Denied July 18, 1979.

Donald W. Rogers, Jr., Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Timothy P. Alexander, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, ROBERTS and DALLY, JJ.

OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of assault with intent to commit rape under the former Penal Code, Article 1162. The jury assessed his punishment at five years.

On the evening of June 18, 1973, the complainant answered her door and was confronted by appellant who displayed a police badge and requested admittance. She complied. Once inside, appellant threatened her with a pistol, ordered her to disrobe and said he intended to rape her. The complainant removed her pants and appellant took off his as well. Complainant then asked if she could turn off the lights and stereo and appellant agreed. After turning off the lights, the complainant escaped through a back door and ran to a neighbor's house to summon help. Almost immediately thereafter, the complainant's husband arrived home and found appellant alone in the living room dressing. Appellant threatened him with the pistol and left the scene.

At the trial appellant took the stand and admitted being at the house on the night in question. He testified that he had been told that the complainant "was an easy lay," and that she had invited him in, consented to intercourse but ran from the house when her husband arrived. He also testified that he had displayed neither a badge nor handgun.

Initially, appellant contends that his oral confession was improperly admitted in violation of Article 38.22, V.A.C.C.P. ¹

The record reflects that appellant was interviewed by the police at his home and the police station. After the second interview, he requested a polygraph test. On June 21, 1973, he arrived at the Houston police station, was warned by a magistrate pursuant to Article 15.17, V.A.C.C.P., and administered a polygraph test. He was later informed that he had failed the test and that he "probably" would be charged. He was not, however, arrested at that time nor told that he could not leave.

F. O. Boulton, Jr. was investigating the incident on behalf of appellant's employer. He testified that appellant confessed to him at the police station and that he had previously agreed to and did relate the details of the confession to the police. After more questioning by the police appellant was arrested and charged with the offense.

Article 38.22, supra, provided at the time of the trial that:

"(a) The confession shall not be admissible if the defendant was in jail or other place of confinement or In custody of an officer at the time it was made, unless:

"3. In connection with said confession he makes statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed, such statement shall not be admitted in evidence, unless it is witnessed by some person other than a peace officer, who shall sign the same as a witness." (Emphasis supplied)

No tangible evidence was discovered as a result of the confession. Consequently, the issue before us is whether appellant was "in custody" at the time he made his oral confession.

The instant case is similar to Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), in which the Supreme Court of the United States retreated from the sweeping language of Miranda. In Mathiason, the defendant, a parolee, voluntarily went to the police station after being requested to do so. Once at the station he was escorted into an office and told by an officer that, although he was not under arrest, the police believed that he had been involved in a burglary. The officer falsely stated that his fingerprints were found at the scene and that his truthfulness would possibly be considered by the district attorney or judge. During the interrogation the office door was closed and a police radio in another room could be heard. The Supreme Court held that, since the defendant voluntarily came to the police station and was informed that he was not under arrest, he was not in custody "or otherwise deprived of his freedom of action in any significant way."

"Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a 'coercive environment.' Any interview of one suspected of a crime by a police officer will have coercive aspects to it simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime."

The Court went on to hold that even the false statement as to the defendant's fingerprints had nothing to do with whether he was in custody. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Hunter v. State, 590 P.2d 888 (Alaska, 1979), 24 Cr.L. 2514.

Another case closely in point is Hunter v. State, supra. There the defendant had been questioned at his home by police officers twice before and was the prime suspect. He was asked to submit to a polygraph test and he went to the police station on his own for the test. No Miranda warnings were given before the test, and the defendant stated he felt that he "had" to take the test. During the test the polygraph operator told the defendant that he was not telling the truth. After the test ended, he confessed. The Alaska Supreme Court held that the defendant was not in custody and adopted the objective standard for determining custody which requires "some actual indication of custody, such that a reasonable person would feel he was not free to leave and break off police (interrogation)."

This Court has also rejected the "focus" rule as the test for custody. See Scott v. State, 571 S.W.2d 893 (Tex.Cr.App.1978); Lovel v. State, 538 S.W.2d 630 (Tex.Cr.App.1976); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976); Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975).

In the case at bar, appellant had been interviewed by police officers twice before the day in question, at his home and the police station. On each of these occasions he had been allowed to leave. On the day of his confession, appellant went to the police station voluntarily and in his own car. He received warnings pursuant to Article 15.17, V.A.C.C.P., and was given a polygraph test. After the test was administered, appellant was advised that he had failed it and that he would "probably" be charged; however, at no time prior to the confession was appellant placed under arrest, told he was under arrest nor told that he could not leave the police station as he had done previously.

In short, based on the rationale of Mathiason, supra, and the cases cited above, appellant was not in custody at the time he made his confession. Consequently, the trial court did not err in admitting it under Article 38.22, supra, as it read at the time of trial.

The findings of fact and conclusions of law filed by the trial court should not be disturbed absent a clear abuse of discretion. Williams v. State, 566 S.W.2d 919 (Tex.Cr.App.1978); McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976). None is shown here.

Next, appellant contends that the trial court improperly allowed the State to bolster the testimony of Boulton by asking a defense witness on cross-examination about Boulton's reputation for truth and veracity.

The following exchange occurred during the State's cross-examination of a defense witness:

"Q. (By Mr. Alexander) Mr. Barrow, are you familiar with a person named F. O. Boulton?

"A. Yes.

"Q. How do you know him?

"A. He's a security person with the telephone company.

"Q. Does he work in your office?

"A. No.

"Q. Have you been associated close with him during the course of your employment?

"A. No.

"Q. How do you know him then?

"A. Only investigation of thefts and things of that nature with the telephone company.

"Q. Do you know Mr. Boulton's reputation in the community in which he resides for being a truthful person?

"A. Yes.

"MR. ROGERS: Objection, Your Honor. He's attempting to bolster his own witness and I'd like to take him on voir dire examination.

"VOIR DIRE EXAMINATION

"Q. (By Mr. Rogers) Sir, have you ever discussed with anyone Mr. Boulton's reputation as a truthful person or heard anything about whether he's truthful or not?

"A. I have heard just assumptions, not anything that was fact.

"Q. Have you actually conversed with anyone concerning Mr. Boulton?

"A. No.

"MR. ROGERS: Your Honor, we'd submit the witness is not qualified to state an opinion as to Mr. Boulton's character, truth and veracity.

"THE COURT: It goes with the weight of the testimony, admissibility. Overrule the objection."

The objection was late; there is no showing that he did not have an opportunity to object earlier.

Appellant also contends it was reversible error for the trial court to allow Officer W. F. Hoch to testify to his conclusion or opinion as to whether the complainant was fabricating her story when he talked to her at the scene of the crime because this was improper bolstering.

During cross-examination of Officer Hoch by the prosecution the following exchange occurred:

"Q. Did it appear to you she was fabricating as she told you this event?

"MR. ROGERS: Objection. That invades the province of the jury.

"THE COURT: Overruled.

"MR. ROGERS: Your Honor, if I may, it's also a conclusion on the part of the witness.

"THE COURT: It's on cross examination. Overruled.

"MR. ROGERS: Please note our exception.

"Q. (By Mr. Alexander) You may...