Yates v. State

• Citation: 941 S.W.2d 357
• Decision Date: 12 March 1997
• Docket Number: No. 10-96-041-CR,10-96-041-CR
• Parties: James Andrew YATES, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 357

941 S.W.2d 357

James Andrew YATES, Appellant, v. The STATE of Texas, Appellee.

No. 10-96-041-CR.

Court of Appeals of Texas Waco.

March 12, 1997.

Gregg Hill, Sims, Moore, Hill & Gannon, Hillsboro, for appellant.

Dan V. Dent, District Attorney, Hillsboro, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

DAVIS, Chief Justice.

A jury found Appellant James Andrew Yates guilty of the offense of murder. See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 1994). The trial court assessed Yates' punishment at sixty years' confinement in the Institutional Division of the Texas Department of Criminal Justice.

In this appeal, Yates raises six points of error alleging that the trial court erred by: (1) overruling a motion to suppress his videotaped confession; (2) refusing to allow him to inspect the sheriff department's file which was reviewed by the sheriff prior to his pretrial testimony; (3) refusing to admit this file into evidence as a business record; (4) not ordering production of certain exculpatory evidence before trial; (5) admitting evidence of extraneous offenses; and (6) admitting a videotape depicting the recovery of the victim's body. We will affirm the judgment.

THE CONFESSION

In his first point, Yates contends that the trial court erroneously overruled a motion to suppress his videotaped confession. Specifically, he complains that the confession was obtained in violation of article 15.17(a) of the Code of Criminal Procedure. TEX.CODE CRIM. PROC. ANN. art. 15.17(a) (Vernon Supp.1997).

The record reflects that Yates and his wife, Leslie, came to the Hill County Sheriff's Department at the request of Sheriff's Lieutenant Coy West about 11:00 o'clock, a.m., on November 9, 1994 to assist West with a missing-person investigation. West was trying to locate Wendel Penney, whose mother had reported him missing on November 3. Yates talked with West, while Leslie talked with Sheriff Brent Button at the same time. West joined Leslie's interview in progress. After Button and West noted inconsistencies in Yates' and Leslie's versions of what happened, Leslie admitted that they had contrived the story which they each gave initially. She then informed the officers that she and Yates had abandoned Penney's pickup at a park in Bell County.

After considering this information, the officers determined that Yates was a suspect. At about 1:05 o'clock, p.m., Lieutenant William Kelley, Jr. read Yates his statutory warnings. See TEX.CODE CRIM. PROC. ANN. art. 38.22, § 2(a) (Vernon 1979). Yates informed Kelley that he wanted to speak with a lawyer, and Kelley terminated the interview. Yates was then arrested on a warrant issued because a motion to revoke his community supervision had been filed.

Three hours later, Yates asked to speak to the officers again. When the officers met with Yates, they recorded the interview on videotape. At the beginning of the tape, Button read Yates each of the warnings required by article 38.22. The warnings were also typed on a written waiver form which Yates signed on camera. During this interview, Yates admitted that he shot Penney twice with a shotgun. He identified the location where the shooting occurred and described the circumstances surrounding the shooting.

During the next several days, the officers continued their murder investigation. They recovered Penney's body and various personal possessions of his which Yates had disposed of in different locations. They obtained an arrest warrant for the murder and served Yates with the warrant on November 14.

Article 15.17(a) requires an officer who has arrested a person on the basis of a warrant to take the accused before a magistrate "without unnecessary delay." TEX.CODE CRIM. PROC. ANN. art. 15.17(a). The magistrate is required to advise the suspect of the charge against him and of his Miranda rights. Id. Unless the accused demonstrates a causal connection between a failure to comply with article 15.17(a) and his decision to confess, the confession is valid. Boyd v. State, 811 S.W.2d 105, 124 (Tex.Crim.App.1991). Even an unreasonable delay will not invalidate an otherwise valid confession if the accused was properly informed of his Miranda rights. Cantu v. State, 842 S.W.2d 667, 680 (Tex.Crim.App.1992).

Article 42.12, section 21(b) describes the procedure to be followed when arresting a person who has violated any condition of community supervision. TEX.CODE CRIM. PROC. ANN. art. 42.12, § 21(b) (Vernon Supp.1997). A person charged with violating community supervision should be confined until released on bail or until a hearing on the motion to revoke the community supervision is held. Id. Article 42.12, section 21(b) makes no provision for an appearance before a magistrate for the purposes set forth in article 15.17(a).

Community supervision revocation hearings are not criminal trials. Bowen v. State, 649 S.W.2d 384, 386 (Tex.App.--Fort Worth 1983, pet. ref'd). Such hearings are administrative in nature and do not result in a conviction. Id. Rather, the hearing results in "a finding upon which the court may exercise its discretion by revoking or continuing [community supervision]." Id. Texas courts have consistently held that the procedures normally attendant to the arrest of an accused person and the preliminary proceedings which follow do not apply in the same manner to a person charged with a community supervision violation. See, e.g., Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim.App.1977) (person accused of community supervision violation not entitled to examining trial); Ex parte Ainsworth, 532 S.W.2d 640, 640-41 (Tex.Crim.App.1976) (person accused of community supervision violation has no constitutional right to pre-hearing bail); McDaniel v. State, 158 Tex.Crim. 301, 302, 254 S.W.2d 785, 785 (1953) (community supervision law does not require that notice of violations be given at least 2 days before hearing as was required for service of indictments at that time).

Article 15.17(a) does not apply to Yates' arrest for the alleged violation of his community supervision. Article 42.12, section 21(b) governs that arrest. His electronically recorded confession was obtained in accordance with article 38.22, section 3. TEX.CODE CRIM. PROC. ANN. art. 38.22, § 3 (Vernon Supp.1997). For these reasons, we overrule his first point of error.

THE SHERIFF DEPARTMENT'S FILE

Yates' second and third points involve the file assembled by the Hill County Sheriff's Department during its investigation of the case. In his second point, Yates claims the court erred in denying him the opportunity to inspect the file after Button used it to refresh his memory prior to testifying at a pretrial hearing. His third point complains about the court's refusal to admit the file as a business record.

At the hearing on Yates' motion to suppress, Button testified that he had reviewed the case file in preparation for the hearing. Yates then requested that he be allowed to review the file under Rule 611 of the Rules of Criminal Evidence. ¹ See TEX.R.CRIM. EVID. 611. Upon further inquiry by the court, Button testified that he had "browsed" the entire file to refresh his recollection of the pertinent date and times.

The trial court allowed the State a brief recess during which the prosecutor and Button examined the file to determine what Button had "actually" reviewed. After this, the State provided Yates with a single sheet of paper containing photocopies of seven brief excerpts from the file. These excerpts reflect various times on November 3 apparently determined by the State to be pertinent to the interviews of Yates and Leslie. The excerpts read as follows:

SUPPLEMENT REPORT (19897.1)

Case Number: H94003 by Officer 523 (VOGT, PAUL) 11/06/94 11:50 am

ON 11/03/94 AT APPROXIMATELY 11:50 A.M. ²

At approx. 12:40 p.m. Lt. West joined the interview

At approx. 1:00 p.m. Lt. West requested Capt. Vicars of the Hill County Sheriff's Department attempt to locate White Flint At approx. 1:03 p.m. Lt. West and Lt. Kelley discussed both

At approx. 4:00 p.m. Lt. West was advised that Jimmy Yates was requesting to talk to officers because he wanted to give a statement

At approx. 1:15 p.m. Lt. West began obtaining a written statement from Leslie Yates

At approx. 4:30 p.m. Yates was transferred (sic) Facility to the Sheriff's Office

The court allowed Button to testify further that these matters were the only things he truly used when he reviewed the file in preparation for the hearing. On cross-examination, Yates laid the predicate to offer the file as a business record. See TEX.R.CRIM. EVID. 803(6).

Instead of ruling on this proffer, the court directed Button to produce the documents he reviewed in preparation for his testimony for purposes of a Rule 611 in-camera hearing. The court then ordered that these items be provided to Yates and that the remainder of the file be placed in the record for appellate review. The court refused to rule on Yates' business record proffer but noted his objection to this failure to rule.

Rule 611 provides that an opposing party is entitled to production of writings used to refresh a witness' memory. TEX.R.CRIM. EVID. 611. If the party sponsoring the witness claims "that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto." Id. In-camera review of the entire writing at issue is mandatory under Rule 611. (See Marsh v. State, 749 S.W.2d 646, 648-49 Tex.App.--Amarillo 1988, pet. ref'd).

Button clearly stated that he had scanned the whole file in preparation for the hearing. The trial court erred because it refused to personally review the entire file in camera. We must determine whether this error contributed to Yates' conviction or punishment. TEX.R.APP. P. 81(b)(2).

In assessing harm, we review the evidentiary value of the file under ...