Jimmy Allan Speed v. The State of Texas--Appeal from 32nd District Court of Nolan County

11th Court of Appeals

Eastland, Texas

Opinion

Jimmy Allan Speed

Appellant

Vs. No. 11-02-00199-CR B Appeal from Nolan County

State of Texas

Appellee

After the trial court denied his motion to suppress a statement that he had given, Jimmy Allan Speed entered a plea of guilty before the trial court to the murder of his girlfriend=s 3-year-old son. The trial court found appellant guilty and, in accordance with the plea agreement, assessed his punishment at confinement for life. We affirm.

Appellant presents one issue on appeal: that the trial court erred when it denied appellant=s motion to suppress the statement. Appellant=s issue on appeal is directed solely at TEX. CODE CRIM. PRO. ANN. art. 38.22 (Vernon 1979 & Pamph. Supp. 2003), and he maintains that he was warned improperly under Article 38.22.

In reviewing a trial court=s ruling on a motion to suppress, appellate courts must give great deference to the trial court=s findings of historical facts as long as the record supports the findings. Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr.App.1997). Because the trial court is the exclusive fact finder, the appellate court reviews evidence adduced at the suppression hearing in the light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323 (Tex.Cr.App.2000). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra. Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo. Guzman v. State, supra; Davila v. State, 4 S.W.3d 844 (Tex.App. - Eastland 1999, no pet=n). We will not disturb a trial court=s ruling on a motion to suppress in the absence of an abuse of discretion. Oles v. State, 993 S.W.2d 103 (Tex.Cr.App.1999). An abuse of discretion occurs when the trial court acts without reference to any guiding rules or principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991).

Article 38.22 provides in relevant part:

Sec. 2. No written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:

(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of this code or received from the person to whom the statement is made a warning that:

(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;

(2) any statement he makes may be used as evidence against him in court;

(3) he has the right to have a lawyer present to advise him prior to and during any questioning;

(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and

(5) he has the right to terminate the interview at any time; and

(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed by Subsection (a) of this section.

TEX. CODE CRIM. PRO. ANN. art. 15.17 (Vernon Supp. 2003) provides in relevant part:

(a) In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested....The magistrate shall inform in clear language the person arrested...of the accusation against him and of any affidavit filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorney present during any interview with peace officers or attorneys representing the state, of his right to terminate the interview at any time, and of his right to have an examining trial. The magistrate shall also inform the person arrested of the person=s right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel.

On May 3, 2001, at 3:35 p.m., a magistrate issued a statement of warnings to appellant as required by Article 15.17. At 5:10 p.m. that same day, appellant gave a statement that he, at the time, claimed to be voluntary and that, on the face of which, he acknowledged to have been advised as follows:

1. I have the right to remain silent and not say anything;

2. Any oral or written statement I make may be used as evidence against me in court;

3. I have the right to have a lawyer present to advise me prior to and during any questioning by peace officer (sic) or attorney=s (sic) representing the state;

4. If I am too poor to hire a lawyer, then the court will appoint a lawyer for me free of charge and he he (sic) can advise me before and during any questioning;

5. I can decide to talk with anyone and I can stop talking to them at any time I want; and prior to and during the making of this statement I knowingly, intelligently, and voluntarily, waive those rights set forth in this document and having knowingly, intelligently and voluntarily waived those rights, I do hereby make the following free and voluntary statement: [Here appellant details how he pulled his girlfriend=s 3-year-old son from the couch allowing his head to hit the floor; how he continued to drag the victim around by his feet, slamming his head into various walls in the house; how he stuck his middle finger Aup [the victim s] a-s to punish him; and how he had inflicted punishment on the victim and the victim=s brother in the past by squeezing each boy=s penis. Appellant also stated that, even though he wanted to kill the victim for a moment, he was sorry that he had killed him.].

Article 38.22 prohibits the admissibility, in a criminal proceeding, of the written statement of an accused made as the result of custodial interrogation, unless it is shown on the face of the statement that the accused had received either the warning set forth in Article 15.17 or the warning set forth in Article 38.22. Here, appellant received both warnings.[1] However, it is appellant=s position on appeal that the warnings given to appellant were not satisfactory under Article 38.22.

Although he discusses various factual matters in his brief, appellant=s issue is directed at the insufficiency of the warnings under Article 38.22; and we are confined to that issue. Our review centers upon a determination of whether the warnings Asubstantially complied@ with Article 38.22. Warnings that convey, on the face of the statement, the exact meaning of the statute are sufficient to comply with the statute although the warnings contain slightly different language. Cockrell v. State, 933 S.W.2d 73, 90-91 (Tex.Cr.App.1996), cert. den=d, 520 U.S. 1173 (1997); Penry v. State, 691 S.W.2d 636, 643 (Tex.Cr.App.1985).

Appellant points out that, while the statement signed by appellant contained the words: AI have the right to remain silent and not say anything, the Article 15.17 warning first given to appellant said nothing about appellant=s right not to make any statement at all. Further, appellant argues that neither the warning on the face of the statement signed by him nor the warning administered to him by the magistrate contained the words Aat trial as set forth in Article 38.22(2)(a)(1) and that the warning given on the face of the statement, as well as the one given by the magistrate, do not contain the words Aat trial but rather use the words Ain court.

In Cockrell, the defendant made much the same complaint as appellant makes in this case. There, each page of the statement given by the defendant contained the following language:

I have the right to have a lawyer present, to advise me either prior to any questioning and during any questioning; and that if I am unable to employ a lawyer, I have a right to have a lawyer appointed to counsel with me prior to and during any questioning, and that I have the right to remain silent and not make any statement at all; and further, that any statement I make may be used in evidence against me at trail (sic) that if I decide to talk with any one, I can, and that I can stop talking to them at any time I want; the above rights are continuing rights which can be urged by me at any stage of the proceedings, and I do hereby voluntarily waive these rights and give to the said [name omitted], the person to whom this statement is being made the following statement. (Emphasis in original)

Cockrell v. State, supra at 90-91.

The defendant claimed that the warnings failed to comply with Article 38.22 because they did not reflect that the defendant=s statement could be used against him Ain court. The court held that the warnings on the face of the statement substantially complied with Article 38.22(2)(a)(1) & (2) and that the trial court did not err in admitting the defendant=s confession. Cockrell v. State, supra at 91 (citing Sosa v. State, 769 S.W.2d 909, 916 (Tex.Cr.App.1989)).

This issue has also been addressed by the Texarkana Court of Appeals. There, the defendant was advised as follows:

You have the right to have a lawyer present or advise you either prior to any questioning or during any questioning. If you are unable to employ a lawyer, you have the right to have a lawyer appointed to counsel with you prior to or during any questioning. And you have the right to remain silent and not make any statement at all. That any statement you make may and probably will be used as evidence against you at your trial. And you have the right to terminate the interview at any time.

Buckley v. State, 46 S.W.3d 333, 337 (Tex.App. - Texarkana 2001, pet=n dism=d, untimely filed). In upholding the warning, the Texarkana Court said:

The terms Aat his trial and Ain court communicate the same meaning. A trial in a broad sense covers hearings and other matters heard by the courts, including what is generally referred to as the Atrial on the merits. This term fully apprises the accused that any statements he makes can be used in a case against him. This warning substantially complies with the requirements of the statutes governing admission of an accused=s statements and is the fully effective equivalent of the statutory warnings.

Buckley v. State, supra at 338.

We agree with the holding in Buckley. Insofar as the words Ain court or Ain trial are concerned, the warning given to appellant substantially complied with the requirements of Article 38.22(2)(a). See also Campbell v. State, 885 S.W.2d 528 (Tex.App. - El Paso 1994, no pet=n); Williams v. State, 883 S.W.2d 317 (Tex.App. - Dallas 1994, pet=n ref=d); Pena v. State, 832 S.W.2d 697 (Tex.App. - Corpus Christi 1992, pet=n ref=d). But see State v. Subke, 918 S.W.2d 11 (Tex.App. - Dallas 1995, pet=n ref=d)(we note that Subke was decided prior to the court=s decision in Cockrell).

Appellant also contends that the warnings which he received were faulty in that there was no reference to his right to Aterminate the interview. The warning given on the face of the statement in this case contained no reference to the word Aterminate. As stated earlier, the statement here contained these warnings: A(1) I have the right to remain silent and not say anything....(5) I can decide to talk with anyone and I can stop talking to them at any time I want. Appellant argues that these warnings are not sufficient; he should have been told that he could stop the questioning, not merely the answering. In White v. State, 779 S.W.2d 809, 826 (Tex.Cr.App.1989), the accused was warned that: A1. You have the right to remain silent....5. If you desire to make a statement or answer questions, you have the right to stop at any time. The court held that there was substantial compliance with Article 38.22. The court cited Penry to reiterate its position that warnings which convey on the face of a statement the exact meaning of the statute, but in slightly different language, are sufficient to comply with the requirements of the statute. See Penry v. State, supra.

Because the warnings given to appellant substantially complied with Article 38.22, the trial court did not abuse its discretion when it overruled appellant=s motion to suppress. Appellant=s sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

JUSTICE

September 25, 2003

Do not publish. See TEX.R.APP.P. 47.2(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Appellant had given an earlier statement, but that statement is not involved in this appeal.