BRANNON TYSEAN BROOKS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed November 15, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00068-CR
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BRANNON TYSEAN BROOKS, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-73456-PM
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OPINION
Before Justices Bridges, FitzGerald, and Lang
Opinion By Justice FitzGerald
        Brannon Tysean Brooks appeals his conviction for capital murder and sentence to imprisonment for life. In two issues he challenges (a) the trial court's failure to suppress one of his written statements, and (b) the admission of his conversation with an officer during book-in procedures. For the reasons set forth below, we overrule both issues and affirm the trial court's judgment.
Suppression of the “Second Statement”
        In his first issue, appellant argues the trial court erroneously admitted the second of two written statements he gave to the police on the day he was arrested. Appellant moved to suppress the statement in the trial court. At the hearing on his motion, two Dallas police officers testified: homicide detective Marvin Ned and Sergeant Joe DeCorte. We summarize their testimony in some detail.
        On August 19, 2004, police began investigating the case of three men found naked, hog-tied, and shot to death in a Dallas apartment, as well as the subsequent robbery of that apartment. At approximately 9:45 the next morning, appellant and two other individuals were arrested in connection with that investigation. A fourth person was arrested later the same day.
        The suspects were interrogated separately. Ned questioned appellant. The interview began around 10:15 that morning. Ned read appellant his Miranda   See Footnote 1  rights before any conversation began. After approximately one hour, appellant had dictated a three-page statement, and Ned had transcribed appellant's words [hereinafter, the “First Statement”].   See Footnote 2  Ned brought a civilian witness into the interrogation room and then read aloud the entire document, including the Miranda warnings printed at the top of the form. Appellant agreed the First Statement was his statement, signed every page, and initialed corrections made by Ned during the transcription. When appellant finished signing the First Statement, the witness signed it, and Ned signed it. The process was completed around noon. Ned testified the First Statement was not the product of promises to appellant or coercion by the police; appellant had given the First Statement voluntarily.         Ned left appellant in the interrogation room. The door was locked, but appellant was not handcuffed. Over the course of the day, appellant was given chips and soda. He was permitted to use the restroom as needed. He was given two cigarettes. Officers checked on him approximately every forty-five minutes during the time he was alone. Appellant did not ask for more food or cigarettes. He never asked for a lawyer
        During this same time period, the other three suspects were being questioned. DeCorte read all of the suspects' statements and conferred with the detectives doing the questioning. At approximately 6:00 p.m., DeCorte entered appellant's interrogation room, and the two talked for approximately fifteen minutes. According to DeCorte, he told appellant some of the things the other suspects were saying. He made no promises and exercised no coercion, he just told appellant the killings could not have happened the way the First Statement described; DeCorte told appellant he did not believe him. DeCorte said at that time all four suspects were denying shooting the victims.
        DeCorte left the interrogation room and told Ned that appellant had more details to add to his statement. The two officers went into the interrogation room, and appellant repeated the new information. DeCorte left, but Ned remained and wrote down appellant's words as he had earlier, creating a one-page written statement [hereinafter, the “Second Statement”].   See Footnote 3  Ned testified he followed the same procedures with the Second Statement as he had with the First Statement: he brought in a civilian witness (a different witness this time, named Sarah Walker); read the entire statement out loud, including the Miranda warnings; and had appellant sign every page and initial each correction. Then Walker and Ned signed the Second Statement. The process was completed at approximately 7:00 p.m. Again, Ned testified he had not promised appellant anything to procure the Second Statement, nor had he coerced appellant into making it. At no time did appellant ask for a lawyer.
        Appellant offered no evidence at the suppression hearing. He argued the Second Statement was not voluntary because he was subjected to an environment of coercion during the time period between the giving of the two statements. Appellant complained he was held in “virtual solitary confinement” and was not given adequate food or drink. Thus, he had not given the Second Statement voluntarily, but instead had “succumbed to the pressures exerted upon him and signed the [Second Statement].” At the end of the hearing, the trial court made the following findings of fact and conclusions of law on the record:
 
That on August 20 of 2004, the statements as shown in State's Exhibit Number 1 [the First Statement] and Number 2 [the Second Statement] were freely and voluntarily given; that the requirements of Article 38.22 of the Code of Criminal Procedure were met, the defendant's warnings were given to him; that he freely and voluntarily, knowingly, and intelligently waived those rights; that there was no coercion, no promises, no undue influence in obtaining these statements. And if State's Exhibits Number 1 and 2 are offered, they will be allowed to be admitted.
 
Both statements were offered and admitted into evidence at trial.
        We review the trial court's ruling on the motion to suppress giving almost total deference to the trial judge's determination of historical facts, but reviewing search and seizure law de novo. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). At a suppression hearing the trial judge is the sole judge of the credibility of the witnesses and of the weight to be given the testimony, and the judge may believe or disbelieve any or all of any witness's testimony. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). In this case, at the end of the hearing, all of the evidence supported the conclusion that appellant's Second Statement was given voluntarily. The trial court made the express finding that the Second Statement was not the product of coercion, indicating he believed the testimony of the officers. This finding is supported by the record, and we are bound to accept it. See id.
        Appellant did testify on his own behalf at trial, well after the Second Statement had been admitted in the State's case in chief. But appellant did not testify that he was held in a coercive environment that caused him to sign the Second Statement involuntarily. According to appellant's testimony, he slept most of the time while he was alone in the interrogation room. Instead, appellant testified that he had never given the Second Statement. He testified that the two officers were lying, that his signature had been forged, and that he had never seen Walker, the civilian witness, before. This testimony is no evidence of coercion, and does not support his argument on appeal that he “succumbed to the pressures brought to bear upon him and he signed the second written statement.”
        We conclude the trial court did not err in admitting appellant's Second Statement into evidence at trial. We decide appellant's first issue against him.
Voluntary Statements Bearing on Credibility
        After he had given the Second Statement, appellant was escorted by officers to the jail. While appellant was waiting to be booked in, he engaged in a conversation with police officer Elvira Rivera. Rivera had participated in appellant's arrest and, because she patrolled his neighborhood, had known appellant for a number of years. Rivera testified:
 
A. I told him that what - we had been talking - he had stated that he was sorry he had disappointed us. I said, well - I said, you know what just has happened, that you're under arrest for capital murder. I said this is very, very serious. And he said, yes, that he did. And I said - I said you're going to pay for what you have done, for what all of y'all have done. And he said he knew that. And I said, you understand - I said, you could have stopped it at any time, any time you could have just said no. And he said he knew he could have stopped it, but he hadn't. And I said - I said, well, you're going to pay, but not just here, Shon.[   See Footnote 4 ] I said, you're going to have to repent for what you've done. I said, if you have any beliefs about the man upstairs, you're going to have to repent and save yourself at that point because right now, I said, you're lost.
 
* * * *
 
 
Q. And he even said he could have stopped this offense from happening, but he didn't?
 
 
 
A. That's correct.
 
Appellant argues this testimony should have been excluded because it was the result of custodial interrogation by Rivera, and Rivera had not given appellant his Miranda warnings.
        The record does not indicate appellant objected to any of Rivera's testimony at the time it was given. We conclude, therefore, that appellant did not preserve error. See Tex. R. App. P. 33.1(a)(1)(A) (requiring preserved complaint to be based on “timely” objection specifying grounds).
        However, even if there had been a timely objection, we would conclude the trial court correctly allowed the officer's testimony. The record establishes that appellant had been given his Miranda warnings not once but three times that day. Even if there had been a Miranda violation, a voluntary statement by the accused that bears on his credibility is admissible as rebuttal evidence. See Tex. Code Crim. Pro. art. 38.22(5). Appellant argues his statements to Rivera were not proper impeachment because they were consistent with his having participated in the robbery, which he never denied. We disagree. As his direct examination came to a close, appellant denied having made the Second Statement, which implicated him in the actual shooting of the three victims. He acknowledged that three men had died that night, but he testified that he had not shot them, or caused the shooting, or asked anyone else to shoot them. He denied even being in the apartment when the shooting took place, and he stated that “once any of this happened, I couldn't stop it.” The record makes it clear that appellant was discussing the shootings when he made these denials, not simply the subsequent robbery. We conclude his statements to Rivera were in fact contrary to much of his testimony, and were admissible as statements that would bear on his credibility. See id.
        The trial court did not err in admitting Rivera's testimony. We decide appellant's second issue against him as well.
        We affirm the judgment of the trial court.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
060068F.U05
 
Footnote 1 Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote 2 The First Statement explained appellant had gone with two other men to the apartment to talk to three men who had tried to rape his girlfriend. Appellant admitted hitting one of the men and taking electronic equipment and leather jackets from the apartment. He also admitted helping to hog-tie the men, but he claimed he left the apartment before one of the other men shot and killed the three victims.
Footnote 3 The Second Statement acknowledged appellant attempted to shoot one of the victims, but the gun misfired. His companion who brought the gun was able to fire it and shot the three victims while appellant and his other companion watched. The statement concludes, “The reason I wanted to kill them was so they couldn't do anything to [appellant's girlfriend].”
Footnote 4 Rivera testified earlier that she knew appellant as “Shon.”