Franklin, Jarvis Dwand v. The State of Texas--Appeal from 263rd District Court of Harris County

Affirmed and Memorandum Opinion filed February 1, 2005

Affirmed and Memorandum Opinion filed February 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01363-CR

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JARVIS DWAND FRANKLIN, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 931,631

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M E M O R A N D U M O P I N I O N

Appellant Jarvis Dwand Franklin appeals his conviction for capital murder on the grounds that the trial court erred by: (1) denying his requested charge on the defense of necessity; (2) admitting a videotape of his confession because it was given involuntarily; and (3) admitting inflammatory photographs. We affirm.

I. Factual and Procedural Background

Millena Hebert, Edward Shelby=s fiancé, was experiencing trouble with the struts on the couple=s dark green car. She visited several auto-parts stores to price replacement struts. Millena met appellant at one of these stores. Appellant told her that he fixed cars and offered to install the struts on her car. She exchanged phone numbers with appellant but informed him that she would have to discuss the offer with Shelby. Appellant walked Millena to her car, and, as she was getting into it, appellant noticed the car=s $2,500 stereo system. When she told Shelby of appellant=s offer, he told her he did not want anyone working on the car who did not have his own shop. Over the next several months, appellant called Millena and Shelby between five and ten times offering to perform various repairs to their car.

Appellant also proposed to trade his $1,500 disk changer and CD player for Shelby=s stereo. On November 10, Shelby agreed to meet with appellant to discuss swapping stereos. That afternoon, two neighbors witnessed a dark car parked on their street for several minutes. Neither observed any struggle between the occupants. One neighbor saw a tall black male dragging an apparently lifeless Shelby out of the driver=s side of the car; both witnessed the car speeding away. Shelby died of a gunshot wound to the right side of his forehead.

Appellant was charged by indictment with capital murder for intentionally causing the death of Shelby while in the course of committing a robbery. A jury convicted him, and the trial court assessed punishment at life imprisonment in the Texas Department of Criminal Justice, Institutional Division.

II. Analysis

 A. Did the trial court err in denying appellant=s requested necessity instruction?

In his first issue, appellant argues that the trial court erred in denying his request for an instruction on the defense of necessity regarding the robbery element of his capital murder charge. Appellant contends he was entitled to the instruction because it was necessary for him to drive away in Shelby=s car to escape from Shelby after appellant shot Shelby in self-defense because Shelby began choking him.

A defendant is entitled to an instruction on any properly requested defensive issue raised by the evidence, regardless of whether the evidence is weak or strong, unimpeached or contradicted, or credible or not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). We review the evidence in support of the defensive issue in the light most favorable to the defense. Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.CAustin 2002, pet. ref=d). Conduct is justified by necessity if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm, (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct, and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. Tex. Pen. Code. Ann.' 9.22 (Vernon 2003).

Section 9.22(1) requires the defendant to first bring forth evidence of a specific imminent harm. Stefanoff, 78 S.W.3d at 501. AHarm@ means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. Id. AImminent@ means something that is immediate, something that is going to happen now. Id. at 501. Reading these definitions together, imminent harm contemplates a reaction to a circumstance that must be the result of a Asplit second decision [made] without time to consider the law.@ Id.

After reviewing the record, we conclude that the evidence at trial did not raise a fact issue as to whether robbing Shelby of his car was immediately necessary to avoid imminent harm to appellant after he shot Shelby in the head. In his videotaped confession, appellant did state that Shelby was Astill moving@ after he was shot. However, he does not argue how such might constitute imminent harm. In fact, the evidence shows: (1) appellant shot Shelby in the right temple at a range of less than two inches, while Shelby sat in the driver=s seat of his car; (2) appellant got out of the passenger side of the car, ran around the car, pulled Shelby from the driver=s side seat, and dropped his 300-pound body in the middle of the street; (3) appellant got back into the car, this time in the driver=s seat, and sped off, driving over Shelby=s body in the process. The medical examiner testified that Shelby died as a result of a gunshot wound to the head. Presuming the truth of appellant=s statements that Shelby was choking him in the car and that Shelby pulled the gun on appellant, the evidence still did not raise a fact issue as to whether it was immediately necessary for appellant to take Shelby=s car to avoid imminent harm after he shot Shelby in the head. See Ford v. State, 112 S.W.3d 788, 793 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (holding trial court did not err in denying necessity charge because evidence did not raise fact issue as to whether appellant=s actions were necessary to avoid imminent harm). Accordingly, we overrule appellant=s first issue.

 B. Did the trial court err in admitting appellant=s videotaped confession?

In his second issue, appellant contends the trial court erred in admitting a videotape showing his confession because it was given involuntarily due to his mental health issues and hours of prolonged interrogation.

We review the trial court=s decision on a motion to suppress under an abuse of discretion standard. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Whether a confession is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Appellate courts should give almost absolute deference to trial court determinations of historical fact supported by the record, especially when those findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate courts should afford the same amount of deference to trial court rulings on mixed questions of law and fact when the resolution of those ultimate issues turns on an evaluation of credibility and demeanor. Id. However, an appellate court may review de novo mixed questions of law and fact that do not fit within that category. Id.

Article 38.21 of the Texas Code of Criminal Procedure requires the statement to have been Afreely and voluntarily made without compulsion or persuasion.@ Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). In determining the question of voluntariness, a court should consider the totality of circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). A defendant=s mental deficiency alone is not determinative of the voluntariness of the confession, but is only one factor to be considered. See Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). In considering the impact of a defendant=s mental deficiency, the issue becomes whether the defendant=s mental impairment rendered him incapable of understanding the meaning and effect of his confession. See Cornealius v. State, 870 S.W.2d 169, 175 (Tex. App.CHouston [14th Dist.] 1994), aff=d, 900 S.W.2d 731 (Tex. Crim. App.1995). Further, absent evidence of police coercion related to the taking of the confession, a defendant=s mental condition alone should not render the statement involuntary on constitutional grounds. See Colorado v. Connelly, 479 U.S. 157, 163B64, 107 S. Ct. 515, 520, 93 L. Ed. 2d 473 (1986).

In this case, during trial, the trial court held a hearing outside the presence of the jury to determine the voluntariness of appellant=s confession. During the hearing, Sergeant Mehl and Officer Swainson, both of the Houston Police Department Homicide Division, testified. Mehl stated and Swainson confirmed that Mehl read appellant his Texas statutory warnings[1] and that appellant waived those rights on the tape and appeared to do so voluntarily. Both officers testified that they had no trouble communicating with appellant, that appellant appeared to understand what was going on and that neither officer threatened, coerced, or promised appellant anything in return for his confession. Mehl testified that he made extra efforts to explain appellant=s rights to him, such as telling appellant he was absolutely under no obligation to say anything. Mehl also testified that Swainson asked appellant to explain what the word Aterminate@ meant to him. Both Swainson and Mehl stated that when they explained to appellant that any statement he made could be used against him, appellant became concerned and that Swainson then explained to appellant that this was his chance to explain to the jury and the court what happened.

Mehl testified that, thirty-five minutes into the interview, he did not think he would get any information out of appellant, that he was prepared to terminate the interview, when he told appellant he had nothing further to say to him. Mehl stated that he stood to leave the room and appellant started to cry and admitted shooting and killing Shelby. Mehl then asked him whether he would be willing to make that statement on videotape and appellant agreed. Officer Swainson stated that he left the room and returned about forty minutes later. Upon his return, appellant was weeping and distraught and acknowledged his involvement.

Mehl also stated that the total time for the interrogation including the videotaped statement was one hour and twenty minutes, during which time he offered appellant the opportunity to go to the bathroom, offered him coffee, soda, and water, and provided appellant a glass of water between statements.

On cross-examination, both Mehl and Swainson stated that they did not get any information about appellant=s background with respect to education, medication, or mental health. Defense counsel introduced a competency evaluation[2] for the purpose of the hearing. Appellant also testified regarding the voluntariness of his confession that: (1) he went through tenth grade taking special-education classes; (2) he takes Depakote, Zoloft, and Zyprexa for schizophrenia; (3) he did not think he had the right not to answer their questions; (4) he was scared; (5) he did not understand the warnings; and (6) one of the officers promised him that if he talked nothing would happen to him and that was when he began confessing. The trial court viewed the videotape, in which appellant appears emotional but clearly states that he understands each right as it is read to him. The trial court found that the confession was freely and voluntarily given and in compliance with the Code of Criminal Procedure. In regard to this ruling, the trial court made the following findings of fact and conclusions of law:

Findings of Fact

1. The defendant was arrested on November 25, 2002 pursuant to a valid arrest warrant.

2. After the defendant=s arrest, Officer Eric Mehl informed the defendant of his constitutional and statutory rights listed in article 38.22, '2, of the Texas Code of Criminal Procedure. The defendant indicated he understood his rights and subsequently waived his rights and agreed to provide a statement.

3. The defendant was sober, alert, and was not mentally impaired. Though there is a reference in the defendant=s statement that he was taking medication for attention deficit disorder and schizophrenia, there is no evidence that the defendant was mentally impaired by this medication or suffering from mental imbalance at the time he gave his statement. Moreover, there is no evidence that the attention deficit disorder or schizophrenia had an effect on the voluntariness of his statement.

4. The defendant never invoked any of his constitutional or statutory rights before or after giving his statement.

5. No one coerced or threatened the defendant to make the statement. No one promised the defendant anything in exchange for his statement.

6. The officers who testified at the pretrial hearing on the defendant=s motion to suppress the statement were credible.

7. The defendant=s testimony that he did not believe he had the right to refuse to answer the questions and that the officers promised that nothing would happen to him if he told them the truth was not credible.

Conclusions of Law

1. The defendant was arrested pursuant to a valid arrest warrant.

2. The defendant=s videotaped statement was freely and voluntarily made by the defendant, without threats, promises, coercion, or other improper inducement on the part of any police officer or individual.

3. The defendant=s statement was taken in full compliance with the requirements of article 38.22 of the Texas Code of Criminal Procedure, after the defendant knowingly and intelligently waived the rights set out in article 38.22, '2, of the Texas Code of Criminal Procedure.

4. The defendant=s videotaped statement is admissible in evidence under articles 38.21 and 38.22 of the Texas Code of Criminal Procedure and under all applicable provisions of the Texas Constitution and the United States Constitution.

Given the conflicting testimony concerning appellant=s mental state at the time he made the statements and the limited duration of the interrogation, and according almost absolute deference to the trial court=s determinations of historical fact supported by the record, we conclude the trial court did not abuse its discretion in determining that appellant voluntarily made the statements. See Guzman, 955 S.W.2d at 89; Creager, 952 S.W.2d at 854B57. Accordingly, we overrule appellant=s second issue.

 C. Did the trial court err in admitting photographs of Shelby=s body?

In his third issue, appellant argues the trial court erred in admitting gruesome photographs taken of the crime scene and before and during the autopsy of Shelby=s body. Appellant asserts these photographs were irrelevant and prejudicial.

In this case, appellant complains of the admission of State Exhibits: (1) 17-24[3] depicting photos of the crime scene; (2) 50-60 showing photos of Shelby=s body at the morgue prior to the autopsy being performed; and (3) 68 and 69 showing autopsy views of the exposed brain and the bullet=s trajectory through it.[4] At trial, appellant objected on the ground that the photos were repetitious, irrelevant, and prejudicial. On appeal, appellant fails to develop his argument beyond the statement that all of the photographs were Ahighly inflammatory.@ In any event, even if the admission of these photographs were error, we will not overturn a case on a non constitutional error if, after examining the record as a whole, we have a fair assurance that it did not influence the jury or influenced them only slightly. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002). Considering the weight of other evidence, including appellant=s confession, we have fair assurance that the trial court=s admission of these photographs did not unduly influence the jury in its decision. Accordingly, we overrule appellant=s third issue.

Having overruled all of appellant=s issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed February 1, 2005.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Mehl testified that he read to appellant and appellant waived the following rights: (1) the right to remain silent and not to make any statement at all and that any statement he made may be used against him; (2) the right to have a lawyer present to advise him prior to and during questioning; (3) if he was unable to employ a lawyer, the right to have a lawyer appointed to advise him prior to and during questioning; and (4) the right to terminate the interview at any time.

[2] The evaluation, made on June 17, 2003, concluded that appellant was not suffering from symptoms of a mental defect or a mental disease of sufficient severity to prohibit him from standing trial. (RR v6 Defense Ex. 1) The evaluation also reflected that appellant reported having Attention Deficit-Hyperactivity Disorder and schizophrenia and being prescribed several different anti-psychotic medications.

[3] Appellant s argument encompasses Exhibit 24 even though the State withdrew its proffer and the photograph was never admitted into evidence.

[4] In Hayes, the Court of Criminal Appeals assessed a photo similar to the ones appellant complains of and arguably the most inflammatory, stating, Exhibit 19A depicts Rosalyn Robinson s skin pulled back around a grazing gunshot wound to the head, showing the path of the bullet as it passed through her face, fracturing her facial bone and bruising the brain. If the skin were not pulled back, the jury would not be able to see the full extent of one of her fatal injuries. The action of pulling back the skin did not make the evidence significantly more gruesome. The court also found the admission of 19A, if error, was harmless. See Hayes v. State, 85 S.W.3d 809, 816 (Tex. Crim. App. 2002).