Jacob Kluesner v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00500-CR

Jacob KLUESNER,

Appellant

v.

The STATE of Texas,

Appellee

From the 186th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-6360

Honorable Pat Priest, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: December 7, 2005

AFFIRMED

Jacob Kluesner was convicted of murder and was sentenced to sixty years imprisonment. He appeals, bringing issues of voluntariness of the confession statement, voluntariness of the consent to search, denial of the self-defense jury charge, and improper prosecutorial argument. We overrule all issues and affirm the trial court s judgment.

Background

On August 31, 2002, Detective Martinez received an anonymous phone call regarding the location of Jacob Kluesner, a suspect in the Derrick Williams murder case. After Detective Martinez located and identified Kluesner, Officer Ratcliff read Kluesner his Miranda warnings and placed him under arrest for outstanding municipal court warrants. Because Kluesner was a suspect for murder, he was transported to the San Antonio police headquarters for questioning. Officer Ratcliff, Detective Martinez, and Detective Slaughter all testified that although Kluesner smelled of alcohol, he was coherent and did not appear to be intoxicated. While under arrest for the outstanding warrants and after having been read his Miranda warnings for a second time, Kluesner gave a statement to Detective Slaughter, admitting to shooting and killing Derrick Williams.Motion to Suppress - Involuntary Statement

A. Standard of Review

When the voluntariness of a confession is challenged, the trial court must make an independent determination in the absence of the jury as to whether the statement was voluntarily made. Tex. Code Crim. Proc. Ann. art. 38.22 2(b) (Vernon 2005). The statement of the accused may be used against him if it appears it was freely and voluntarily made without compulsion or persuasion. See Jackson v. Denno, 378 U.S. 368, 378 (1964); see also Tex. Code Crim. Proc. Ann. art. 38.22 2 (Vernon 2005). Whether a statement is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000).

When reviewing a trial court s ruling on a mixed question of law and fact, such as a motion to suppress based on the voluntariness of the statement, we review de novo the trial court s application of the law to the facts of the case. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 87-89 (Tex. Crim. App. 1997). However, we afford almost total deference to a trial court s determination of historical facts supported by the record, especially when the findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 87-89. And, when there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court s ruling. Estrada, 154 S.W.3d at 607. The trial court s ruling must be upheld if it is correct under any theory of law applicable to the case. Id.

B. Deception and Promises

In his first issue, Kluesner argues that his statement to the police was involuntarily made and, because it was involuntary, it was inadmissible under the federal and Texas Constitutions and section 38.22 of the Texas Code of Criminal Procedure. // As such, he argues that the trial court erred in denying his motion to suppress. Kluesner further asserts that the methods used by Detective Slaughter in obtaining the confession violated article 38.22 of the Texas Code of Criminal Procedure. Kluesner emphasizes that Detective Slaughter informed him that he was only being arrested for the municipal court warrants and would be released after he served that time, thus, leaving an impression that Kluesner was not going to be charged with murder.

At the suppression hearing, the following testimony was given:

Detective Slaughter: I also told [Kluesner] that it did not matter what he told me, he was only going to be booked for his warrants tonight.

Defense: ... So you told him it doesn t matter what he told you?

Detective Slaughter: I told him that it didn t matter what he told me for getting booked tonight. Yes, he was getting booked tonight for the municipal court warrants.

Defense: Okay. But did it occur to you that when you made that statement he may have thought that, perhaps, everything he was telling you was not going to be used against him?

Detective Slaughter: No, no. He understood that it was going to be used against him.

***

Defense: ... Did you make any kind of a deal with him that if he would confess he could go see [his] daughters?

Detective Slaughter: He said that he had wanted to see his daughters. And I said, Well, you re going to be booked for the warrants, for the municipal court warrants. After you get out of, you know, jail, you can go see who you want to go see.

Defense: Did you ever tell [Kluesner] that you were not going to turn this case in as a murder case?

Detective Slaughter: No, sir.

Trickery or deception do not make a statement involuntary unless the method was calculated to produce an untruthful confession or was offensive to due process. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). To render a confession inadmissible upon the ground that it was induced by the promise of some benefit to defendant, such promise must be positive, and must be made or sanctioned by a person in authority and it must also be of such character as would be likely to influence the defendant to speak untruthfully. Id. In deciding this issue, we must examine the totality of the circumstances surrounding the acquisition of the statement to determine whether it was given voluntarily. Id. The ultimate question is whether Kluesner s will was overborne. See id.

Kluesner s claim in this case includes more circumstances than the making of a promise. See id. When Detective Slaughter spoke with Kluesner, he asked him whether he knew why he was at the homicide office and Kluesner responded in the affirmative, showing full understanding of the situation and the accusations against him. Detective Slaughter further asked Kluesner if he would tell him what happened, and Kluesner agreed. At that point, Detective Slaughter read Kluesner the Miranda warnings using a form 66-E, and Kluesner signed the form 66-E. After Detective Slaughter asked Kluesner whether he understood the rights on the form, Kluesner responded in the affirmative. Detective Slaughter then began questioning him. While Kluesner was explaining what had happened, Detective Slaughter was typing the statement, which resulted in a two-page confession statement. It appears that Kluesner was rather eager to make the statement because in order to type up the statement at some point, Slaughter had to ask Kluesner to slow down. After Kluesner finished his story and the statement was typed, Kluesner read it and was given the opportunity to make any changes. Thereafter, in front of civilian witnesses, Kluesner was asked whether he was coerced, threatened, or forced to give that statement, to which Kluesner responded, No. The record shows that both of the pages of the written confession statement contained the written required admonishments // and Kluesner signed both of the pages in front of the witnesses. Therefore, on its face, the confession statement complied with the requirements provided by article 38.23. After examining all of the evidence, we hold that Kluesner s will was not overborne and that his confession statement was made voluntarily.

C. Intoxication

Kluesner also argues that because he was intoxicated when he provided the statement to the police, the statement was involuntary and improperly admitted into evidence. The court of criminal appeals has held that intoxication, while relevant, does not render a confession involuntary per se.Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996). Instead, the question is whether the defendant s intoxication rendered him incapable of making an independent, informed decision to confess. Id.

The record reflects that, at the time Kluesner made the statement, he had not been deprived of his faculties and was able to make an independent, informed choice of free will. See id. Kluesner s evidence of his intoxication consists of his testimony that he had consumed a large quantity of alcohol that night. However, Officer Ratcliff, Detective Martinez, and Detective Slaughter testified that although Kluesner did smell of alcohol, he did not appear to be intoxicated and did not show any signs of confusion. All three officers testified that Kluesner was coherent, walked without any difficulty or stumbling, and walked without any assistance. Although Officer Ratcliff admitted that Kluesner s speech was slurred, he attributed it to a speech impediment. Detective Slaughter testified that he was able to have a normal conversation with Kluesner and that Kluesner was aware of what he was saying and where he was. In addition, because Kluesner attempted to fabricate certain facts about the incident, it appears that he was able to comprehend the full seriousness of his situation. Because the evidence supports the trial court s finding that Kluesner was not so intoxicated as to render his confession involuntary, we overrule this issue.

D. Compliance with Rule 38.22

In his next issue, Kluesner argues that because his oral version of the statement was typed by the detective and was not recorded, it was inadmissible pursuant to article 38.22, section 3(a) of the Texas Code of Criminal Procedure.

Article 38.22 provides that a written statement of an accused means a statement signed by the accused or a statement made by the accused in his own handwriting or, if the accused is unable to write, a statement bearing his mark, when the mark has been witnessed by a person other than a peace officer. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005) (emphasis added). Therefore, the code itself provides for situations where a statement is written by someone other than the accused; it must just be signed by the accused.

Furthermore, as long as the confession is voluntary, law officers are currently permitted to reduce defendants oral statements into writing; they are even allowed to paraphrase the statements. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). And as long as the warnings appear on the written statement, it is admissible. Id.

According to the record, Kluesner agreed to speak with Detective Slaughter about the events that took place on the night of the murder. While Kluesner was explaining what had happened, Detective Slaughter was typing the statement, which resulted in a two-page confession statement. There was no audio or video recording of the questioning. After Kluesner was finished, he was given an opportunity to read the statement and to make any desired corrections. After reading it and without making any changes, Kluesner signed both pages of the statement in the presence of civilian witnesses. Clearly, from the totality of the circumstances, the record supports the conclusion that Kluesner made a valid waiver of his rights; therefore, the trial court did not err in admitting his written statement into the evidence. Kluesner s issue is overruled.Motion to Suppress - Consent to Search

Kluesner further argues that because his consent to obtain the buccal swab was involuntarily given due to his intoxication, in violation of the federal and Texas Constitutions, the trial court erred in denying his motion to suppress.

Consent to search is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). In order to be valid, the consent must not be coerced, by explicit or implicit means, by implied threat or covert force. Id. at 228. Although the federal constitution only requires the State to prove the voluntariness of consent by a preponderance of the evidence, the Texas Constitution requires the State to show by clear and convincing evidence that the consent was freely given. Carmouche v. State, 10 S.W.3d 323, 331 (Tex. Crim. App. 2000). The trial court must look at the totality of the circumstances surrounding the statement of consent in order to determine whether that consent was given voluntarily. Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). As stated above, we show almost total deference to a trial court s findings of fact, especially when those findings are based on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89.

Recently, the Texas Supreme Court has identified factors to be considered in determining whether a person voluntarily consented to a search, including, but not limited to:

(1) whether the police displayed weapons or used physical force or other intimidating tactics, see United States v. Wyatt, 179 F.3d 532, 535 (7th Cir. 1999); Frierson v. State, 839 S.W.2d 841, 851 (Tex. App. Dallas 1992, pet. ref d); (2) whether the police engaged in misconduct, see United States v. Cherry, 759 F.2d 1196, 1211 (5th Cir. 1985); De Jesus v. State, 917 S.W.2d 458, 462 (Tex. App. Houston [14 Dist.] 1996, pet. ref d); (3) whether the police asserted a right to search, see Bumper v. North Carolina, 391 U.S. 543, 548 (1968); Dawson v. State, 868 S.W.2d 363, 368 (Tex. App. Dallas 1993, pet. ref d); (4) the degree to which the detainee cooperated with the search, see United States v. Cooper, 43 F.3d 140, 147 (5th Cir.1995); Frierson, 839 S.W.2d at 851; (5) the detainee s age, intelligence, education, and physical condition, see Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Dawson, 868 S.W.2d at 368; (6) the detainee s attitude about the likelihood of discovering contraband, see United States v. Gonzales, 79 F.3d 413, 421 (5th Cir. 1996); (7) the length of detention and the nature of the questioning, see Bustamonte, 412 U.S. at 226; (8) whether the police administered Miranda warnings, see id.; and (9) whether the detainee was aware of the right to refuse consent, see Schneckloth,412 U.S. at 226-27; Allridge v. State, 850 S.W.2d 471, 493 (Tex. Crim. App. 1991).

State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 634-35 (Tex. 2000). No single factor is dispositive. Id.; see also United States v. Morales, 171 F.3d 978, 983 (5th Cir. 1999).

On September 5, 2002, while under arrest and in handcuffs, Kluesner was brought into Detective Tim Curtis Angel s office. Kluesner was calm, did not appear to be under influence of any drugs or alcohol, and was in control of all of his faculties. Detective Angel explained to Kluesner that he was under arrest and requested his consent to obtain a buccal swab from him. After Detective Angel described the procedure and read the consent form, he advised Kluesner that Kluesner did not have to consent to the swab; Detective Angel did not, however, tell Kluesner he had a right to an attorney. While Kluesner was looking at the consent to search form, his handcuffs were removed. Detective Angel testified that he did not threaten Kluesner to obtain his consent. Without requesting a lawyer, and without any further questions, Kluesner signed the consent form. After Detective Angel opened the swab pack, he requested Kluesner to take one of them out and to swab with it either side of his cheek. Kluesner complied.

Giving consideration to all of the facts and circumstances, we conclude that the trial court did not abuse its discretion in denying Kluesner s motion to suppress.Self Defense Jury Charge

Next, Kluesner argues that the trial court erred in refusing to submit his self-defense issue in the jury charge.

It is well established that a defendant has the right to a jury instruction on any defensive issue that has been raised by the evidence, regardless of whether the evidence is weak or strong, unimpeachable or contradicted, and regardless of what the trial court may think about its credibility. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). On the other hand, if the evidence, viewed in the light most favorable to the defendant, fails to raise a defensive issue, the defendant is not entitled to an instruction on the issue. Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).
A defendant requesting an instruction on self-defense with deadly force must show: (1) he was justified in using force; (2) a reasonable person in his situation would not have retreated; and (3) he reasonably believed the use of deadly force was immediately necessary to protect himself against another s use or attempted use of unlawful deadly force, or to prevent the imminent commission of specified violent crimes. Flores v. State, 49 S.W.3d 29, 34 (Tex. App. San Antonio 2001, pet. ref d); see Tex. Pen. Code Ann. 9.31, 9.32 (Vernon 2003). In the absence of the use or attempted use of deadly force by the deceased, a section 9.32 instruction is not available to the defendant. Flores, 49 S.W.3d at 34.

Here, Kluesner argues that he raised the issue of self defense by testifying that he was afraid of Williams because Williams had used physical force against Kluesner on numerous occasions. Kluesner also testified that not long before the murder, Williams had hit him with a phone and broken his nose. In his statement, Kluesner stated that when Williams, Kluesner, and their mutual friend Quinton were in the hotel room together, Williams yelled at Kluesner and threatened him with physical force. Kluesner said that he was really scared of Williams, even terrified. Later that night, Williams left the hotel to take Quinton home and was gone for about thirty minutes. When Williams returned to the hotel room, he got into another argument with Kluesner. In his statement, Kluesner explained what had happened:

...when Derrick came in and he was yelling at me for bringing the gun. He said that was going to beat my bitch ass like I did before. He said that this time he was going to kill me and I got scared. While Derrick was talking shit, I got the gun out from underneath the mattress and put it on the table. Then he started threatening me in all kinds of ways like, F*** you and I m gonna beat your ass like I did that night. It was like f*** this and f*** that. I just got tired of it and I got tired of him. I just started thinking about everything, the physical, the mental and the emotional. I felt like I was living in hell since I was fifteen years old. I told him, Look dog, you are putting through all of this emotional stress and I m tired of it. Then he looked at me and said, F*** you. Then I picked up the gun and pointed at him and said, I m tired of what you putting me through. Then Derrick told me, F*** you. Whenever you put that gun down, I m going to beat your bitch ass like I did last time. Then I just, Bam, pulled the trigger and shot him. That s it, end of story. After I shot him, I just took off.

(emphasis added).

The record shows no evidence that Williams had a weapon with him or that he was in possession of any object he was planning to use to hit Kluesner. Furthermore, although Kluesner was supposedly threatened and afraid of Williams, Kluesner remained in the hotel room, for thirty minutes waiting for Williams s return.

Additionally, to support his argument that he was afraid of Williams, Kluesner points to the testimony of Jose Trevi o, the person who sold Kluesner the gun he used to kill Williams. Trevi o testified that when Kluesner came in to purchase the weapon, Kluesner was very upset, pissed off, and even scared. However, in his statement to the police, Trevi o did not describe Kluesner as scared ; but instead, he stated that Kluesner wanted revenge on the person who hit him and that Kluesner was upset.

The fact that Kluesner testified that he was scared before or during the argument with Williams is not evidence that he reasonably believed that use of deadly force was immediately necessary to protect himself against Williams s use or attempted use of unlawful force. See Broussard v. State, 809 S.W.2d 556, 558-59 (Tex. App. Dallas 1991, pet. ref d) ( An individual has a right to defend from apparent danger to the same extent as he would had the danger been real; provided he acted upon a reasonable apprehension of danger as it appeared to him at the time. ). Nor is Kluesner s testimony evidence that the victim used or attempted to use deadly force. Further, there is nothing in the record to indicate a reasonable person in Kluesner s circumstance would not have retreated. Therefore, the statutory defense was not raised and need not have been submitted to the jury. Id. at 645. Accordingly, the trial court did not err in failing to instruct the jury on self defense.

Improper Prosecutorial Argument

In his final issue, Kluesner contends that the trial court erred in denying his motion for mistrial based on improper prosecutorial argument at the punishment phase. We review the denial of a motion for mistrial under an abuse of discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Id.

During his closing argument at the punishment stage, the prosecutor made the following argument:

Ask yourselves this question: How long do you protect society from the defendant? You know from the evidence before you the defendant is an angry man who hurts people. And you know from the evidence whenever he gets out, he s going to hurt somebody. How long do you protect the people of this country? Can you really take the chance? You re going to pick up the paper one day and see that he killed somebody else?

(emphasis added).

Kluesner argues that referencing matters that are not in evidence, such as what the Appellant will do in the future, and not may do in the future, cannot be inferred, without more, from the evidence. We disagree.

A proper jury argument must fall within one of the four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). An improper argument constitutes reversible error when, in light of the record as a whole, it is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial proceedings. Borjan v. State, 787 S.W.2d 53, 55-56 (Tex. Crim. App. 1990). Here, the complained of argument was a proper plea for law enforcement. See id. A proper plea for law enforcement may take many forms; one of which is to argue the relationship between the jury s verdict and the deterrence of crime in general. Id. at 55. Given the record as a whole, the State s argument was not extreme or manifestly improper, and did not inject new harmful facts but was a proper plea for law enforcement. See Lopez v. State, 860 S.W.2d 938, 942-44 (Tex. App. San Antonio 1993), aff d on other grounds, 18 S.W.3d 637 (Tex. Crim. App. 2000).

In addition, Kluesner argues that it was also improper when the prosecutor made a reference to gang affiliation, something that was not part of the evidence at trial. After reviewing the record, we disagree. Again at the punishment stage of the trial, the prosecutor argued, As much as [Kluesner] wants to blame Derrick [Williams] for all his problems, ask yourself this question: You think that maybe, just maybe, being a gang member, someone associated with the Rigsby Court Gang, that that may have contributed to who he was? (emphasis added).

According to the record, Everret Henderson, who was Kluesner s juvenile probation officer, testified that Kluesner used to be associated with the Rigsby Court gang. Because Kluesner s association with a gang was part of the evidence and part of the record, it was a proper summation of the evidence argument by the State. See Borjan, 787 S.W.2d at 55. We, therefore, overrule Kluesner s final issue.

Conclusion

Having overruled Kluesner s issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

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