Woodrow Gilbert v. The State of Texas--Appeal from 82nd District Court of Robertson County

AFFIRMED

JUNE 14, 1990

NO. 10-89-243-CR

Trial Court

# 13,778

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

WOODROW GILBERT,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 82nd Judicial District Court

Robertson County, Texas

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

On January 22, 1988, Appellant executed a written statement confessing to the murder of his wife. See TEX. PENAL CODE ANN. 19.02 (Vernon 1989). On October 10, 1989, the court held a hearing on Appellant's motion to suppress the confession. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); TEX. CODE CRIM. PROC. ANN. art. 38.22(6) (Vernon 1989). Appellant claimed that his confession was inadmissible because he was incompetent at the time it was executed, and thus did not execute it voluntarily. The court overruled the motion. Subsequently, Appellant pleaded "no contest" to the charge, and was sentenced to sixty years in prison. The only point is that the court erred when it denied the motion to suppress. The judgment will be affirmed.

At a hearing on a motion to suppress a confession, the court is the judge of the credibility of the witnesses and the weight to be given their testimony. Burdine v. State, 719 S.W.2d 309, 318 (Tex. Crim. App. 1986). The court's findings will not be disturbed on appeal unless there was an abuse of discretion. Barton v. State, 605 S.W.2d 605, 607 (Tex. Crim. App. [Panel Op.] 1980). Furthermore, the state has the burden of proving by a preponderance of the evidence that the defendant voluntarily and knowingly waived his privilege against self-incrimination. Colorado v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 523, 93 L. Ed. 2d 473 (1986).

Deputy Gordon testified at the hearing that on January 10, 1988, he transported Appellant from Travis County to Robertson County pursuant to an arrest warrant. He read Appellant his Miranda // warnings when they got into the car, and he and Appellant talked the entire trip. He claimed that Appellant was coherent and understood "very well what I was talking about." During the next twelve days, Gordon saw Appellant on several occasions, and on each occasion he read him the Miranda warnings.

On January 22, Appellant asked to see Gordon, and Gordon again read him the Miranda warnings. Appellant, who was coherent, responded to questions and was able to carry on a conversation, confessed to killing his wife. Gordon told Appellant that he needed to "get it on paper," took the statement, read it back to Appellant, and had him sign it. He claimed that he did not have Appellant write the statement because he did not "feel like we could read them, and [he] didn't feel like they'd be presentable in Court because of the English."

At the hearing, Appellant offered into evidence his medical records which reflected his diagnosis as "paranoid schizophrenic and manic depression." He claimed that he heard "voices," was not able to distinguish between reality and the voices, and never understood the Miranda warnings. Appellant testified that Gordon told him to "sign [the confession]." However, when cross-examined, Appellant said he was able to understand that an attorney had been appointed to represent him and that he was charged with murder, even though he still claimed to hear voices.

Based on the record as a whole, the court did not abuse its discretion when it denied the motion to suppress. See Barton, 605 S.W.2d at 607. Point one is overruled and the judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice