Reginald Bernard Johnson v. The State of Texas--Appeal from 204th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-147-CR

REGINALD BERNARD JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 204th District Court

Dallas County, Texas

Trial Court # F94-03978-VQ

O P I N I O N

Appellant Johnson appeals from his conviction for capital murder for which he was sentenced to life in the Texas Department of Criminal Justice, Institutional Division. He was charged by indictment with the murder of Indravadan Patel, committed in the course of robbery. He was sixteen-years-old at the time of the offense but was certified to be tried as an adult.

On August 4, 1994, Officer Nitchman responded to a call that a person was shot at a convenience store on Lake June Road in Balch Springs. The officer recognized the victim as Patel, the owner of the store, who was dead. He died from a gunshot wound to his head fired at close range. The telephone was disconnected, a surveillance mirror and camera were ripped from the ceiling, and the cash register was open and empty. Patel's car, a 1981 Datsun, which was parked beside the building, was missing. Two days later, the police found the car in a nearby creek bed. Fingerprints and palm prints on the car were lifted and, after Appellant was arrested, the palm prints matched Appellant's.

About 5:00 p.m. on August 21, 1994, Officer Mulcahy saw Appellant walking out of an apartment on Fordham Road. Mulcahy had information that Appellant was a suspect in Patel's murder. After Officer Mulcahy detained Appellant, Officer Terry, his partner, went to Apartment 139 in the complex where one of the other suspects, Donny Geter, lived.

Detective Sharpe with the Balch Springs police arrived and he and Officer Terry searched the apartment with the consent of Geter's aunt, the lessee. A .22-rifle with the barrel and butt sawed off, along with .22-shell bullets, was found in Geter's bedroom. This was the gun that killed Patel.

Officer Terry and other officers transported Geter and Appellant to the Balch Springs Police Department.

Detective Sharpe first encountered Appellant at the Balch Springs Police Department at 6:00 p.m. on August 21. At 6:30 p.m. Sharpe gave Appellant his Miranda warnings, along with the required warnings to juveniles, and told him he was charged with capital murder. About 9:00 p.m. Officer Smith took Appellant to his office and began to interview him. Appellant stated that he shot the victim but did not mean for the gun to go off.

About 9:30 p.m. Detective Sharpe transported Appellant to the Precinct Five courthouse. Judge Blackington, Detective Sharpe, and Appellant went to the Judge's office where the Judge read Appellant his juvenile rights as prescribed by law. Appellant stated he understood his rights and agreed to waive his right to remain silent and gave an oral statement which Detective Sharpe reduced to writing at Appellant's request. Judge Blackington testified that Appellant gave his statement knowingly and voluntarily.

Appellant's written confession, stated in pertinent part, as follows:

. . . I have asked Det. Jim Sharpe to write this for me. We caught the bus from downtown . . . LaToya had the .22 rifle in her pants. We got off the bus and walked to the store . . . me and her went into the bathroom and loaded up the gun. We went back into the store. Donnie [Geter] snatched the camera down. I was holding the gun and told the man to get the money out of the drawer. LaToya had got the money. Donnie got the keys to man's car. I was holding the gun at the man and it went off. I got in the car with Donnie and LaToya [and we drove off].

After Appellant gave his written confession, Detective Sharpe transported him back to the police department. Some of Appellant's family and friends had gathered at the police department and Appellant was allowed to sit down and talk with them. Detective Sharpe and Officer Smith heard Appellant tell his friends and family, "I shot that man and I'm going to do my time."

The trial court overruled Appellant's motion to suppress the written confession and also the oral statement Appellant made to his family, and admitted both into evidence at trial. The jury convicted Appellant and sentenced him to life in prison.

Appellant appeals on eight points of error.

Point one asserts the trial court erred in admitting Appellant's confession into evidence because Appellant was in custody four hours at the Balch Springs Police Station before being taken before a magistrate in contravention of the Texas Family Code 52.02(a).

Section 52.02(a) provides:

A person taking a child into custody, without unnecessary delay and without taking the child to any place other than a juvenile processing office designated under Section 52.025 of this Code, shall do one of the following . . .

Appellant's mother testified he was arrested after 5:00 p.m. Detective Sharpe testified he first had contact with Appellant at 6:00 p.m. at the Balch Springs Police Station, "a location that's been designated as a certified juvenile processing office." Officer Terry testified that immediately after he found the .22-rifle he transported Appellant and Geter to the Balch Springs Police Station. Thus Appellant arrived at a certified juvenile processing office in less than an hour after his arrest.

Appellant contends there was unnecessary delay between the time he arrived at the Balch Springs Police Station and when he was taken to the magistrate. Section 5.025(5) provides that a child may be detained "for the receipt of a statement by the child," and Section 52.025(d) provides that a child may be detained no longer than six hours at a juvenile processing office. Appellant did give a statement at the Balch Springs Police processing office and was there for only three hours. Point one is overruled.

Points two and three assert the trial court erred in admitting the written confession into evidence because an officer was present when the magistrate examined Appellant and the officer was present when Appellant signed the confession in the presence of the magistrate in contravention of Texas Family Code 51.09.

Section 51.09(G) provides a child's written confession is admissible if the following procedures are followed: "The statement must be signed in the presence of the magistrate by the child with no law enforcement officer present . . . except that a magistrate may require a bailiff or law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate . . . provided the bailiff or law enforcement officer may not carry a weapon in the presence of the child.

Detective Sharpe was in the chambers with the magistrate and Appellant the entire time. Magistrate Blackington testified that when Appellant was brought to his office, it was 10:00 p.m.; that he was aware that Appellant was charged with capital murder; that at this time of night no bailiff or other officer was available; and that under the circumstances, because of the security risk, Officer Sharpe was there to provide security.

Section 51.09(G) was complied with. Points two and three are overruled.

Point four asserts the trial court erred in admitting the confession into evidence because the officer present was armed when Appellant signed the confession in the presence of the magistrate in contravention of Texas Family Code 51.09.

Section 51.09(G) provides that a law enforcement officer (if present) may not carry a weapon in the presence of the child.

Detective Sharpe testified at the suppression hearing that he had a weapon on while in the magistrate's chambers but that he was wearing a black police jacket and, if he had a weapon, it was concealed underneath his clothing and out of view of Appellant. At trial he testified he did not have his gun on him but, if he did have it on, it was totally concealed by his jacket. Judge Blackington testified that while Appellant was given his warnings and signing his statement, Detective Sharpe was wearing a police jacket and that he did not know whether he was carrying a weapon, but he never saw a weapon on the detective. There was no evidence that Appellant saw or was aware the officer was armed or had a weapon.

Section 51.09(G) does not provide that an officer may not be "armed," rather it provides that the officer may not carry a weapon "in the presence of the child."

Section 51.09(G) was not violated. Point four is overruled.

Point five asserts the trial court erred by admitting the written confession into evidence as no notice was given to Appellant's mother in contravention of Texas Family Code 52.02(b).

Section 52.02(b) provides "a person taking a child into custody shall promptly give notice of his action and a statement of reason for taking the child into custody to (1) the child's parent or custodian.

Appellant's mother was promptly given notice that he was being arrested because the mother was present at the apartment when the officer arrested him. She testified that she asked the officers why he was handcuffed and the police responded they were waiting for an investigator.

In the hearing to determine whether to suppress evidence, the trial judge is the sole judge of the weight of the testimony and the credibility of the witnesses. Williams v. State, 883 S.W.2d 317, 319 (Tex. App. Dallas 1994, pet. ref'd); Miniel v. State, 831 S.W.2d 310, 315 (Tex. Crim. App. 1992), cert. denied, 113 S. Ct. 245 (1992). And absent an abuse of discretion the trial court's finding should not be disturbed. Williams, supra, at 319. Point five is overruled.

Point six asserts the trial court erred by admitting into evidence the written confession as it was the product of a prior improperly obtained confession.

Appellant did not preserve this asserted error because he did not raise the issue in the trial court. Tex. R. App. P. 52(a); Sterling v. State, 800 S.W.2d 513, 520 (Tex. Crim. App. 1990).

Moreover, the trial court properly admitted the written confession because it was voluntary under the totality of the circumstances. The written confession of a juvenile is admissible if the juvenile is given notice of this statutory rights by a magistrate before the confession is taken. Franklin v. State, 774 S.W.2d 794, 796 (Tex. App. Dallas 1989, no pet.); Tex. Fam. Code 51.09(b)(1) and (c). Point six is overruled.

Point seven asserts the trial court erred by admitting an oral confession into evidence as the "confession" was the product of custodial interrogation.

After Appellant gave his written confession he was transported back to the Balch Springs Police Station where several of his family and friends had gathered. Appellant sat down and spoke with them. Detective Sharpe testified that while Appellant was talking to his friends, he was standing near the door of the waiting room and heard Appellant say, "I shot the man and I'm going to do my time." Officer Smith was likewise nearby and testified he heard Appellant say, "Yes, I shot that man and I'm just going to do my time."

Section 51.09(d)(2) of the Texas Family Code provides that a child's statement is admissible if the statement does not stem from custodial interrogation. Clearly, Appellant's statement was not the result of custodial interrogation. Point seven is overruled.

Point eight asserts the evidence is legally insufficient to support the conviction.

In reviewing the sufficiency of the evidence we must determine whether, considering the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781, 2789; Jones v. State, 833 S.W.2d 118, 122 (Tex. Crim. App. 1992).

Appellant confessed that he killed Patel during the course of committing a robbery; he confessed to friends and family that he shot the man; and his prints were found on the victim's car which was taken by the robbers. Reviewing the evidence under the Jackson standard, we find that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Point eight is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 30, 1996

Do not publish