Kenneth Ray Howell v. The State of Texas--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-97-018-CR

KENNETH RAY HOWELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 30,476

O P I N I O N

Appellant Howell appeals from his conviction for attempted capital murder for which he was sentenced to life in the Texas Department of Criminal Justice-Institutional Division and a $10,000 fine.

Late in the afternoon of June 16, 1995, Donna Emery returned from shopping at the Outlet Mall in Hillsboro to her home in Covington. It was hot and she was tired. She turned on an air conditioner in her bedroom and lay down on the bed. She heard someone on her porch. She went to the door. Appellant was on her porch. He discussed with her the purchase of her home. He asked if he could come in and she allowed him to come into her house. After coming into her house he produced a gun; he sexually assaulted her; he assaulted her with his hand and with the gun; he took items from her purse; and upon leaving the house he shot her in the top of the head. Her mother found her lying on the floor the next morning. She survived and furnished enough information to the sheriff's department that Appellant was arrested on June 17. Appellant was convicted by a jury for attempted capital murder and the jury assessed his punishment at life in prison and a $10,000 fine.

Appellant appeals on one point of error: "The trial court erred in failing to suppress certain oral statements of Appellant in violation of art. 38.22 of the Texas Code of Criminal Procedure."

On June 17, 1995, Donna Emery, a 50-year-old female, was found beaten and shot in her home by her mother. When law enforcement and emergency personnel arrived she said she had been raped, beaten, shot and left for dead the day before.

An investigation by the sheriff's department led investigators to believe that Appellant was responsible. Appellant was arrested at his apartment in Whitney that same day. Among the arresting officers were Sheriff Button and Captain West of the Hill County Sheriff's Department.

After Appellant's arrest, which was under a warrant issued by Justice of the Peace Ward, Appellant was read his Miranda warnings.

Appellant waived his right to remain silent and his right to counsel and advised Button and West of having an altercation with Ms. Emery the day before at her home but did not admit to raping, robbing or intentionally shooting Emery.

Appellant led Button and West on a search on June 17 and 18 that resulted in a recovery of the .25-caliber handgun which caused the gunshot wound to Emery, as well as her checkbook and wallet which Appellant took when he left her house. Appellant had thrown the items out on several farm-to-market roads in rural Hill County.

At the time of Appellant's arrest, and during several occasions on the date of his arrest and the day following his arrest, Appellant made several oral statements to West regarding his involvement in the offense. These oral statements were not recorded electronically and Appellant never gave a written statement.

Prior to trial Appellant filed a motion to suppress the oral statements. At the suppression hearing Appellant claimed the oral statements should be suppressed as inadmissible under art. 38.22. The State contended the statements were admissible under art. 38.22, 3(c) because the statements led to the discovery of property that was involved in the offense.

The trial court denied the motion to suppress and entered its findings pursuant to art. 38.22, 6. The court found that "the statements of defendant led to the discovery of the disposition of stolen property which conduced to establish the guilt of the defendant."

At trial Officer West testified in rebuttal about the complained-of statements without objection.

Article 38.22, 3

(a) No oral statement . . . of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless:

(1)an electronic recording which may include motion pictures, videotape, or other visual recording, is made of the statement;

(2)prior to the statement . . . the accused is given the warning (Miranda warning) . . . and the accused knowingly, intelligently and voluntarily waives any rights set out in the warning;

. . . .

(c) Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.

Specifically, Appellant asserts that since the statements were made over the course of the investigation, i.e. two days, each should be analyzed independently.

The trial judge, in denying Appellant's motion to suppress, found the statements of Appellant led to the discovery of property involved in the offense; that Appellant had been given all of his Miranda warnings; that the statements were freely and voluntarily made; and that the statements were admissible.

The trial judge is the sole and exclusive trier of fact and judge of the credibility of the witness as well as the weight to be given the testimony at the hearing on a motion to suppress. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

Marini v. State, 593 S.W.2d 709, 713 (Tex. Crim. App 1980), is directly on point and holds that "the term 'confession' in addition to Appellant's initial offer at the police station to lead officers to the money and narcotics, is broadly construed to include his incriminating outburst and detailed account of the crime, all of which occurred after the money was found. The later declarations constitute part of one continuous confession which began at the police station."

The information testified to by Officer West in rebuttal was admissible under Romero and Marini, supra, as statements made as a part of one continuing confession and as such were admissible.

Point one is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Davis,

Justice Vance and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed September 3, 1997

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