Kevin Boyer v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

KEVIN BOYER, )

) No. 08-04-00350-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20020D04178)

)

O P I N I O N

Kevin Boyer appeals his conviction for capital murder. A jury found him guilty and the trial court sentenced Appellant to life imprisonment. Appellant raises two issues on appeal: (1) whether the trial court erred in denying his pretrial motion to suppress his written confession because the initial arrest warrant was based on a deficient complaint affidavit; and (2) whether the trial court erred in refusing his requested jury charge instruction as to whether he voluntarily waived his rights in accordance with Article 38.22 of the Texas Code of Criminal Procedure. We affirm.

On August 19, 2001, the body of Ismael Navarro was discovered in a dumpster in the alleyway next to the First Trinity United Methodist Church in El Paso, Texas. Officer David Samaniego obtained an arrest warrant for Appellant on the night of August 21, 2001. Around 11:20 p.m., Officer Samaniego contacted Detective Gonzalo Chavarria by phone and advised him that the warrant had been obtained. Detective Chavarria had been surveilling Appellant=s residence at the Sunset Hotel waiting for unit detectives to obtain the arrest warrant. About ten minutes later, Detective Chavarria and other officers executed the warrant and arrested Appellant for murder.[1] Appellant was taken to the Crimes Against Persons (ACAP@) office at the El Paso Police Department. Sergeant Adrian Medina meet with Appellant at police headquarters at approximately 11:55 p.m. Sergeant Medina testified that he advised the Appellant of his Miranda rights and between 12:02 a.m. and 3:30 a.m., he obtained Appellant=s voluntary statement, confessing to the murder.

Appellant first contends that the trial court erred in not suppressing his written statement because the initial arrest warrant was illegal because it was based on a deficient complaint affidavit. Specifically, he complains that the affidavit failed to specify the source of the information, whether the source was credible, and whether any of the information had been substantiated.

Standard of Review

We review the trial court=s ruling on a motion to suppress for an abuse of discretion. Guzman v. State, 955 S.W.2d 85, 88-9 (Tex.Crim.App. 1997). Under this standard, we give almost total deference to the 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 89. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.; Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). When the trial court does not make explicit findings of fact, we review the evidence in a light most favorable to the trial court=s ruling. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App. 2000). The trial court=s ruling will be upheld if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App. 2000).

Probable Cause Affidavit

An affidavit in support of an arrest warrant must show probable cause that an offense has been committed and probable cause that the person named in the affidavit committed the offense. Belton v. State, 900 S.W.2d 886, 893 (Tex.App.--El Paso 1995, pet. ref=d); see also Tex.Code Crim.Proc.Ann. art. 15.05 (Vernon 2005). The information contained in the affidavit may be based on either direct personal observations of the affiant or on hearsay information. Belton, 900 S.W.2d at 893, citing Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 1514, 12 L. Ed. 2d 723, 729 (1964). Whether an affidavit in support of an arrest warrant is sufficient to show probable cause must be determined from the four corners of the affidavit itself. Belton, 900 S.W.2d at 893, citing Tolentino v. State, 638 S.W.2d 499, 501 (Tex.Crim.App. 1982); Miller v. State, 736 S.W.2d 643, 647 (Tex.Crim.App. 1987). Affidavits must be interpreted in a common sense and realistic manner and the magistrate who reviews an affidavit may draw inferences from the facts contained in it. Belton, 900 S.W.2d at 893, citing Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App. 1991).

The reviewing court determines whether the affidavit contained sufficient probable cause under the Atotality of the circumstances@ test. See Illinois v. Gates, 462 U.S. 213, 228-31, 103 S. Ct. 2317, 2327-28, 76 L. Ed. 2d 527 (1983); Bellah v. State, 653 S.W.2d 795, 796 (Tex.Crim.App. 1983). Credibility, reliability, and basis of knowledge no longer need to be established by separate and independent facts; however, they remain highly relevant factors in determining, by the totality of the circumstances, whether probable cause exists. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App. 1988). A magistrate=s determination of probable cause should be given great deference by reviewing courts. See Swearingen v. State, 143 S.W.3d 808, 811 (Tex.Crim.App. 2004); see also Gates, 462 U.S. at 236-37, 103 S. Ct. at 2331.

Here, Detective David Samaniego=s complaint affidavit in support of the initial arrest warrant stated, inter alia:

Detective David Samaniego #1512, who after being by me duly sworn, on oath deposes and says that he has good reason to believe and does believe that heretofore to wit, on or about the 18th day of August, 2001 and before the filing of this Complaint in the County of El Paso, the State of Texas, one Kevin L. Boyer (DOB 6-13-72), hereinafter called DEFENDANT, did then and there unlawfully, intentionally and knowingly causes [sic] the death of an individual, to-wit; Ismael Navarro.

Affiants [sic] belief is based on the following,

Affiant is in possession of police reports, witness statements and two voluntary statements of accused alleging the following. On 8-18-01 at approximately 10:00P, Ismael Navarro accompanied defendant Boyer along with two individuals as they walked through the parking lot of the Trinity 1st United Methodist Church located at 810 N. Oregon. Defendant Boyer began assaulting Ismael Navarro by punching and kicking him about the entire body and causing Ismael Navarro to fall onto the pavement. Defendant Boyer then placed Ismael Navarro within a trash receptacle. The body of Ismael Navarro was discovered within the trash receptacle on 8-19-01 at approximately 7:30A. Preliminary autopsy results indicate that Ismael Navarro died of multiple blunt force trauma. This offense is said to have occurred on 8-18-01 in the County of El Paso, the State of Texas.

Appellant complains that it is impossible to tell from the four corners of the affidavit whether the source or sources of information are accurate and reliable because the allegations concerning his alleged actions are not attributed to any specific person or source. Detective Samaniego=s affidavit, however, indicates that his allegations are based on information obtained from police reports that were derived from the investigation. A magistrate is entitled to rely upon information supplied by a police officer=s own observations and upon information supplied by fellow officers engaged in a common investigation. Ashcraft v. State, 934 S.W.2d 727, 733 (Tex.App.--Corpus Christi 1996, pet. ref=d), citing Johnson v. State, 803 S.W.2d 272, 289 (Tex.Crim.App. 1990).

The affidavit also identifies Atwo voluntary statements of accused@ as sources of information, without specifically naming the individual or individuals. A magistrate is permitted to make reasonable inferences from the facts set forth in the affidavit. See Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App. 1991); Gish v. State, 606 S.W.2d 883, 886 (Tex.Crim.App. 1980). In this case, the magistrate could have reasonably inferred from the facts in the affidavit, that the voluntary statements of the Aaccused,@ referred to Appellant and or one or both of the individuals who were accompanying Appellant on the night of August 18, 2001 and were witnesses to the assault. Where the victim or eyewitness to the offense is the direct source of the information conveyed to the magistrate via a police officer, neither facts independently corroborative of the occurrence nor the basis for the claimed reliability of the eyewitness need be recited. Belton, 900 S.W.2d at 894. Further, the preliminary autopsy results indicated that the decedent died from multiple blunt force trauma, which is consistent with the manner of the assault. Therefore, we disagree with Appellant=s contention with regard to the unnamed sources of information in the affidavit.

Appellant also complains that the affidavit failed to provide sufficient information that led the officer to form his conclusion that Appellant killed the decedent. Ergo, the affidavit did not provide a substantial basis for the magistrate to determine whether probable cause existed. Factual allegations in an affidavit are sufficient if they permit the reasonable and logical inference of a nexus between the Appellant and the crime charged. See Gibbs, 819 S.W.2d at 830. On the other hand, an affidavit which contains a mere conclusory allegation is insufficient to establish probable cause. See Miller, 736 S.W.2d at 647.

In reviewing the affidavit, we observe that based on the police investigation, witness statements, and the two voluntary statements, Detective Samaniego detailed the following facts to support the issuance of the arrest warrant:

(1) On the night of August 18, 2001, the decedent accompanied Appellant and two other individuals, as they walked through the parking lot of the Trinity First United Methodist Church;

(2) Appellant began assaulting the decedent by punching and kicking him about the entire body and caused him to fall onto the pavement;

(3) Appellant then placed the decedent in a trash receptacle, where the decedent was discovered on the morning of August 19, 2001; and

(4) Preliminary autopsy results indicate that the decedent died of multiple blunt force trauma.

The affidavit in this case sufficiently detailed the facts, which were either told directly to Detective Samaniego or to other police officers involved in the investigation, in support of the detective=s conclusion that Appellant had committed this particular offense. Therefore, we conclude that the affidavit for the initial arrest warrant contained sufficient facts from which the magistrate could have found probable cause. Moreover, we conclude that under the totality of the circumstances, the magistrate had a substantial basis for concluding there was probable cause to issue the arrest warrant.

However, even if the initial arrest warrant was invalid as Appellant claims, we would still conclude that the trial court did not err in denying Appellant=s motion to suppress his written statement because there was sufficient attenuation of any taint from the illegal arrest. When the affidavit supporting an arrest warrant is insufficient, the question is then whether the resulting taint on the evidence was attenuated, such that the evidence was admissible notwithstanding the illegal arrest. Hankins v. State, 132 S.W.3d 380, 389 (Tex.Crim.App. 2004), cert. denied, 543 U.S. 944, 125 S. Ct. 358, 160 L. Ed. 2d 256 (2004). In assessing whether the taint on the evidence is sufficiently attenuated, we consider the following four factors:

(1) whether Miranda[2] warnings were given;

(2) the temporal proximity of the arrest and the confession;

(3) the presence of intervening circumstances; and

(4) the purpose and flagrancy of the official misconduct.

Id.; see also Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416 (1975).

Here, Detective Medina testified at the suppression hearing that before conducting the oral interview, he read the Miranda warnings to Appellant and that Appellant read them back to him and initialed each right and signed the Miranda warning card. The Miranda warnings were also at the beginning of his written statement, which was signed by Appellant. This factor weighs in favor of the State.

With regard to the second factor, the temporal proximity of the arrest and the confession, the record shows that Appellant was arrested at approximately 11:30 p.m. and was immediately taken to the CAP office at police headquarters. Appellant was advised of his Miranda rights and signed the warning card at 12:02 a.m. Detective Medina recalled that he began taking Appellant=s written statement at 1:20 a.m. Appellant signed his written statement at approximately 3:30 a.m., four hours after his initial arrest. The second factor tends to favor Appellant. See Bell v. State, 724 S.W.2d 780, 788-89 (Tex.Crim.App. 1986)(finding that a lapse of between one-and-a-half to three hours favored the defendant).

In Appellant=s brief, he asserts that there were no intervening circumstances between his arrest and the taking of his written statement. However, at the suppression hearing Detective Charlie Ortega testified that he obtained a search and arrest warrant, authorizing Appellant=s arrest and the search of his residence, at 12 a.m. Appellant has not challenged the validity of this subsequent warrant. Significant intervening circumstances include an appearance before a magistrate, termination of the illegal custody, consultation with counsel, voluntary statement not made in response to police interrogation, consultation with parents, and the procurement of a valid arrest warrant before the confession. Weems v. State, 167 S.W.3d 350, 360 (Tex.App.--Houston [14th Dist.] 2005, pet. ref=d). Here, the subsequent procurement of a valid arrest warrant prior to Appellant=s confession was a significant intervening circumstances and is a relevant factor in our analysis. See Johnson v. State, 871 S.W.2d 744, 751 (Tex.Crim.App. 1994) (subsequent procurement of an arrest warrant during interrogation that was conducted after an illegal arrest constitutes an intervening circumstance under Brown analysis); Bell, 724 S.W.2d at 791 (subsequent procurement of a proper arrest warrant severed the causal relationship between the illegal arrest and resulting evidence). We conclude that this factor favors the State.

In the final factor, we consider the purpose and flagrancy of the misconduct by the police. Official misconduct has been found when the arrest: (1) was without probable cause; (2) was calculated to cause surprise, fright, and confusion; and (3) was conducted purely in hope that something would turn up. Weems, 167 S.W.3d at 361. Other examples of official misconduct include making an arrest that is unnecessarily intrusive on personal privacy and subjecting the defendant to continuous interrogation. Bell, 724 S.W.2d at 789.

Here, the record shows that based on the unchallenged subsequent search and arrest, which relied on the eyewitness statements of two named individuals, the police had probable cause to arrest Appellant. There was no evidence that the officers= actions were calculated to cause surprise, fright, or confusion. Detective Gonzalo Chavarria testified that he was conducting surveillance at the Sunset Hotel when he received a call advising him that a warrant had been obtained. About ten to fifteen minutes later, Detective Chavarria knocked on Appellant=s door and after a few knocks, Appellant opened the door. Detective Chavarria told Appellant he was under arrest for murder and then directed the two uniformed officers who were with him to place Appellant into custody. Detective Alfonso Navares transported Appellant to the CAP office from the Sunset Hotel. Detective Navares recalled that Appellant appeared calm, awake, and did not appear like someone who had just been roused from sleep. Additionally, there is no evidence to suggest that the arrest was conducted in the hope that something might turn up in the officers= investigation. The last factor, therefore, weighs in favor of the State.

Because Appellant received repeated Miranda warnings, the police obtained a subsequent valid arrest warrant before Appellant was interviewed and had signed his written statement, and the police officers did not act in a flagrantly abusive or purposeful manner, we find that the Brown factors when considered together, weight in favor of the State, such that Appellant=s written statement was not tainted by his alleged illegal arrest. Therefore, we conclude the trial court did not abuse its discretion in denying Appellant=s motion to suppress the evidence. Issue One is overruled.

In his second issue, Appellant argues that the trial court erred in denying his requested jury instruction on the voluntariness of his written statement pursuant to Article 38.22 of the Texas Code of Criminal Procedure.

At the charge conference, Appellant requested the following instruction be given to the jury:

You are instructed that under our law a confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible in evidence if it appears that the statement was freely and voluntarily made without compulsion or persuasion provided, however, that it be made in writing and signed by the accused and show that the accused has been warned prior to making such statement or confession by the person or whom--to whom the statement is made that, one, he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial; two, any statement he makes may be used as evidence against him in Court; three, he has a right to have a lawyer present to advise him prior to and during any questioning; four, he may have his own lawyer or, if he is unable to employ a lawyer, he has a right to have a lawyer appointed to advise him prior to and during any questioning and; five, he has the right to terminate the interview or questioning at any time.

So in this case if you find from the evidence or you have a reasonable doubt thereof that prior to the time the defendant gave the alleged statement, or confession, to Detective Medina, if he did give it, the said Detective Medina did not warn the defendant in the respects just outlined or as to any one of such requirements just outlined, then you will wholly disregard the alleged statement or confession and not consider it for any purpose nor any evidence obtained as a result thereof.

If, however, you find beyond a reasonable doubt that the aforementioned warning was given to the defendant prior to having made such statement, if he did make it, still before you may consider such statement as evidence in this case you must find from the evidence beyond a reasonable doubt that prior to and during such statement, if any, the defendant knowingly, intelligently and voluntarily waived the rights hereinabove set out in the said warning. And unless you so find, or if you have a reasonable doubt thereof, you will not consider the statement or confession for any purposes whatsoever or any evidence obtained as a result of the same.

The trial court refused Appellant=s proposed instruction and instead, the following instruction appears in the charge:

You are instructed that unless you believe from the evidence beyond a reasonable doubt that the alleged written confession or statement introduced into evidence was freely and voluntarily made by the defendant without compulsion or persuasion, or if you have a reasonable doubt thereof, you shall not consider such alleged written statement or confession for any purpose nor any evidence obtained as a result thereof.

Article 38.22, section 7 provides that when the voluntariness of a confession is raised by the evidence, the trial judge shall instruct the jury on the law pertaining to the statement. See Tex.Code Crim.Proc.Ann. art. 38.22, ' 7 (Vernon 2005); Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App. 1993). The evidence that raises the issue may be strong, weak, contradicted, unimpeached, or unbelievable. Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Crim.App. 2002). However, before the requested instruction is required, some evidence must be presented to the jury that raises the voluntariness issue. See Butler v. State, 872 S.W.2d 227, 236 (Tex.Crim.App. 1994).

Here, Appellant argues that the following evidence shows that he did not knowingly and voluntarily waive his Miranda rights: (1) Officer Medina advised Appellant of his Miranda rights within only a seven-minute period before beginning the interview; (2) Officer Medina

knew that Appellant could read and understand English and had completed the tenth grade, but did not inquire further into Appellant=s background; (3) on cross-examination, Officer Medina testified that he had formed no opinion as to whether Appellant was sophisticated or not; and (4) Officer Medina also testified that Appellant was cooperative during the interview, but did suppose that Appellant may have been scared.

Even assuming that the above facts alone constitute some evidence that Appellant did not knowingly and intelligently waive this rights, the trial court did not err in excluding the proposed instruction. In Mendoza v. State, the Court of Criminal Appeals held that the trial court in that case properly excluded a proposed instruction, which is virtually identical to the language in the second and third paragraph of Appellant=s requested instruction. See Mendoza, 88 S.W.3d at 240. The Mendoza Court determined that the specific recitation of facts in such an instruction would have constituted a comment on the weight of the evidence. Id. at 240 n.5. With regard to the first paragraph of the requested instruction, the trial court in this case provided a general jury instruction, rather than Appellant=s more detailed charge. Because Section 7, Article 38.22 only requires that a jury be instructed generally on the law of voluntariness, the trial court did not err in refusing the requested instruction proposed in Appellant=s first paragraph and instead providing a general instruction on voluntariness in the charge. See Dinkins v. State, 894 S.W.2d 330, 352-53 (Tex.Crim.App. 1995); Mendoza v. State, 61 S.W.3d 498, 505 (Tex.App.--San Antonio 2001), aff=d, 88 S.W.3d 236 (Tex.Crim.App. 2002). Thus, we find no error by the trial court and we overrule Issue Two.

We affirm the trial court=s judgment.

August 10, 2006

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] Subsequent to the initial arrest warrant, Detective Charlie Ortega obtained a search and arrest warrant at 12 a.m., which authorized the search of Appellant=s motel room and his arrest. Detective Ortega participated in the execution of the search, which occurred at approximately 12:45 a.m., and testified at the suppression hearing that Appellant was not present during the search. Appellant does not challenge the validity of this subsequent search and arrest warrant on appeal.

[2] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).