Quintin Dawson McCleery v. State of Texas--Appeal from 39th District Court of Stonewall County

Opinion filed August 7, 2008

In The

Eleventh Court of Appeals

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 Nos. 11-07-00058-CR & 11-07-00059-CR

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QUINTIN DAWSON MCCLEERY, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 39th Judicial District

Stonewall County, Texas

Trial Court Cause Nos. 1846 & 1847

M E M O R A N D U M O P I N I O N

The jury convicted Quintin Dawson McCleery of two offenses of arson and assessed his punishment at confinement for ten years for each offense. We affirm.

Background Facts

Bill Mullen, Stonewall County Sheriff, investigated two fires set at two residences. As part of the investigation, Sheriff Mullen wanted to speak with appellant in reference to the fires. However, before Sheriff Mullen could set up a meeting, appellant asked to speak with him. Sheriff Mullen agreed to speak with appellant but did not know it was in reference to the fires at that time. Appellant and Sheriff Mullen rode together in the sheriff=s car to the station. At the station, Sheriff Mullen gave appellant his Miranda[1] warnings and had him sign the written form. Appellant then gave a statement saying that he had started the fires. Sheriff Mullen typed the statement, and appellant signed it. We will summarize appellant=s statement below.

Appellant wanted to join the volunteer fire department in Aspermont but had heard that the president of the department, Timothy Meador, did not like him. He decided to set the first fire at an old abandoned house to show the department and Meador that he knew what he was doing. He set off fire crackers and a strobe flair on old paper lying on the floor. After the report of the fire came in, appellant went to the house to help extinguish the fire. While at the fire, Meador told appellant that he did not want appellant on any of the equipment until he was voted into the department. Appellant got angry, and a few nights later, he started the second fire at another abandoned house. He put three strobe flares on the porch where a board was missing. Appellant went home and waited thirty minutes and then fell asleep. When he woke up, he heard a boom and looked out and saw orange, so he called the fire in to the sheriff=s department and went to help extinguish the fire. Appellant was indicted in two causes for arson. Each indictment had an enhancement paragraph alleging a prior felony. Appellant filed a motion to suppress his statements in each cause. After a hearing, the trial court denied appellant=s motions. Appellant pleaded not guilty to each indictment and proceeded to a jury trial. At trial, the State offered appellant=s signed statement, and the trial court admitted it over appellant=s objection.

Issue on Appeal

Appellant asserts that his confession was not freely and voluntarily given and should not have been admitted into evidence.

Admission of Appellant=s Statement

When a defendant challenges the voluntariness of his statement, due process requires the trial court to hold a hearing on the admissibility of the statement. Jackson v. Denno, 378 U.S. 368, 380 (1964). The State has the burden at the hearing to prove by a preponderance of the evidence that the defendant=s statement was voluntary. Colorado v. Connelly, 479 U.S. 157, 169 (1986). We review the trial court=s admission of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We will uphold the trial court=s ruling if it is within the zone of reasonable disagreement. Id. At a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995); see also Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

A statement of an accused may be used in evidence against him if it was freely and voluntarily given without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). To determine if a statement is voluntary, we examine the totality of the circumstances under which the statement was obtained. Penry, 903 S.W.2d at 744. A statement is involuntary if there was official coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995).

At the hearing on appellant=s motions to suppress, Sheriff Mullen testified that appellant asked to speak to him and went freely with him to the station. He further testified that he gave appellant his Miranda warnings and that he believed appellant understood his rights and did not have any mental impairment. Sheriff Mullen stated that appellant was not under arrest, that he was free to leave at any time, and that he never indicated that he did not want to talk to him or that he wanted to talk to a lawyer. Sheriff Mullen testified that it took appellant about twenty minutes to tell his story and forty-five minutes for him to type it. Sheriff Mullen testified that appellant read the statement and that he believed that appellant knew exactly what he was signing. He further testified that he did not threaten, intimidate, or coerce appellant in any way. On cross-examination, Sheriff Mullen testified that he did not have a firearm in his possession or within his reach when he talked to appellant.

Appellant testified at the suppression hearing as well. He stated that Sheriff Mullen contacted him and asked him to help move some things. Appellant went with Sheriff Mullen voluntarily. Appellant testified that, once they got to the station, Sheriff Mullen told him to shut the door and sit down, stating, A[W]e need to have a serious talk.@ Appellant testified that he asked if he could talk to a lawyer but that Sheriff Mullen told him that he did not need one yet. Appellant also testified that Sheriff Mullen did not give him his Miranda warnings until after the statement was written and signed. Appellant stated that, other than the part about him having words with Meador, the statement was not his words. Sheriff Mullen composed the rest of the statement on his own. Appellant testified that at first he said he would not sign it but then Sheriff Mullen Apulled his pistol out of his holster and set it on his desk with his right hand on it, with his right index finger on the trigger.@ Appellant further testified that he thought Sheriff Mullen was bluffing and still did not sign the statement. Appellant stated that he did not sign the statement until Sheriff Mullen told him that he could make him disappear. Appellant stated that the reason he signed the statement was because he was scared and felt his life was being threatened.

The trial court did not abuse its discretion in admitting appellant=s statement. We give deference to the trial court=s rulings on questions of fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). A question turns on an evaluation of credibility and demeanor when the testimony of one or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive issue. Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App. 1998). It is clear that the trial court believed Sheriff Mullen=s testimony that showed that appellant=s statement was given freely and voluntarily without compulsion or persuasion. We overrule appellant=s issue on appeal.

Conclusion

We affirm the judgments of the trial court.

RICK STRANGE

August 7, 2008 JUSTICE

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Miranda v. Arizona, 384 U.S. 436 (1966).