Barnes, Brydrick Earl v. The State of Texas--Appeal from 338th District Court of Harris County

Affirmed and Memorandum Opinion filed December 1, 2005

Affirmedand Memorandum Opinion filed December 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00665-CR

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BRYDRICK EARL BARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 338th District Court

Harris County, Texas

Trial Court Cause No. 929,149

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

Appellant Brydrick Earl Barnes was charged by indictment with capital murder. Appellant pleaded guilty to a reduced charge of aggravated robbery and received a life sentence. Appellant brings two issues on appeal in which he challenges the trial court=s rulings on his pre-trial motion to suppress. We affirm.

I. Factual and Procedural Background

On or about October 25, 2002, Frank Brooks was murdered by an intruder in his home. The police arrived and found Brooks= dead body with one gun shot wound to the head. An anonymous tip led the police to Kesha Simien, who had knowledge about the homicide. Simien told the police that appellant, her ex-boyfriend, confessed to her that he shot Brooks while in the course of a robbery.

On October 30, 2002, the police obtained a warrant for appellant=s arrest and he was arrested the following day. After receiving his Miranda warnings, appellant waived his rights, and gave an audio-taped confession to the police. Following his confession, appellant offered to take the police to various locations in search of evidence of the murder. However, the only evidence that was recovered during this attempt was a coat hanger that appellant allegedly had used to unlock the door to Brooks=s home. After this attempt to locate evidence, appellant gave another confession. The second confession was video-taped.

The next day, while in jail, appellant complained of stomach pains and stated that he had ingested several rocks of crack cocaine the day of his arrest. He was then transferred to Ben Taub Hospital, where he received medical treatment. A urine sample provided by appellant showed traces of marijuana, cocaine, and phencyledine, also known as PCP, in his system. Although the testing showed the presence of these substances in appellant=s system, there is no evidence as to the individual amounts of each substance that appellant might have ingested. None of the four police officers that had contact with appellant on the day of his arrest saw appellant ingest anything. According to the officers=testimony, appellant did not appear to be intoxicated or under the influence of any drugs.

Appellant was charged by indictment with capital murder. Appellant pleaded guilty to a reduced charge of aggravated robbery and received a life sentence.

Challenging his conviction on appeal, appellant asserts that: (1) the trial court erred in denying his motion to suppress his confessions as being involuntary and given while he was under the influence of drugs, and (2) the warrant used for his arrest was invalid based on lack of probable cause.

II. Standard of Review

We review the trial court=s ruling on a motion to suppress under an abuse of discretion standard. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991). A trial court=s ruling on a motion to suppress, if supported by the record, will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id.

An appellate court should show almost total deference to a trial court=s determination of the historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). In its findings of fact, the trial court found that appellant intelligently, knowingly, and voluntarily waived his rights and that appellant=s confessions were voluntary. Because this finding was based on an evaluation of credibility and demeanor of the witnesses, we apply the deferential standard to this finding. See Guzman, 955 S.W.2d at 89. However, as to the overall determination as to whether the confessions were involuntary, we review the trial court=s decision de novo. See id.

III. Analysis

 A. Did the trial court abuse its discretion in denying appellant=s motion to suppress his confessions?

In his first issue, appellant contends that the trial court erred in denying his motion to suppress both the audio-taped and video-taped statements he gave to the police on the day of his arrest. More specifically, he contends that his confessions were involuntary because he was under the influence of drugs at the time he gave the statements. For the reasons explained below, we find no merit in appellant=s arguments.

At a hearing on appellant=s motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence. Wood v. State, 18 S.W.3d 642, 646 (Tex. Crim. App. 2000). The determination of whether a confession is voluntary is based on an examination of the totality of circumstances surrounding its acquisition. Griffin v. State, 765 S.W.2d 422, 429 (Tex. Crim. App. 1989). Even if appellant were intoxicated when he was arrested and interrogated, that fact alone is not sufficient to render his confession involuntary. See Garcia v. State,919 S.W.2d 370, 387 (Tex. Crim. App. 1994) (op. on reh=g) (citing Nichols, 754 S.W.2d at 190). AThe central question is the extent to which appellant was deprived of his faculties due to the intoxication.@ Nichols v. State, 754 S.W.2d 185, 190 (Tex. Crim. App. 1988). If appellant=s intoxication rendered him incapable of making an independent, informed choice of free will, then his confession was given involuntarily. See id.

After a hearing on the motion to suppress, the trial court filed findings of fact and conclusions of law. On the issue of whether appellant=s confessions were voluntary, the trial court found, in pertinent part, as follows: (1) appellant was given his warnings before his audio-taped and video-taped confessions; (2) appellant intelligently, knowingly, and voluntarily waived his rights before both confessions; (3) appellant was not threatened, coerced, or promised anything in return for his confessions; (4) the officers who testified as to appellant=s confessions were credible witnesses; (5) appellant was legally arrested; and (6) appellant=s two confessions were given voluntarily. As stated above, we give almost total deference to the trial court=s determination of historical facts. See Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000).

The evidence presented at the motion-to-suppress hearing supports the trial court=s finding that appellant was not so intoxicated as to render his confessions involuntary. Appellant rests his argument on the testimony of Dr. Katherine McQueen, an Assistant Professor of Internal Medicine at Baylor College of Medicine. At the suppression hearing, Dr. McQueen testified that PCP can remain in an individual=s urine for at least three days after ingestion, maybe even longer. She further testified that the effects of this substance could make a person respond appropriately to police interrogation, but perhaps not understand the results of waiving his Miranda rights. However, Dr. McQueen admitted that she did not have any evidence to prove that appellant would have been, or was, intoxicated at the time he gave his statements to the police, nor could Dr. McQueen state whether or how the presence of this substance affected appellant. It is possible that even though the PCP was detected in appellant=s urine, the actual effects of the drug had worn off well before he gave his confessions.

Several police officers observed and interacted with appellant on the day of and the day following his arrest. Four of these officersCRuben Arias, Wayne Wendel, Phillip Jackson, and Kevin Patrick CarrCtestified at the suppression hearing. Each of these officers testified that he never saw appellant ingest anything and that appellant did not appear to be intoxicated or under the influence of any drug at the times in question. More specifically, Officer Arias, who, as an experienced police officer has had many opportunities to observe people who were intoxicated or under the influence of drugs, stated that appellant appeared Avery normal to him and did not exhibit anything that led him to believe appellant was intoxicated or under the influence.@ Officer Arias further stated that appellant clearly knew and understood what was going on during his arrest and interrogation. Officer Wendel testified that appellant never appeared to be under the influence of any drug, nor did appellant ever complain about being in pain. Officer Jackson testified that during the entire time he was with appellant, there was no indication that appellant was intoxicated or under the influence of drugs. Officer Carr testified that, during his career as a police officer he has encountered several intoxicated individuals, and appellant did not display any of the common signs of intoxication.

Moreover, appellant fully cooperated with the police not only in offering his audio-taped confession, but also in offering a video-taped confession after driving around with the police for most of the day in an attempt to recover some of the physical evidence of the crime. The uncorroborated opinion testimony of an arresting officer is sufficient to prove whether an individual was intoxicated. Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979); Watkins v. State, 741 S.W.2d 546, 549 (Tex. App.CDallas 1987, pet. ref=d). Any complaint that appellant might have in regard to the officers= training and experience in drug detection or intoxication relates to their credibility, which was an issue for the trial court to decide. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

In addition, we do not know the specific amounts of the narcotics found in appellant=s system, and we cannot conclude the trial court abused its discretion in declining to find that appellant=s alleged intoxication rendered his confessions involuntary. See King v. State, 585 S.W.2d 720 (Tex. Crim. App. 1979) (holding that heroin taken on the day of confessing did not render confession involuntary); Saldana v. State, 59 S.W.3d 703 (Tex. App.CAustin 2001, pet. ref=d) (holding trial court did not abuse its discretion in admitting video-taped confession when blood test revealed that appellant had ingested .3 milligrams of cocaine); Pace v. State, 986 S.W.2d 740 (Tex. App.CEl Paso, pet. ref=d) (holding confession not involuntary even though defendant=s blood alcohol content was at .16 at time of arrest). See also United States v. Wilkins, 659 F.2d 769, 775 (7th Cir. 1981) (holding that evidence that defendant was under influence of injected drugs at time of questioning was overridden by nurse=s testimony that defendant appeared coherent); United States v. Sledge, 546 F.2d 1120 (4th Cir. 1977) (holding defendant=s claim that he was Ahigh@ due to an intravenous injection of heroin two and one half hours before confessing rejected in view of police testimony that he was coherent); Atkins v. State, 452 So. 2d 529, 531B32 (Fla. 1984) (holding that confession was voluntary when given after approximately six hours had passed between ingestion of Quaalude and beer and the giving of the confession); Holcomb v. State, 326 S.E.2d 760, 762 (Ga. 1985) (holding that where defendant was sufficiently warned but was suffering withdrawal symptoms from amphetamines and cocaine, confession was voluntary); Boggs v. Commonwealth, 331 S.E.2d 407, 415 (Va. 1985) (holding confession voluntary with evidence of alertness and comprehension where defendant consumed a six-pack of beer, and a fifth of whiskey, smoked marijuana, and took two hits of speed).

Although appellant contends that the statements containing his confessions were not voluntary, the trial court, as the finder of fact in a hearing on a motion to suppress, could choose to believe or disbelieve any or all of the testimony of the witnesses. Luckett v. State, 586 S.W.2d 524, 527 (Tex. Crim. App. 1979). Accordingly, we conclude that the trial court did not abuse its discretion in denying the motion to suppress appellant=s confessions. We overrule appellant=s first issue.

 B. Was appellant=s arrest warrant affidavit based on probable cause?

In his second issue, appellant alleges that Kesha Simien, the witness with the inculpating information about the crime, was not credible. Thus, appellant argues, the arrest warrant affidavit lacked probable cause. Appellant contends that, because Simien was his ex-girlfriend, she was a biased witness and not a disinterested citizen.[1] We disagree with appellant.

An arrest warrant must contain the name of the person to be arrested and the offense the arrestee committed, and the warrant must be signed by a magistrate. See Tex. Code Crim. Proc. Ann. art. 15.02 (Vernon 1977). An arrest warrant must provide the magistrate with Asufficient information to support an independent judgment that probable cause exists for the warrant.@ Jones v. State, 568 S.W.2d 847, 855 (Tex. Crim. App. 1978). The arrest warrant need only contain probable cause; it need not contain sufficient information that would convince a jury of the defendant=s guilt beyond a reasonable doubt. Janecka v. State, 739 S.W.2d 813, 823 (Tex. Crim. App. 1987).

To determine whether the facts alleged in a probable cause affidavit sufficiently support a search warrant, we examine the totality of circumstances. See Ramos v. State, 934 S.W.2d 358, 362B63 (Tex. Cim. App. 1996). The allegations are sufficient if they would Ajustify a conclusion that the object of the search is probably on the premises.@ Id. at 363. See also State v. Bridges, 977 S.W.2d 628, 630 (Tex. App.CHouston [14th Dist.] 1998, no pet.); Lane v. State, 971 S.W.2d 748, 751 (Tex. App.CDallas 1998, pet ref=d). In determining the sufficiency of an affidavit for an arrest warrant, we are limited to the Afour corners of the affidavit.@ Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992). The magistrate, however, is permitted to draw reasonable inferences from the facts and circumstances alleged in the affidavit. Daniels v. State, 999 S.W.2d 52 (Tex. App.CHouston [14 Dist.] 1999, no pet.).

An informant=s basis of knowledge and reliability are factors to be considered in assessing the existence of probable cause. See Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527 (1982). However, the Texas Court of Criminal Appeals does not view information that is freely given to police by citizens who provide their names with the same suspicion reserved for information from anonymous police informants who have an unproven record of reliability. See West v. State,720 S.W.2d 511, 513 n.2 (Tex. Crim. App. 1986). A probable cause affidavit that identifies a named informant will support issuance of a warrant if the information provided is sufficiently detailed to suggest direct knowledge on the informant=s part. Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995) (holding sufficient an arrest warrant affidavit that named appellant=s younger brother as an informant and that the brother gave the police a written statement in which he said that appellant had confessed to the crime); Wilkerson v. State, 726 S.W.2d 542, 545 (Tex. Crim. App. 1987) (holding sufficient an arrest warrant affidavit with a named informant who gave detailed information); Mejia v. State, 761 S.W.2d 35, 38 (Tex. App.CHouston [14th Dist.] 1988, pet. ref=d) (holding sufficient an affidavit that listed a named informant with personal knowledge of the facts contained in the affidavit). Evidence as to either the informant=s specific veracity or her basis of knowledge is sufficient to show credibility and reliability. Eisenhauer v. State, 678 S.W.2d 974, 952 (Tex. Crim. App. 1984) (emphasis added).

In this case, the arrest warrant affidavit contained detailed information given to the police by Simien. An anonymous Crime Stoppers tip led the police to Simien. She informed the police that she used to work with both appellant and Brooks. Simien stated that she found out about Brooks=s death through another friend. Shortly thereafter, appellant contacted Simien and asked to meet with her because he had something to tell her. Simien stated that appellant then confessed to her that he had killed Brooks during a botched robbery.

Appellant contends that the probable cause affidavit supporting his arrest warrant is unlawful because it fails to detail any information about Simien=s credibility. Such information, however, is not necessary because Simien was a named informant who had personal knowledge of a crime in which she had no involvement. We recognize that 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). Viewed in their totality, the facts and circumstances submitted to the magistrate, as contained within the four corners of the affidavit, provided the magistrate with a substantial basis for finding probable cause to issue an arrest warrant for appellant. See Draper v. United States, 358 U.S. 307, 309, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959) (finding probable cause where informant gave detailed physical description of the defendant, the clothing he was wearing, the bag he was carrying, and his habit of walking fast); Whaley v. State, 686 S.W.2d 950, 951 (Tex. Crim. App. 1985) (holding probable cause existed where informant described defendant wearing a white shirt with colored trim and blue jeans, and the bag he was carrying); Curry v. State, 965 S.W.2d 32, 34 (Tex. App.CHouston [1st Dist.] 1998, no pet.) (finding probable cause where a detailed description of the defendant and his first name were provided); Vasquez v. State, 699 S.W.2d 294, 295 (Tex. App.CHouston [14th Dist.] 1985, no pet.) (finding probable cause established by detailed and comprehensive nature of informant=s tip). But, even if the arrest warrant were invalid based on a lack of probable cause, appellant still would not prevail because there was sufficient attenuation of any taint of any alleged illegal arrest in that there is no connection between the alleged illegal arrest and appellant=s two confessions. See Hankins v. State,132 S.W.3d 380, 389 (Tex. Crim. App. 2004). Appellant was given his Miranda warnings at least four times before each of his confessions. See id. at 390 (holding that in assessing whether taint in the evidence is sufficiently attenuated, courts consider whether appropriate warnings were given). Moreover, appellant made it clear from the beginning that he wanted to cooperate with the police and help them find evidence to assist them in their investigation. Appellant knowingly and voluntarily waived his rights before giving the confessions. There is no evidence that the police officers acted in any way to coerce appellant to aid them in their investigation of the crime. Appellant=s confessions did not have anything to do with any error allegedly contained in the arrest warrant affidavit. See Gibbs v. State, 819 S.W.2d at 821, 830 (Tex. Crim. App. 1991). We find no reversible error. Accordingly, we overrule appellant=s second issue.

Having overruled appellant=s appellate issues, we affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed December 1, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] Appellant also suggests that Simien was somehow involved in the robbery, but there is no evidence of any such involvement.