Joe Louie Glover v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00017-CR

Joe Louie GLOVER,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CR-0651

Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 28, 2005

AFFIRMED

Joe Louie Glover appeals his capital murder conviction and life sentence. Glover s sole issue on appeal is that the trial court erred by denying his request for a jury instruction regarding the voluntariness of his confession. Because we hold the trial court correctly denied Glover s request for a jury instruction, we affirm the trial court s judgment.

Factual Background

On November 7, 2003, Detective Tim Angell received a tip from Rudy Rodriguez, detained on an unrelated offense, implicating Glover in a murder during the Wah-Lee Grocery Store robbery. That same day, Glover, riding in the passenger seat of a Jeep Cherokee with his wife and children, was stopped a few blocks from his house and arrested on an outstanding municipal court warrant. He was then taken to his house. Officer Mark Harris read Glover his rights; Glover said he understood them; he signed a Miranda warnings card, and then waived those rights. Glover also signed a consent to search form and the officers then searched his home. The officers found a stolen vehicle in his backyard and bullets in his room that were consistent with the kind recovered at the Wah-Lee crime scene. Glover was transported to the homicide office by Harris and, at Detective Tim Rawson s request, Glover s wife and children also came to the station.

Glover was taken to a room in the homicide office to be interviewed, while his wife and children were taken to another office within the police station for his wife to be interviewed. Detectives Angell and Rawson interviewed Glover, first asking him about the stolen car found in his backyard, and then about the murder/robbery at the Wah-Lee Grocery Store. Glover remained relaxed and cooperative while discussing the stolen car, but became nervous and more concerned when asked about the murder. He was never told by the detectives interviewing him that his wife would be jailed or that his children would be taken from him; neither Glover nor his wife were ever threatened. The detectives testified that at no time was coercion, force or trickery used to induce Glover to give a statement. He was never denied food, drink, cigarettes, or access to a restroom. After about 10 to 20 minutes, Glover confessed to the Wah-Lee Grocery murder. Rawson typed out Glover s statement and then asked Glover to read it and make any desired changes. Glover read the statement, made no changes, and signed it in the presence of civilian witnesses. He never asked for an attorney. After signing the statement, Glover was allowed to see his wife and children. He was then booked into jail on the municipal court warrant and, later that evening, he was served with the capital murder warrant in jail.Analysis

Glover argues in his sole issue on appeal that the trial court erred in denying his request to instruct the jury on the voluntariness of Glover s confession because there was some evidence presented to the jury that the confession was not voluntarily made. Glover specifically contends that the following trial evidence sufficiently raised the issue of voluntariness of the confession: (1) testimony by Detective Rawson that Glover did not actually write the inculpatory statement with his own hand, but only reviewed and signed it; (2) testimony by Detectives Rawson and Angell that the interrogation which resulted in the written statement was not recorded; and (3) the fact that the police were holding his wife and children at the police station during his interrogation.

Glover s contentions are without merit. Texas Code of Criminal Procedure article 38.22, 6, provides that where a question is raised as to the voluntariness of a confession, and after a finding by the trial court that the confession is voluntary, evidence regarding voluntariness may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the statement was made voluntarily, the jury should not consider it. Tex. Code Crim. Proc. Ann. art. 38.22, 6 (Vernon 2005); Miniel v. State, 831 S.W.2d 310, 316 (Tex. Crim. App. 1992). Section 7 of article 38.22 further adds that when the voluntariness issue is raised by the evidence, the trial court shall instruct the jury on the law pertaining to the statement. Tex. Code Crim. Proc. Ann. art. 38.22, 7 (Vernon 2005); Miniel, 831 S.W.2d at 316. First, however, some evidence must be presented to the jury that raises the voluntariness issue before the requested instruction is required. Butler v. State, 872 S.W.2d 227, 236 (Tex. Crim. App. 1994). Only when some evidence is presented that a confession is not voluntary is the matter put in issue. Miniel, 831 S.W.2d at 317 (emphasis added). Thus, we must determine whether any evidence was presented to the jury which shows the confession was not voluntary.

Glover argues that the voluntariness issue was properly raised during both the pre-trial hearing and the guilt/innocence phase of trial. We need not look to the pre-trial hearing because that testimony was not presented to the jury. Tex. Code Crim. Proc. Ann. art. 38.22, 6; Butler, 872 S.W.2d at 236 ( before the requested instruction is required, some evidence must be presented to the jury which raises the issue of voluntariness )(emphasis added). But even a review of the evidence admitted in the guilt/innocence phase does not reveal any evidence that Glover s statement was involuntary. Glover neither testified at trial nor called any witnesses on the issue of the voluntariness of his confession. Both Rawson and Angell, the detectives who took Glover s statement and the only people in the room at the time of the confession, testified that there was no coercive conduct inducing the statement. Detective Angell was asked on direct examination, did you ever see any type of coercion or trickery or force being used on the defendant? Angell answered that he did not. Angell further testified that Glover was not threatened, or deprived of food, drink, or access to a bathroom. Detective Rawson testified that Glover did not show any signs of intoxication; he seemed to understand what was being said; he did not appear agitated; he did not have trouble speaking English; he was not promised anything in exchange for his statement; he was not coerced or threatened; and he never requested a lawyer. Rawson also stated that when Glover requested a cigarette, he was given one, and when Glover requested to see his family after the statement, his request was granted. No evidence presented on direct examination raised an issue as to whether Glover s statement was involuntary. Evidence presented by the State in anticipation of an attack upon the voluntariness of a confession does not put voluntariness in issue. Miniel, 831 S.W.2d at 317.

On cross examination, Rawson was asked whether the statement was written in Glover s own hand. He said it was not, but Glover had read the statement and signed it. A plain reading of article 38.22, 1, unambiguously provides that either a statement signed by the accused or a statement made by the accused in his own handwriting is a written statement for purposes of article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22, 1 (Vernon 2005); see Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995) ( [a]s long as the confession is voluntary, law officers are currently permitted to reduce defendants oral statements into writing; they are even allowed to paraphrase the statements ). A defendant need not write the statement with his own hand, as long as he signs it. Heiselbetz, 906 S.W.2d at 512; see also Bell v. State, 724 S.W.2d 780, 793 (Tex. Crim. App. 1986). Also on cross examination, Rawson conceded that Glover s statement was not recorded. While article 38.22 requires all oral or sign language statements made while in custody to be electronically recorded, it does not require written statements to be electronically recorded. Tex. Code Crim Proc. Ann. art. 38.22, 3. Glover s confession was not an oral statement for purposes of article 38.22. See id.

Finally, Glover argues that his statement was the product of coercion because the police were holding his wife and children at the station. Glover knew his wife and children were at the station; however, no evidence was presented showing they were threatened, or used against Glover to force or coerce him to confess. Mere presence of a suspect s wife and children at the police station during his interrogation does not alone constitute evidence of police coercion. See Lane v. State, 933 S.W.2d 504, 512 (Tex. Crim. App. 1996)(whether a confession was involuntary is determined from the totality of the circumstances, such as the length of detention and interrogation, whether the defendant was permitted access to his family or an attorney, and whether physical brutality was used). Here, Glover s interrogation was not lengthy and he was not denied access to his family.

Having reviewed the record, we find nothing showing the issue of the confession s voluntariness raised before the jury, and the requested jury instruction was therefore not required. See Butler, 872 S.W.2d at 236-37; Miniel, 831 S.W.2d at 317. Accordingly, Glover s issue on appeal is overruled, and the trial court s judgment is affirmed.

Phylis J. Speedlin, Justice

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