Gerald Howe v. The State of Texas--Appeal from 102nd District Court of Bowie County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00040-CR

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GERALD HOWE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 102nd Judicial District Court

Bowie County, Texas

Trial Court No. 99-F-297-102

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

A jury found Gerald Howe guilty of aggravated kidnapping of a two-year-old girl and assessed punishment at ninety-nine years' imprisonment. // See Tex. Pen. Code Ann. 20.04(a)(3), (4) (Vernon 2003). Howe perfected appeal to this Court and raises two points of error. // We overrule both points of error and affirm the trial court's judgment.

Jury Instruction

In his first point of error, Howe argues the trial court erred by denying his request for a jury instruction on the voluntariness of his alleged confession. After his arrest, Howe made a written confession to law enforcement officers. Howe admitted taking the victim from her front yard, secreting her in some nearby woods, and later masturbating while he used his fingers and tongue to touch the victim's vagina. Before the jury trial, the trial court overruled Howe's motion to suppress his written confession. // Later during trial, Howe asked the trial court to charge the jury that it must disregard the evidence regarding Howe's confession to having kidnapped the victim the jury found, beyond a reasonable doubt, the confession was lawfully obtained. The trial court denied Howe's request.

"The trial court must instruct the jury to disregard illegally obtained evidence if the defendant raises a fact issue concerning the manner in which the evidence was obtained and requests the instruction." Mendoza v. State, 88 S.W.3d 236, 239 (Tex. Crim. App. 2002). That evidence can be strong, weak, contradicted, or even unbelievable. Id. Any evidence obtained by police in violation of the defendant's constitutional rights may not be admitted. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon Supp. 2004).

"A trial court is required to include a properly worded Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained." Thomas v. State, 723 S.W.2d 696, 707 (Tex. Crim. App. 1986), cited favorably in, Brownlee v. State, 944 S.W.2d 463, 467 (Tex. App. Houston [14th Dist.] 1997, pet. ref'd). In Thomas, the defendant never controverted facts surrounding his breath test refusal. The Texas Court of Criminal Appeals concluded no Article 38.23 instruction was required because there was no factual dispute as to how the evidence was obtained. Thomas, 723 S.W.2d at 707.

During the jury trial of the case now before us, Detective Steve Shelley testified that, before interviewing Howe, Shelley stated to Howe that he could possibly get the death penalty. On appeal, Howe concedes he did not testify about the effect the threat of the death penalty had on the voluntariness of his confession, nor was there any such evidence from another witness. Nonetheless, Howe contends he raised a fact issue "as to compulsion or persuasion in obtaining a statement from [Howe]" through Shelley's testimony.

Shelley testified that he properly advised Howe of his Miranda // rights; that Howe appeared to understand his rights; that Howe freely and voluntarily gave the confession; and that Federal Bureau of Investigation agent Carl Malloy was present at all times when the statement was taken.

Though Shelley told Howe the range of punishment might include the death penalty, there was no evidence before the jury to contradict Shelley's claim that Howe's statement was voluntarily given. There were no inconsistencies in Shelley's testimony as to how the confession was obtained, and there is no contradictory evidence from any source regarding the voluntariness of Howe's written statement. Cf. Villareal v. State, 116 S.W.3d 74, 83 84 (Tex. App. Houston [14th Dist.] 2001, no pet.) (appellant did not refer court to evidence in record raising factual dispute as to how evidence was obtained and pointed to no inconsistencies in testimony). In this case, there was no factual dispute as to how the evidence was obtained. The trial court therefore had no duty to give an Article 38.23 instruction. We overrule Howe's first point of error.

Prejudicial Evidence

In his second point of error, Howe claims the trial court erred by admitting the testimony of Denise Bailey. Bailey testified Howe came into her store in the evening hours before the kidnapping and asked to buy a condom. Howe objected to the testimony based on relevance. The trial court overruled the objection and admitted the testimony. On appeal, Howe contends this evidence was irrelevant because it "was introduced only to demonize the defendant."

We review a trial court's decision to admit or exclude evidence for abuse of discretion. Glover v. State, 102 S.W.3d 754, 763 (Tex. App. Texarkana 2002, pet. ref'd). "Relevant evidence" is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. We may not reverse a trial court's decision to admit or exclude evidence unless the trial court's decision is outside the "zone of reasonable disagreement." Glover, 102 S.W.3d at 763.

The indictment charged Howe with abducting the victim with the intent to facilitate the commission of an aggravated sexual assault or to violate the victim sexually. See also Tex. Pen. Code Ann. 20.04(a)(3), (4). Howe admitted sexually assaulting the victim during the kidnapping. In its brief to this Court, the State correctly points out that Howe's theory of the case was that, because the State could not prove Howe intended to sexually assault the victim at the time he kidnapped her, the jury should find Howe "not guilty." Thus, whether Howe had intended to sexually assault the victim was relevant to the case.

According to Howe's statement, he had seen the victim and one of her friends as Howe rode his bicycle near the victim's house on the day before the kidnapping. That night he bought a condom. The next morning he woke up and, according to his confession, began thinking about the victim and her friend.

The trial court's decision to admit the evidence about Howe purchasing a condom the night before the kidnapping was within the zone of reasonable disagreement. The evidence about Howe's condom purchase tended to make the existence of a material fact that Howe had planned to sexually assault the victim during the kidnapping more probable than it would be without the evidence. Accordingly, the trial court did not err by denying Howe's relevancy objection. We overrule Howe's second point of error.

We affirm the trial court's judgment.

Jack Carter

Justice

Date Submitted: March 12, 2004

Date Decided: March 16, 2004

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