Steven Christopher Curry v. The State of Texas--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-95-029-CR

STEVEN CHRISTOPHER CURRY,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 94-10-15,622-CR

O P I N I O N

Steven Christopher Curry, pursuant to a plea-bargain agreement, pled guilty to the offense of capital murder. Tex. Penal Code Ann. 19.03 (Vernon 1994). The court assessed punishment at life in prison. Steven appeals on four points, each one asserting that the court erred in overruling his pre-trial motion to suppress. We will affirm the judgment.

Steven shot his parents, put their bodies in a closet, and set their house on fire to hide the murders. During the investigation, he made several incriminating statements to the police. He also made an oral and a written confession. On appeal, Steven complains that the court erred in failing to suppress the statements and confessions.

Steven filed a motion to suppress, alleging that "any and all statements" were in violation of Miranda v. Arizona, // the United States Constitution, and the Texas Constitution. Several witnesses testified at the hearing on the motion to suppress:

deputy michael glass

Michael Glass, a deputy with the Robertson County Sheriff's Department, testified that around 12:15 a.m. on September 18, 1994, he was dispatched to a reported house fire. The volunteer firemen had not been able to determine if any occupants were in the house. A Chevy Blazer was parked near the house. Over the course of an hour, Glass ascertained that Harold and Angela Curry resided in the house with their seventeen-year-old son, Steven. He learned that the Currys had two vehicles the Chevy Blazer and a red Nissan truck.

Around 2:30 a.m., in an attempt to locate Harold and Angela, Glass contacted Steven at his girlfriend's house. The Nissan truck was parked there. Glass informed Steven that his parents' house was burning and asked him if he knew where his parents were. Steven told Glass that his parents were in Humble visiting his aunt and uncle, Arthur and Sharon Curry. Glass told Steven that he could come look at the burning house if he wanted, gave Steven his business card, and left. Glass asked the sheriff's dispatcher to contact the aunt and uncle. The dispatcher spoke with Sharon Curry, who stated that Harold and Angela were not in Humble and that it was very unusual for Steven to be driving the Nissan truck.

Joseph Porter, a state fire marshall, was called in to help determine the cause of the fire. Porter asked that Steven be brought to the scene to help him determine the layout of the house. Officer Keith Pettit was dispatched to the girlfriend's house to ask Steven to come to the house. In the meantime, Glass walked around the perimeter of the house which was still too hot to enter. About seventy to eighty feet behind the house, near a barn, Glass saw a pair of women's eyeglasses lying on the ground. A short distance from the eyeglasses, he found a rubber glove. Inside the barn, Glass found what appeared to be the mate of the rubber glove. He also found a six- to eight-foot concrete "burn pit" in which he saw partially melted miniblinds and what appeared to be material from a terry cloth towel.

Steven, who was not yet a suspect, arrived at the scene around 6:20 a.m. with his girlfriend, Misty Harris. Steven, Glass, and Porter sat in a patrol car while Porter asked Steven questions in an attempt to ascertain the whereabouts of Harold and Angela. When Porter asked Steven where his parents were, Steven answered that they were at his maternal grandmother's house in Humble. Porter asked Steven how his parents could be out of town when both of the family's cars were in Franklin. Steven did not know. When asked why he had not come earlier to the house, Steven stated, "I didn't want y'all to make me look at something I didn't want to see."

Glass asked Steven to accompany him to the back of the house, showed him the women's eyeglasses, and asked Steven if he recognized them. Steven stated that he did not know whose they were and had never seen them before. Steven returned to sit in his truck. Glass then took Misty to look at the eyeglasses. She immediately identified them as Angela Curry's glasses. Steven's paternal grandparents, W.A. and Norma Curry, had arrived on the scene from Hearne. W.A. provided Glass with a photograph of Harold and Angela in which Angela was wearing the eyeglasses.

Glass walked over to the truck where Steven had been sitting for about fifteen minutes. He read Steven his Miranda warnings at 6:50 a.m., and Steven indicated that he understood the warnings. Glass told Steven that, because of the conflicting information Steven had given, he thought Steven was lying. Steven stated that he wasn't lying. Glass stated that Steven was not under arrest and was free to go. Steven remained seated in the truck for at least half-an-hour. At that time, Glass asked Steven if he would accompany him up to the house. As Steven and Glass approached the house, the volunteer fire chief called to Glass. Glass asked Steven to have a seat in the patrol car.

Inside the house, Porter and the fire chief had found the burned remains of two human bodies, lying side-by-side on their backs. Porter informed Glass that, because of the positions of the bodies, the victims had not died accidentally in the fire. Materials that appeared to be terry cloth and the plastic from a garbage sack were under one of the bodies. Glass returned to his patrol car and asked Steven to step out. As Glass reached for his handcuffs, Steven "of his own accord" turned his back towards Glass with his hands behind his back. Glass asked Steven if there was anything he wanted to tell him. Steven said, "No." Glass told Steven to take a seat in the patrol car.

deputy keith pettit

Keith Pettit, a Robertson County sheriff's deputy, testified that around 6 a.m. he was asked to go to Misty's house and ask Steven to come to the scene. He witnessed Glass read Steven his Miranda rights around 7 a.m. Around 9:15 a.m., while Steven was sitting in Glass' patrol car, Pettit initiated a conversation with Steven who orally confessed to the murders. The State did not seek to have this oral confession admitted.

deputy gerald yezak

Gerald Yezak, a Robertson County sheriff's deputy, testified that he first saw Steven around 6 a.m. at Steven's parents' house. Steven drove up in the Nissan truck with his girlfriend, Misty. He asked Yezak, "Did you find my parents yet?" Yezak left the crime scene to take Misty to the sheriff's department where she gave a statement.

When Yezak returned to the scene, Steven was sitting in a patrol car talking with Officer Pettit. Yezak got in the patrol car and asked Steven "what he knew about what was going on." Steven stated that all he knew was that his parents had left him a note that they had gone to Houston.

Later that morning, Yezak was approached by Pettit who said that Steven had admitted to killing his parents and burning the house to cover up the murders. Pettit told Yezak that Steven needed to go to the bathroom. Yezak retrieved Steven from the patrol car and told him to urinate in front of the car with his back to the road. When Steven finished urinating, Yezak asked him "if he felt better now." Steven responded, "Yeah, now that I admitted to it, I do." Yezak and Steven then walked around the perimeter of the house. Steven pointed to places in the rubble where evidence was later recovered. In particular, he indicated that a barrelled-action .22 semi-automatic rifle would be found where a closet had been.

Yezak testified that he and Ranger Ray Coffman read Steven his Miranda rights and tape-recorded his oral confession around 10 a.m. Steven also signed a card with written Miranda warnings. Around 11:30 a.m., Steven gave a written statement at the sheriff's office. Yezak testified that Steven was given Miranda warnings, that Coffman asked questions, and that he typed Steven's answers as he gave them. Steven also gave written permission for the officers to search the Blazer and the Nissan.

ranger ray coffman

Ray Coffman, a Texas Ranger, testified that he was asked to record Steven's oral statement. He stated that Yezak read Steven his Miranda rights while the tape recorder was going.

the confession

Steven's recorded and written confessions state that he was angry with his parents. On Friday morning, September 16, he retrieved a .22 rifle from his parents' closet and loaded it with eighteen live rounds. Around 1:30 p.m., while his mother was sitting on the back steps smoking a cigarette, Steven shot her in the head through the kitchen door. Because she was "hollering," Steven shot her again in the head. He wrapped her head first in a towel and then in a plastic garbage sack. He dragged the body into a storage closet. Steven retrieved a gas can from the barn, drove to Franklin, bought gasoline, and returned home. He collected a bloody towel, a door mat, and the miniblinds from the kitchen door. He put them in the concrete pit in the back yard and burned them.

Around 6 p.m., Steven's father arrived home. As his father entered the kitchen, Steven aimed the rifle at his chest and fired "about five times." Steven shot his father "one more time almost directly between the eyes and he stopped hollering." He returned the rifle to his parents' closet. He then wrapped his father's head in a towel and a garbage sack, put his father's body in the storage room next to his mother's body, and locked the door. Steven left the house and went to the movies with his girlfriend, Misty. He spent Friday night at Misty's house.

On Saturday, Steven spent the day watching rental movies and visiting Misty's grandmother's boyfriend in the hospital. He returned to his parents' house around 10:15 p.m., poured gasoline throughout the house, and lit the fire. He then went to Misty's house to spend the night.

POINTS OF ERROR

All four of Steven's points assert that the court erred in overruling his motion to suppress the confessions. In a hearing on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). If the court's resolution of a controverted issue is supported by the record, a reviewing court should not disturb that decision. Muniz v. State, 851 S.W.2d 238, 252 (Tex. Crim. App.), cert. denied, U.S. , 114 S. Ct. 116, 126 L. Ed. 2d 82 (1993). We limit our review of the trial court's rulings, both as to the facts and the legal significance of those facts, to a determination of whether the court abused its discretion. See DuBose v. State, 915 S.W.2d 493, 496 (Tex. Crim. App. 1996). Even if we would have decided the issue differently, we will not intercede if the court's ruling was within the "zone of reasonable disagreement." Id. at 496-97.

Steven's first point asserts that the court erred in failing to suppress his oral and written statements because he had invoked his right to remain silent. Glass read Steven his Miranda rights shortly before 7 a.m. Steven indicated that he understood his rights. Glass told Steven that he thought he was lying. Steven denied that he was lying. Glass left Steven alone in his truck for over half an hour. After the bodies were found, Glass handcuffed Steven and asked him if there was anything he wanted to tell him. Steven answered, "No." He asserts that the latter was an invocation of his right to remain silent.

Prior to any questioning, a person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. A defendant may waive these rights, provided the waiver is made voluntarily, knowingly, and intelligently. Id. If the defendant "indicates in any manner" that he does not wish to be interrogated, the police may not question him. Id.

The threshold question is whether Curry exercised his right to remain silent. Murphy v. State, 766 S.W.2d 246, 249 (Tex. Crim. App. 1989). "There need not be a formal invocation of constitutional or Miranda rights. Anything said or done by the defendant that could reasonably be interpreted as a desire to invoke these rights should be sufficient to halt questioning." Watson v. State, 762 S.W.2d 591, 598 (Tex. Crim. App. 1988). Whether a defendant invoked his right to remain silent is decided on the totality of the circumstances on a case-by-case basis. Id. at 597.

Prior to receiving his Miranda rights, Steven seemingly cooperated with the investigating officers in their attempts to locate his parents. He spoke with several officers and accompanied Officer Glass around the perimeter of the house. Glass read Steven his Miranda rights around 7 a.m. and he indicated that he understood the warnings. Steven did not invoke his right to remain silent; rather, he continued to speak with Officer Glass and denied that he was being untruthful and repeated that his parents were in Houston. Steven had been left alone in his truck for half an hour when Glass asked him to accompany him into the house. Glass and Steven were about to go into the house when the bodies were found.

When Glass handcuffed Steven, he asked Steven "if there was anything he'd like to tell me and he said, `no.'" Glass did not ask Steven any further questions. Glass stated that he did not think Steven wanted to talk to him, "Sometime the investigator and a witness or suspect or whatever just don't click." Glass further testified, "[Steven] didn't say he didn't want to talk anymore. He was answering a question I asked." Officer Pettit testified that he had observed Steven being administered his Miranda warnings. He testified that he was not aware of Steven's statement to Officer Glass. Steven's initial comments to Officer Yezak were in response to Yezak's question, "Do you feel better?"

Reiterating the standard of review, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses as well as the weight to be given to their testimony. Romero, 800 S.W.2d at 543. If the court's determination is supported by the record, we should not disturb that decision. Muniz, 851 S.W.2d at 252. In the context of the morning's events, Steven's actions and statements, and Officer Glass' testimony, the trial judge did not find that Steven's statement to Officer Glass was an invocation of the right to silence. We cannot say that the court's ruling was outside the "zone of reasonable disagreement." DuBose, 915 S.W.2d at 497. We overrule point one.

In his second point, Steven asserts that the court erred in failing to suppress his statements because he had not affirmatively waived his right to remain silent and to have legal counsel. Steven concedes that he was given Miranda warnings prior to his giving his recorded statement and his written statement. However, he argues that he never made an "affirmative statement" waiving his rights.

The transcription of Steven's recorded confession reveals that he was read his statutory rights. He affirmatively answered that he understood those rights. His written statement contains a paragraph of the required warnings. He initialled the paragraph. Directly following the warnings paragraph, the statement contains the following paragraph:

Prior to and during the making of the statement, I have and do hereby knowingly, intelligently, and voluntarily waive the above explained rights and I do make the following voluntary statement to the aforementioned person of my own free will and without any promises or offers of leniency or favors, and without compulsion or persuasion by any person or persons whomsoever.

Steven initialled the waiver paragraph. Thus, we believe that the State established by a preponderance of the evidence that he waived his constitutional and statutory rights. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473 (1986); see also Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1996) (on rehearing). We overrule point two.

In his third point, Steven asserts that the court erred in failing to suppress his unrecorded statement to Officer Yezak concerning the location of the murder weapon. An unrecorded oral statement of an accused may be admissible if the statement "contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as . . . the instrument with which he states the offense was committed." Tex. Code Crim. Proc. Ann. art. 38.22, 3(c) (Vernon Supp. 1996). Steven argues that there is "no evidence that any fact in the statement was later found to be true."

Steven told Officer Yezak that he had returned the murder weapon to his parents' closet after the shootings. He pointed to the general area of the rubble where the rifle would be found. Yezak told another officer where to look for the weapon. Yezak testified that the weapon was found "right where he said it was." We overrule point three.

In his final point, Steven asserts that the court erred in failing to suppress his unrecorded statements about the eyeglasses found behind the house. He argues that the State sought to introduce the statements under article 38.22, section 3(c) and that the State failed to show that the statement was "true." Id. The constitutional and statutory rights to remain silent apply only to statements made to the police as a result of custodial interrogation. Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Tex. Code Crim. Proc. Ann. arts. 38.22, 38.23. At the point in time when Steven made the statements about the glasses, no crime had been discovered and he was neither a suspect nor in custody. The court did not err in failing to suppress the statements. We overrule point four.

Having overruled all of Steven's points, we affirm the judgment.

BILL VANCE

Justice

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 25, 1996

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