Blake Everett Dollgener v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-01-363-CR

BLAKE EVERETT DOLLGENER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 254889CR

O P I N I O N

Eighteen-year-old Blake Everett Dollgener had a problem controlling his temper. Dollgener and his mother had an argument about his use of, and possible damage to, his brother s golf cart. His mother warned that if the cart was damaged, Dollgener s car would be sold to pay for the cart s repair or replacement. Dollgener became angry and broke a figurine in the house with a baseball bat. He threatened his mother that he would hit her too. His mother left the house and called his father. His father called 911. Meanwhile, Dollgener broke out windows in his car and a family pickup with the bat.

When the sheriff s deputies arrived, they could see that Dollgener had a shotgun. Deputy Wilson drew his weapon. Later, unknown to Wilson, Dollgener aimed the shotgun at him. Dollgener fired the weapon at Wilson. Six pellets hit Wilson in the forehead. He survived his injuries.

Dollgener was arrested and charged with attempted capital murder and aggravated assault of a public servant. He presented an insanity defense. The jury found him guilty of aggravated assault and assessed punishment at ten years in prison. Dollgener raises four issues on appeal. We affirm.

Written Statement

Dollgener argues his first two issues together. He contends that the trial court erred in denying his motion to suppress his written statement and in overruling his objection to the admission of his written statement. Specifically, he argues that his statement was involuntary as it was given during or immediately after a rage session.

Law

An accused must give his confession voluntarily before it can be used against him. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979); Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995); Sendejo v. State, 953 S.W.2d 443, 447-48 (Tex. App. Waco 1997, pet. ref d). Once the accused contests the admission of his statement on the ground of involuntariness, the due process guarantee requires the trial court to hold a hearing on the admissibility of the statement outside the presence of the jury. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)(citing Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)). See also Tex. Crim. Proc. Ann. art. 38.22 6 (Vernon 1979).

Voluntariness is determined by a totality of the circumstances. See Spears v. State, 801 S.W.2d 571, 576 (Tex. App. Fort Worth 1990, pet. ref d). At the hearing, the trial court is the sole judge of the weight and credibility of the evidence. Alvarado, 912 S.W.2d at 211. Evidence of mental retardation and mental impairment is a factor to be considered by the court in determining from the totality of the circumstances whether the accused voluntarily and knowingly waived his rights prior to confessing. Bizzarri v. State, 492 S.W.2d 944, 946 (Tex. Crim. App. 1973); Harner v. State, 997 S.W.2d 695, 699 (Tex. App. Texarkana 1999, no pet.).

On review, we give considerable deference to the trial court's determination of historical facts or determination of a mixed question of law and fact which turns on an evaluation of a witness s credibility and demeanor and review de novo the court's application of the law. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

Testimony

At the hearing on the motion to suppress, Detective Mike Freeman of the Ellis County Sheriff s Office testified that on the date of the shooting and after Dollgener was arrested, he took a written statement from Dollgener. He advised Dollgener of his constitutional rights. Freeman said he had Dollgener initial the statement form which contained the constitutional rights if he understood those rights. Dollgener complied. Freeman testified that he believed Dollgener understood all of his rights. Dollgener then agreed to waive those rights.

Freeman stated that Dollgener did not appear to be under the influence of any drug or alcohol. He also did not appear agitated. To Freeman, Dollgener was fairly calm, alert and coherent. Freeman stated that Dollgener was able to respond to his questions. He believed Dollgener knew exactly what had happened earlier at his house.

One of the State s experts, Dr. Richard Rogers, testified that after reviewing Dollgener s medical records and interviewing law enforcement officers who observed Dollgener, he concluded Dollgener had the capacity to waive his rights and make a voluntary statement. One of Dollgener s experts, Dr. Daniel Matthews, testified that his earlier rage episode would not affect the voluntariness of his statement taken 3 hours later. Another expert called by Dollgener, Dr. James Norcross, could not say Dollgener was or was not capable of giving a voluntary statement. His concern was with the reliability of the statement rather than its voluntariness.

Freeman testified that Dollgener did not ask for an attorney. He also stated he did not coerce Dollgener, nor did he promise Dollgener anything in return for a statement. Freeman then wrote out the statement as Dollgener related the events of the shooting. Dollgener was given an opportunity to read the finished statement and to make any necessary corrections. Freeman witnessed Dollgener sign the statement on each of its three pages.

Dollgener collaterally contends that the trial court erred in its decision because it ruled on the motion to suppress before it heard the testimony of another expert, Dr. Larry Fisher. Dollgener, however, told the trial court he had no other evidence for the court to consider prior to its ruling. Even if the trial court had considered Dr. Fisher s testimony prior to ruling on the motion, the doctor did not offer an opinion on the voluntariness of Dollgener s statement.

At trial, Mike Freeman testified as to the voluntariness of Dollgener s confession, but stated nothing different from his testimony at the suppression hearing.

Application

After reviewing the record, we cannot say that the trial court erred in denying Dollgener s motion to suppress his statement or that it erred in admitting Dollgener s statement over his objection. His first and second issues are overruled.

Instructed Verdict

In his third issue, Dollgener contends the trial court erred in overruling his motion for instructed verdict of not guilty by reason of insanity. Dollgener argues that his two physicians established he was legally insane. At trial, Dollgener only requested an instructed verdict on two issues: 1) that the State failed to prove Dollgener knew or should have known the victim was a peace officer; and 2) that the State failed to prove by a preponderance of the evidence that the victim was a peace officer. Dollgener made no request for an instructed verdict of not guilty by the reason of insanity. Thus, his issue on appeal does not comport with his argument at trial and nothing is preserved for our review. Tex. R. App. P. 33.1; see Jenkins v. State, 912 S.W.2d 793, 814-15 (Tex. Crim. App. 1993); In re C.Q.T.M., 25 S.W.3d 730, 738 (Tex. App. Waco 2000, pet. denied). Issue three is overruled.

Jury Argument

Lastly, Dollgener argues that the trial court erred in overruling his motion for mistrial due to improper jury argument by the State during the punishment phase of his trial. During the close of the State s argument, the prosecutor stated:

Who will be his next victim? Well, will it be a family member? Someone he works with? There is so much in the news about teenagers and violence, taking guns to school. There s always some explanation or some excuse. We ve been hearing a lot of excuses during this trial.

Have you ever felt like that it s time to do something about that, that we do something about

At that point, Dollgener objected to the argument pertaining to other cases and other teenagers. The court sustained the objection, instructed the jury to disregard the statement about what s in the news about teenagers and violence and taking guns to school, and denied Dollgener s motion for mistrial.

For the purpose of the following analysis we need not determine if the actual argument was improper because the trial court sustained the objection. See Carlock v. State, 8 S.W.3d 717, 724 (Tex. App. Waco 2000, no pet.). When the trial court sustains an objection and grants a request for an instruction for the jury to disregard but denies the motion for mistrial, the issue becomes whether the trial court erred in denying the mistrial. Carlock, 8 S.W.3d at 723; Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App. Fort Worth 1997, pet. ref d). The trial court s decision is error only if the argument is extreme, manifestly improper, injects new and harmful facts into the case or violates a mandatory statutory provision and was thus so inflammatory that its prejudicial effect cannot be reasonably removed from the minds of the jury by an instruction to disregard. Carlock, 8 S.W.3d at 723; Washington v. State, 822 S.W.2d 110, 118 (Tex. App. Waco 1991), rev d on other grounds, 856 S.W.2d 184 (Tex. Crim. App. 1993). See also Trent v. State, 925 S.W.2d 130, 133 (Tex. App. Waco 1996, no pet.).

If the instruction cured any prejudicial effect caused by the improper argument, the reviewing court should find that the trial court did not err. Carlock, 8 S.W.3d at 723-24. If the instruction did not cure the prejudicial effect, error results, and the reviewing court proceeds with a harm analysis. Id. at 724; Washington, 822 S.W.2d at 118.

Dollgener equates the State s argument with a demand that the community expects a certain punishment. This, the State cannot do. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990). Nevertheless, we do not find that the State s argument rises to the level of an improper request for a certain punishment that the community demands.

But even if the argument was improper, the trial court s instruction cured the prejudicial effect, if any, of the State s argument. Dollgener s fourth issue is overruled.

Conclusion

Having overruled each of Dollgener s issues on appeal, we affirm the judgment of the trial court.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed June 18, 2003

Do not publish

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