Mark Edward Doherty v. The State of Texas--Appeal from 147th District Court of Travis County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-244-CR
MARK EDWARD DOHERTY,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 0935291, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of aggravated robbery and assessed punishment, enhanced by a previous felony conviction, at imprisonment for forty-two years. Tex. Penal Code Ann. 29.03 (West 1994). (1) We will affirm.

In his only point of error, appellant contends the district court erred by refusing to suppress his written confession. Appellant contends the confession was involuntary because of an "implied promise of a benefit" made by the person who took the confession, Austin police officer Steve Hamblin. Questioned by defense counsel outside the jury's presence, Hamblin repeatedly denied making any promises to appellant in exchange for the confession. Hamblin did, however, acknowledge telling appellant that "the information would be presented to the District Attorney and that they would go with it from there." Asked by counsel if a person in appellant's position would understand that to mean that "he is going to get some slack . . . if he cooperates," Hamblin replied, "Perhaps some slack, but I don't use the words, and whatever they take from what I say, that is their decision, that's their interpretation."

A confession is not admissible if it is given as a result of a benefit positively promised to the defendant by one in authority and the promised benefit is of such character as would likely influence a defendant to speak untruthfully. Freeman v. State, 723 S.W.2d 727, 729 (Tex. Crim. App. 1986); Hardesty v. State, 667 S.W.2d 130, 134 (Tex. Crim. App. 1984). Appellant refers us to Dunn v. State, 721 S.W.2d 325 (Tex. Crim. App. 1986), and Sterling v. State, 800 S.W.2d 513 (Tex. Crim. App. 1990). In Dunn, the defendant was told that a confession may be used "for or against" him. The court held that this was an improper inducement because it held out the possibility of a benefit. Dunn, 721 S.W.2d at 341. The defendant in Sterling was told the same thing, and also told that "they might go easy" on him if he confessed. Again, the confession was deemed involuntary. Sterling, 800 S.W.2d at 518-19. In each case, the officer who took the confession expressly suggested that the defendant might benefit from confessing. In the cause before us, Hamblin did not tell appellant that a confession might be used for him or that things might go easy for him if he confessed.

We agree with the State that this cause is controlled by Muniz v. State, 851 S.W.2d 238 (Tex. Crim. App. 1993). In that case, the defendant was told by the officer who took his confession that defendants who confess are sometimes shown lenience. The Court of Criminal Appeals held that this was merely a statement of fact and did not constitute a positive promise of lenience in return for a confession. Id. at 254. Hamblin's statement to appellant was more innocuous than the statement in Muniz. Hamblin did not tell appellant that the district attorney is sometimes lenient with defendants who confess. Appellant was promised only that the district attorney would be told he cooperated. This was little more than a statement of the obvious fact that appellant's confession would come to the attention of the prosecutor. Hamblin's statement was not a positive promise of a benefit should appellant confess.

It may be that appellant hoped to benefit by confessing. If he did, this did not render his confession involuntary in the absence of any positive promise of a benefit made by a person in authority. The point of error is overruled.

The judgment of conviction is affirmed.

 

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: February 1, 1995

Do Not Publish

1. There is no substantive difference between section 29.03 as it now reads and as it read at the time of this offense.