Ronald Wayne Turner v. The State of Texas--Appeal from 3rd District Court of Houston County

NO. 12-03-00254-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RONALD WAYNE TURNER, APPEAL FROM THE 3RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Ronald Wayne Turner appeals his conviction of murder, for which he was sentenced to imprisonment for life. Appellant raises two issues on appeal. We affirm.

Background

Appellant and the victim, Shawna Martinez, lived with Appellant s parents, Curtis and Linda Turner. On the morning of October 9, 2002, Appellant called to Linda Turner for help stating that he could not wake up Martinez. Linda Turner went to Appellant s room where Appellant was attempting to revive Martinez, whose body was covered with bruises. Linda Turner subsequently called 9-1-1. When the police arrived, Linda Turner gave them permission to search the premises, which they did. Later that day, Linda Turner and Appellant went to the Grapeland Police Department and each gave written statements.

On October 12, 2002, Appellant was arrested in Elkhart, Texas on a misdemeanor warrant by Texas Ranger William R. Flores, who was handling the investigation of the matter. Appellant was read his Miranda // warnings. Thereafter, Appellant waived his rights and agreed to submit to interrogation. Following his four-hour interrogation, during which multiple breaks were taken, Appellant gave a written statement. In his written statement, Appellant admitted to placing his hands on Martinez s mouth and throat briefly to keep her quiet while the two were arguing, but denied killing her. After making the written statement, Appellant was permitted to call Linda Turner. During the ensuing phone conversation, Flores overheard Appellant tell Linda Turner that he had caused Martinez s death by choking her. Appellant s October 12 written statement as well as his oral statement to Linda Turner were admitted into evidence over Appellant s objection.

Following the close of evidence and argument of counsel, a charge conference was conducted. Appellant objected to the charge as follows:

I would request that the Charge with respect to murder under Paragraph 2 read as follows: A person acts intentionally or with intent with respect to a result of his conduct when it is his conscious objective or desire to cause the result. A person acts knowingly or with knowledge with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. That is the charge that I would ask that the Court give with respect to the offense of murder and I would object to the Court instructing the jury additionally on that matter with respect to the nature of his conduct.

The trial court overruled Appellant s objection. Ultimately, the jury found Appellant guilty as charged. After a hearing on punishment, the trial court sentenced Appellant to imprisonment for life. This appeal followed.

Charge Error

In his first issue, Appellant argues that the trial court committed reversible error in its charge to the jury because it failed to limit its definitions of intentionally and knowingly to the result of Appellant s conduct. The court s charge to the jury read, in pertinent part, as follows:

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Murder is a result of conduct offense. See Medina v. State, 7 S.W.3d 633, 639 (Tex. Crim. App. 1999); Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). As such, it is error for a trial judge to not limit the definitions of the culpable mental states as they relate to the conduct elements involved in the particular offense. See Cook, 884 S.W.2d at 491. In other words, a jury charge that defines intentionally or knowingly as it relates to the nature of conduct as well as the result of conduct is incorrect. See Medina, 7 S.W.3d at 639.

While the State concedes that the trial court erred in its aforementioned instructions to the jury, it contends that such error was not harmful. Not every error in a charge requires reversal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). We must conduct a harm analysis to determine if the error caused actual harm to the defendant requiring reversal of the conviction. Id.; see also Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994). In assessing harm from the inclusion of improper elements in the definitions of culpable mental states, we may consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge. See Hughes, 897 S.W.2d at 296.

When we review a charge for alleged error, we must examine the charge as a whole, considering the workable relationship between the abstract parts of the charge and the application part, which applies the abstract law to the facts of the case. See Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App. Dallas 1998, pet. ref d). The abstract paragraphs of the charge instruct the jury regarding the meaning of concepts and terms as used in the application paragraphs of the charge. Id. The application paragraph authorizes a conviction. See id.

Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious. See Medina, 7 S.W.3d at 640. In a scenario where the definitions of intentionally and knowingly respectively set forth multiple, alternative types of conduct, it becomes apparent which conduct element applies to which offense when such terms are viewed in their factual context. See, e.g., Hughes, 897 S.W.2d at 296.

In the case at hand, the application paragraph, with respect to murder, stated as follows:

Now if you find from the evidence beyond a reasonable doubt that on or about the 9th day of October, 2002, in Houston County, Texas, the defendant RONALD WAYNE TURNER, intentionally or knowingly caused the death of an individual, Shawna Martinez, by strangling the said Shawna Martinez with his hands or by the use of an unknown object then you will find the defendant guilty of Murder as charged in the indictment.

As the application paragraph correctly instructed the jury that they must find beyond a reasonable doubt that Appellant intentionally or knowingly caused the death of Shawna Martinez before it could find Appellant guilty of murder, we hold that the fact that the abstract definition of intentionally and knowingly was erroneous did not harm Appellant. See, e.g., Barcenes v. State, 940 S.W.2d 739, 744 (Tex. App. San Antonio 1997, pet. ref d). // Appellant s first issue is overruled.

Motion to Suppress

In his second issue, Appellant argues that the trial court erred in admitting statements Appellant made following his arrest on October 12, 2002, which was illegal because it was not made pursuant to a lawful arrest warrant. The State initially argues that Appellant has failed to preserve error on his first issue because his objection to the trial court was not specific enough to apprise the court of his complaint. We disagree.

Preservation of Error

At the hearing on his motion to suppress, Appellant argued as follows:

I did have one additional objection that I think will be cured but I think I need to make for the record, that is that there s no evidence that he was in custody as a result of a lawful warrant.

....

I don t think there s any testimony that I just want to be clear on this, there s no testimony that there was a lawful warrant that placed him in custody.

Furthermore, in his motion to suppress, Appellant argued that

[t]he alleged statements, both oral and written, were the product of an unlawful arrest, illegal detention, and an unlawful search and seizure in direct violation of the Fourth and Fourteenth Amendments to the United States Consitution and Article 38.23 of the Texas Code of Criminal Procedure.

To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. See Tex. R. App. P. 33.1(a); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh g). Furthermore, a complaint on appeal must comport with the trial objection in order to sufficiently preserve error. See Curry v. State, 910 S.W.2d 490, 495 (Tex. Crim. App. 1995).

In the case at hand, Appellant argues that his October 12 statements, both oral and written, were the product of an illegal warrantless arrest. We hold that when Appellant s objection to the trial court is considered in the context of a hearing on Appellant s motion to suppress, and in conjunction with Appellant s written motion, it is satisfactory in accordance with Rule 33.1(a).

Standard of Review

We review a trial court's ruling on a motion to suppress for abuse of discretion. See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App.1996); Curry v. State, 965 S.W.2d 32, 33 (Tex. App. Houston [1st Dist.] 1998, no pet.). A trial court does not abuse its discretion when its decision is at least within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.1990) (op. on reh g).

In reviewing the trial court s ruling, we apply a bifurcated standard of review. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Hernandez v. State, 957 S.W.2d 851, 852 (Tex. Crim. App. 1998). We give almost total deference to the trial court s determination of historical facts, while conducting a de novo review of the trial court s application of the law to those facts. See Carmouche, 10 S.W.3d at 327. The trial court is the exclusive finder of fact in a motion to suppress hearing, and as such, it may choose to believe or disbelieve any or all of any witness s testimony. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Furthermore, when, as in the instant case, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). If the trial judge s decision is correct on any theory of law applicable to the case, the decision will be sustained. Id. at 856.

Attenuation of Taint

Assuming arguendo that Appellant s arrest was not lawful, his statements would be admissible nonetheless if the evidence reflects that the taints of such illegality, if any, was sufficiently attenuated. Otherwise tainted evidence is admissible if the connection between the illegal arrest and the means through which the confession was secured has become so attenuated as to dissipate the taint. Wong Sun v. United States, 371 U.S. 471, 491, 83 S. Ct. 407, 419, 9 L. Ed. 2d 441 (1963); Armstrong v. State, 550 S.W.2d 25, 31 (Tex. Crim. App. 1976) (op. on reh g). Thus, we must determine whether, assuming establishment of the primary illegality, the evidence to which objection is made has been derived by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. See Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417-18.

A confession obtained through custodial interrogation after illegal arrest should be excluded unless the confession is sufficiently an act of free will to purge the primary taint. See Sweeten v. State, 667 S.W.2d 779, 781 (Tex. Crim. App. 1984). Texas applies the four-factor attenuation test found in Brown v. Illinois, which is (1) whether Miranda warnings were given, (2) the temporal proximity of the arrest and the confession, (3) the presence of intervening circumstances, and (4) the purpose and flagrancy of the official misconduct. See Dowthitt v. State, 931 S.W.2d 244, 261 (Tex. Crim. App. 1996); see also Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62, 45 L. Ed. 2d 416 (1975)). The State has the burden of proving attenuation. See Garrison v. State, 642 S.W.2d 168, 169 (Tex. Crim. App.1982).

In the case at hand, the record indicates that Appellant was arrested at 7:35 or 7:40 p.m. The record further reflects that Appellant was interviewed in Constable Larry Bennett s office for four hours following his arrest. Although the passage of time herein is not extensive, passage of time, alone, can never attenuate a confession. See Starkey v. State, 704 S.W.2d 805, 810 (Tex. App. Dallas 1985, pet. ref d).

The State may also demonstrate attenuation of taint by demonstrating that intervening circumstances existed, which purged the taint. Here, the evidence reveals that Appellant was interviewed at Constable Bennett s office for four hours. Flores testified that multiple breaks were taken. Appellant was permitted to go outside the office to smoke. Appellant was permitted to use the telephone. In one instance, a break was extensive enough to permit an officer to go to the grocery store to pick up a soda or bottled water for them to drink. Ultimately, Appellant made a written statement in which he admitted to placing his hands on Martinez s mouth and throat briefly to keep her quiet while the two were arguing, but denied killing her. Thereafter, Appellant requested, and was permitted, to call his mother. During the ensuing phone conversation, Flores overheard Appellant tell his mother that he caused Martinez s death by choking her.

Repeated Miranda warnings are another factor we must consider. Flores testified that he gave Appellant Miranda warnings at Constable Bennett s office by reading them to Appellant from the printed material at the top of the statement form that Appellant signed upon completion of his written statement. Flores testified that Appellant read the warnings out loud as well. Moreover, the Miranda admonition was inscribed at the top of each page of the voluntary statement forms signed by Appellant.

Finally, we find no evidence of purposeful or flagrant misconduct. Flores testified that Appellant s arrest was effected pursuant to a misdemeanor warrant. Appellant was informed that he was not under arrest for Martinez s murder. There is no evidence to suggest that the officers involved were discourteous or dilatory. The evidence suggests that Appellant was neither rushed nor coerced with respect to his statement from the time of his arrest forward.

The exclusionary rule is based on twin policies of deterrence and judicial integrity. Starkey, 805 S.W.2d at 811. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future but also use of the evidence is more likely to compromise the integrity of the courts. Id. (citing Dunaway v. New York, 442 U.S. 200, 219, 99 S. Ct. 2248, 2260, 60 L. Ed. 2d 824 (1979)). If, however, the causal chain is broken by an independent act of free will, the policies of the exclusion would not be furthered, and the confession should be admitted. Starkey, 704 S.W.2d at 811.

We conclude that Appellant's uncoerced choice to make a both a written statement and, subsequently, an oral confession during a telephone conversation with his mother could each reasonably be construed by the trial court as sufficiently an act of free will to purge the primary taint of the illegal arrest. Although Miranda warnings alone do not break the causal connection between

police misconduct and a subsequent statement, they are an important factor in determining whether evidence is obtained by exploitation of an illegal arrest. Dunaway, 442 U.S. at 216-17, 99 S. Ct. at 2258-59; Brown, 422 U.S. at 603, 95 S. Ct. at 2261; Foster v. State, 677 S.W.2d 507, 509 (Tex. Crim. App.1984); Ussery v. State, 651 S.W.2d 767, 771 (Tex. Crim. App. 1983); Starkey, 704 S.W.2d 811. The repeated Miranda warnings in the instant case indicate both voluntariness and an exercise of free will. See Starkey, 704 S.W.2d at 811. Moreover, the multiple recesses in the interrogation served to further increase the divide between the alleged illegal arrest and Appellant s written statement. These factors coupled with the evidence indicating a total lack of purposeful or flagrant misconduct, amount to a sufficient attenuation of taint in that they, together, indicate that Appellant s written statement was an independent act of free will. With regard to Appellant s oral confession, which Flores overheard, the fact that the statement was made during a phone conversation Appellant initiated to his mother creates an even greater breach in the chain of alleged illegal conduct and Appellant s oral statement. Thus, we hold that the trial court did not abuse its discretion in admitting the statements, both oral and written, made by Appellant on October 12, 2002. Appellant s second issue is overruled.

Disposition

Having overruled Appellant s issues one and two, we affirm the trial court s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered December 15, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(DO NOT PUBLISH)