Penny Gail Fox v. The State of Texas--Appeal from 173rd District Court of Henderson County

NO. 12-05-00383-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PENNY GAIL FOX, APPEAL FROM THE 173RD

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Penny Gail Fox appeals her murder conviction for which she was sentenced to fifty years of imprisonment. In one issue on appeal, Appellant challenges the trial court s overruling of her motion to suppress her recorded statement. We affirm.

Background

Appellant lived in Payne Springs, Texas, with her husband, James Fox (Fox), her two children, and her mother-in-law, Carolyn Sue Fox. On the evening of November 20, 2004, Fox called 9-1-1, and reported that he and Appellant had arrived home to find the front door cracked and his mother lying dead on the floor. She had been beaten to death. A search of the house revealed a general ransacking of the home, but nothing was missing. An investigation ensued. Nine days later, Fox confessed to beating his mother with a baseball bat, then staging the house to make it appear as though someone had broken in and killed her. In his confession, Fox implicated Appellant.

After hearing a portion of her husband s confession implicating her in the murder, Appellant made a recorded confession. She was subsequently arrested for murder and placed in the Henderson County jail. Prior to her trial, Appellant made a motion to suppress her taped confession. The trial court held a hearing on July 25, 2005 to consider her motion.

At the hearing, Ray Nutt, an investigator for the Henderson County Sheriff s Department, testified that he met with Appellant and her husband on November 20 following the reported murder of Carolyn Fox. On November 21 and 22, he took statements from Appellant. He then asked if Appellant and Fox were willing to take polygraph examinations to eliminate them from suspicion. They agreed to the examinations, and Nutt scheduled them for November 29.

At 9:00 on the morning of November 29, Appellant submitted to a polygraph examination. The polygraph examiner told Nutt that Appellant s polygraph showed some deception. Nutt gave Appellant her Miranda1 warnings and told her that she had the right to terminate the interview at any time. He asked her if she understood her rights and she said that she did. Fox then took his polygraph examination while Appellant sat in Nutt s office. During this time, Appellant made no incriminating statements.

After Fox finished his exam, the polygraph examiner called Nutt and told him that Fox had also shown deception. At that point, Nutt left Appellant in his office with Lieutenant Kay Langford while he went to speak with Fox. Within minutes, Fox gave a recorded statement, confessing to beating his mother, but also implicating Appellant in the murder.

Nutt returned to his office and told Appellant that Fox had implicated her in the murder. Appellant did not believe him, so he played one sentence from Fox s confession where Fox could be heard blaming Appellant for the murder. Appellant then went to talking. Nutt stopped her and tried to get her to quieten and calm[] down. She complied with Nutt s request to stop talking and wait. Nutt then set up a tape recorder and recorded her Miranda warnings and her ensuing statement. In relevant part, the transcript from Appellant s statement was as follows:

INV. NUTT: Now I m gonna read you your rights. You have the right to remain silent and not make any statement at all, and any statement you make may be used against you at your trial. You understand that?

APPELLANT: Yes.

INV. NUTT: And I have read you your rights once before today, haven t I?

APPELLANT: Yes.

INV. NUTT: Any statement you make may be used as evidence against you in court. You understand that?

APPELLANT: Yes.

INV. NUTT: You have the right to have a lawyer present to advise you prior to and during any questions. You understand that?

APPELLANT: Yes.

INV. NUTT: If you re unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questions. You understand that?

APPELLANT: Yes.

INV. NUTT: You understand that you can terminate the interview at any time.

APPELLANT: Yes.

INV. NUTT: Now after hearing those, do you knowingly and intelligently and voluntarily waive your rights to remain silent and your rights to an attorney and want to talk to us?

APPELLANT: I don t know.

INV. NUTT: I want to hear what you got to say if that s what you want to do.

APPELLANT: Yes, Sir. What can it matter?

LT. LANGFORD: We need to hear your side.

APPELLANT: He . . he taped up the bat. .

INV. NUTT: Okay, listen to me. Do you waive your rights?

APPELLANT: I don t know. I m scared.

INV. NUTT: I understand you being scared.

LT. LANGFORD: Do you understand what [Investigator Nutt] read to you about

your rights?

APPELLANT: Yes, I understand.

LT. LANGFORD: Okay, do you want to talk to us?

APPELLANT: Yes.

LT. LANGFORD: What?

APPELLANT: Yes.

Appellant said that they had discussed killing Carolyn Fox before that day because she was mean. On November 20, Appellant sent her children to her mother s house to spend the night. Appellant said that Fox wrapped a baseball bat with plastic bags. Late that afternoon, as Carolyn was looking at a magazine with Fox at the kitchen counter, Appellant approached her from behind and hit her in the head with the bat. At a point while Carolyn Fox was still alive, Appellant said that emotionally, she could no longer continue hitting her so she left the room. Fox picked up the bat and continued to beat his mother until she was dead. After Carolyn Fox was dead, Fox and Appellant dumped the bat in woods near their home, went to Wal-Mart and purchased Motrin, went bowling, then drove back to Wal-Mart and bought milk, cat food, and Dr. Pepper before returning to their home to report the crime.

At the conclusion of the hearing on the motion to suppress, the court found that Appellant

was not under any physical or mental impairment, nor was she under any kind of undue physical stress, such as fatigue or hunger or lack of sleep under these circumstances. The court finds that [Appellant] indicated that she understood the rights that had been read to her, and that she indicated herself that she wished to thereafter to give this statement. And so the court finds that the statement was knowingly and freely and voluntarily and intelligently made, and complies in every respect with Article 38.22 of the Code of Criminal Procedure. And so the motion to suppress is overruled.

Appellant pleaded guilty at trial. A jury heard evidence and argument at punishment and assessed fifty years of imprisonment. Appellant filed a motion for new trial, which was overruled, and this appeal followed.

Suppression of Recorded Confession

In her sole issue, Appellant contends that the trial court erred in overruling her motion to suppress her recorded confession because she did not knowingly, intelligently, and voluntarily waive her right to remain silent and her right to counsel.

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). 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) (citing Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997)). 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). If the trial court s fact findings are supported by the record, the appellate court is not at liberty to disturb the findings absent an abuse of discretion. Cantu v. State, 817 S.W.2d 74, 77 (Tex. Crim. App. 1991). The appellate court will address only the question of whether the trial court properly applied the law to the facts. Romero, 800 S.W.2d at 543. Whether a confession is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000). Appellate courts should afford the same amount of deference to trial court rulings on mixed questions of law and fact when the resolution of those ultimate issues turns on an evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. However, an appellate court may review de novo mixed questions of law and fact that do not fit within that category. Id.

Applicable Law and Discussion

Appellant argues that her statement was admitted into evidence in violation of Texas Code of Criminal Procedure article 38.22, section 3, which states that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless, prior to the statement but during the recording, the accused is given the warnings required by law2 and the accused knowingly, intelligently, and voluntarily waives such rights. See Tex. Code Crim. Proc. Ann. art. 38.22, 3(a)(2) (Vernon 2005). In support of her argument, Appellant points to the portion of her recorded confession where Nutt asked her if she waived her rights. Appellant initially responded, I don t know. I m scared.

An inquiry into the waiver of Miranda rights has two distinct dimensions. First, the waiver must be voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001) (citing Colorado v. Spring, 479 U.S. 564, 573, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954 (1987)). Second, the waiver must be made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Id. In determining voluntariness, we look to the totality of the circumstances surrounding a statement s acquisition. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995).

Appellant does not contend nor do we find any evidence that she was coerced or intimidated into giving the statement at issue. Instead, she argues that due to her emotional state, she was not completely aware of the consequences of waiving her Miranda rights. Consequently, we focus our discussion on the second dimension of the inquiry.

The record reflects that Appellant was crying and scared when Nutt asked her if she wanted to waive her Miranda rights and speak to him concerning the crime. In her appellate brief, Appellant seems to contend that she was mentally impaired due to her emotional state. It has been held that the defective mental state of a defendant may be significant enough to render a confession inadmissible. Page v. State, 614 S.W.2d 819, 819-20 (Tex. Crim. App. 1981); Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970). Likewise, the emotional confusion and debilitation of a suspect may well call into question the voluntariness of the confession. See Mincey v. Arizona, 437 U.S. 385, 396-402, 98 S. Ct. 2408, 2415-18, 57 L. Ed. 2d 290 (1978). Essentially, the question is whether the accused s mental impairment is so severe that she was incapable of understanding the meaning and effect of her statement. See Casias, 452 S.W.2d at 488.

After a careful review of the record, we conclude that Appellant was upset and frightened after hearing Fox implicate her and then facing her part in the murder. This alone, however, does not compel a finding that the statement was involuntary. Mere emotionalism and confusion do not dictate a finding of mental incompetency, which would render a confession involuntary. Licon v. State, 99 S.W.3d 918, 925 (Tex. App. El Paso 2003, no pet.). In all, no evidence was presented showing that Appellant, in her emotionally distraught state, was incapable of understanding her Miranda warnings or understanding the effect of their waiver.

Additionally, Appellant suggests that her actions and words invoked her right to remain silent and her right to counsel. However, the recorded interview reflects that after Appellant s rights were explained to her pursuant to article 38.22, section 2, she stated that she understood her rights and that, ultimately, she wanted to speak to the investigators regarding the matter. Although she was admittedly scared, Appellant expressly relinquished her rights by twice responding yes to the lieutenant s question, Do you want to talk to us? Therefore, considering the totality of the circumstances, we conclude that Appellant made a knowing, intelligent, and voluntary waiver of her rights in accordance with article 38.22. As such, we hold that the trial court did not abuse its discretion in overruling Appellant s motion to suppress. We overrule Appellant s issue.

Disposition

Having overruled Appellant s sole issue, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered August 16, 2006.

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

(DO NOT PUBLISH)

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 See Tex. Code Crim. Proc. Ann. art. 38.22, 2(a) (Vernon 2005).