Opinion
NUMBER 13-17-00390-CR
08-02-2018
BYRON EARL BUSH, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
By five issues, appellant Byron Earl Bush challenges his conviction for the attempted murder of Detective Marcus McLellan. We affirm.
This cause is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2017 1st C.S.). Because this is a transfer case, we apply the precedent of the Ninth Court of Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3.
I. BACKGROUND
In 2014, a grand jury indicted Bush on attempted capital murder of a peace officer, Detective McLellan, a felony of the first degree. The indictment included an enhancement paragraph alleging that Bush was previously convicted of a felony. Bush pleaded not guilty.
See TEX. PENAL CODE ANN. § 15.01(a), (d) (West, Westlaw through 2017 1st C.S.) (criminal attempt); id. § 19.02(b)(1) (West, Westlaw through 2017 1st C.S.) (murder); id. § 19.03(a)(1), (b) (West, Westlaw through 2017 1st C.S.) (capital murder).
See TEX. PENAL CODE ANN. § 12.42(b) (West, Westlaw through 2017 1st C.S.).
A jury found Bush guilty of the lesser-included offense of attempted murder. Bush requested punishment by the trial court. Based on his prior conviction, the trial court enhanced Bush's punishment and sentenced him to forty years' confinement. Bush appeals.
II. SUFFICIENCY OF THE EVIDENCE
By his first and second issues, Bush argues that the evidence is insufficient to show that he intended to cause McLellan's death. When reviewing the sufficiency of the evidence, we view the evidence "in the light most favorable to the verdict and determine whether, based on the evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt." Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). We must presume that the jury resolved any conflicting inferences in favor of the verdict. Id.
Viewed in the appropriate light, the record evidence establishes the following sequence of events. On May 22, 2014, Alexis Coleman noticed a brown Cadillac pursuing her car closely. She took a u-turn, and the Cadillac followed. The Cadillac pulled up close to her driver's side window. She rolled down her window and saw that it was Bush. When Bush saw her, he said, "My bad," and drove away. Coleman got the sense that Bush had been looking for someone else. Coleman was shaken up, so she called her husband Thomas Stagg.
Stagg was already acquainted with Bush, who was friends with Stagg's brother. Bush and Stagg would soon be indicted for their alleged roles in a robbery. Stagg's brother had warned him that lately, Bush was saying all sorts of "crazy" things, and he warned Stagg to watch out.
Stagg decided to confront Bush at a park he frequented. When Stagg pulled up with his stepbrother, he saw Bush sitting alone on a bench. As Stagg approached, he saw that Bush had a gun on his lap. Stagg sat down and drew a gun of his own. Bush said, "You know I got to kill your brother." The men had a heated exchange. Bush then snatched the gun from Stagg's lap and placed his own gun in Stagg's lap. Stagg believed that Bush's gun may have been used in the robbery, so he grasped Bush's firearm with his fingertips, trying to avoid putting fingerprints on it, and put it in his pocket.
Bush pulled Stagg into an embrace. He said "[I'm] sorry for what [I] have to do." Stagg heard a clicking sound from where Bush was holding the gun, and he pushed Bush away. Stagg's stepbrother shouted from the car. As Stagg backed toward the car, Bush told him to come to another local park later that day. Stagg knew the park to be secluded and vacant, and he believed that Bush would shoot him if he went to the park. Instead, he drove home and met Coleman.
Late that afternoon, Stagg called an officer he knew, Sergeant Kolander. Stagg told him what occurred at the park and that he was in possession of Bush's gun. Kolander came to Stagg's second-floor apartment that evening with Detective McLellan. They planned to go downtown so that Stagg could give a statement and Bush's black Smith & Wesson could be taken into evidence.
However, as they talked, Stagg received a phone call from a friend in the same apartment complex. The friend had just seen Bush wandering around the complex with a gun in his hand, knocking on doors, looking for Stagg.
From outside, Stagg and the officers heard knocking on a nearby door. The officers drew their weapons and hurried out into the foyer.
The jury heard multiple accounts of what happened next. Stagg testified that he saw the officers move down the stairwell to the apartment's front door, but he could only hear what happened after Kolander flung the door open:
They went down the stairs like in a line, like what you see on the movies. Kolander was in the front. Kolander got to the door; and the younger one, the skinny one, that's what I call him, he was behind Kolander. And Kolander grabbed the door and they start talking, I guess doing a countdown, whatever they do, and Kolander swung the door open. I couldn't see Bush or nothing like that. I guess he was on the left side of the door, where you can't see. Then they ran out. You can hear them say, "Stop, freeze, get down." And the door closed, and it got quiet after that. I just start hearing gunshots after that.Stagg testified that seconds after the door closed, he heard four or five gunshots ring out. Coleman testified similarly.
Kolander testified that when he opened the door, he saw Bush standing three or four feet away in the apartment's floodlighting. He and McLellan testified that they shouted "Police. Let me see your hands. Get on the ground."
Bush edged backwards, and as he grabbed at his waist band, Kolander and McLellan took aim at him. When Bush saw Kolander's laser sight trained on him, he said "aw, nah" and then broke into a run. Kolander testified that he and McLellan gave chase, yelling, "Stop, get on the ground, police."
Bush ran through the complex until he neared a wrought iron fence. The officers saw Bush turn in stride and then the glare of a gun blast in the darkness, pointed in their direction. McLellan could tell that the shots were pointed toward him because he saw the muzzle flash spread and, within it, "a vortex of darkness when a bullet comes out of the barrel," which appeared to be pointed in his direction. Kolander and McLellan testified that Bush missed them three or four times, and the officers returned fire, striking him twice.
Bush disputed the officers' accounts of gunfire. He testified that he intentionally fired a single warning shot in the air to scare his pursuers, and that any of the other shots he fired were unintentional. A resident of the apartment complex, Cecil McBride III, testified that he witnessed a portion of the chase, but never heard or saw Bush fire any shots.
When the officers shot Bush, he collapsed to the ground and lost consciousness. Kolander stood over him and saw blood on the grass and a pistol, which he slid away from Bush as he radioed in the shooting. As Kolander handcuffed Bush, he began to regain consciousness. Bush said, "You motherfuckers should have killed me." Two of the bullets fired by Bush were eventually found: one was found embedded in a wall next to where the officers had pursued Bush, and the other had shattered a window in the first-floor apartment behind the officers.
McLellan instead heard, "Y'all should've just fucking killed me."
Kolander reported that "everybody that had flashing lights on their cars that night showed up" at the scene, including the Jefferson County Sheriff's Department, the Beaumont Police Department, the Beaumont Fire Department, and Beaumont EMS.
By his first issue, Bush contends that the evidence is insufficient to show that he intended to attempt to kill Detective McLellan. By his second issue, Bush asserts that the trial court erred in denying his motion for instructed verdict on the element of intent, which is likewise an attack on the sufficiency of the evidence. See Stevenson v. State, 499 S.W.3d 842, 848 n.33 (Tex. Crim. App. 2016).
A specific intent to kill is a necessary element of attempted murder. Flanagan v. State, 675 S.W.2d 734, 741 (Tex. Crim. App. [Panel Op.] 1982) (op. on reh'g); Palomo v. State, 925 S.W.2d 329, 332 (Tex. App.—Corpus Christi 1996, no pet.). The specific intent to kill may be inferred from the use of a deadly weapon, unless in the manner of its use it is reasonably apparent that death or serious bodily injury could not result. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Medina v. State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (en banc). "If a deadly weapon is used in [a] deadly manner, the inference is almost conclusive that he intended to kill." Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc). "Naturally, the most obvious cases, and the easiest ones in which to prove a specific intent to kill, are those cases in which a firearm was used and was fired or attempted to have been fired at a person." Id.; see King v. State, 312 S.W.2d 677, 677-78 (Tex. Crim. App. 1958) (finding sufficient evidence of intent where, while fleeing, appellant fired at and missed an officer); see also Jaramillo v. State, No. 13-08-00468-CR, 2010 WL 2638488, at *4-5 (Tex. App.—Corpus Christi June 29, 2010, no pet.) (mem. op., not designated for publication) (same); Trevino v. State, No. 14-07-00479-CR, 2008 WL 4355255, at *7 (Tex. App.—Houston [14th Dist.] Aug. 26, 2008, no pet.) (mem. op., not designated for publication) (finding sufficient evidence of intent where there was evidence appellant fired at and missed two officers and hit a third, and the jury disbelieved the appellant's explanation that he actually fired up at the ceiling); Martin v. State, No. 11-97-00315-CR, 1999 WL 33743935, at *2 (Tex. App.—Eastland June 10, 1999, no pet.) (op., not designated for publication) (similar).
Bush emphasizes his own testimony that he fired a single warning shot in the air. However, the jury's finding indicates that it instead believed (1) Kolander and McLellan's testimony that Bush turned and fired at them multiple times and (2) evidence that Bush's shots landed behind and next to the officers. The jury resolved the conflicting evidence in favor of the State, and we defer to that resolution on appeal. See Queeman, 520 S.W.3d at 622. Based on Bush's use of a deadly weapon in a deadly fashion, a rational juror could have found the element of intent to kill McLellan beyond a reasonable doubt. See id.; Cavazos, 382 S.W.3d at 384.
We overrule Bush's first and second issues.
III. JURY QUESTION ON LESSER-INCLUDED OFFENSE OF MURDER
By his third issue, Bush contends that the trial court erred in submitting a jury question on attempted murder. At trial, the State requested a charge on the lesser-included offense, but Bush objected.
Bush concedes that attempted murder is a lesser-included offense of attempted capital murder. However, Bush insists there is no evidence that he was guilty only of attempted murder. Bush argues that if he was guilty at all, he must have been guilty of the greater offense of attempted capital murder.
To obtain a charge on a lesser-included offense, a defendant must satisfy a two-prong test: (1) the lesser included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993) (en banc).
However, unlike a defendant, the State is not bound by the second prong of the Rousseau test. In re State ex rel. Weeks, 391 S.W.3d 117, 123 (Tex. Crim. App. 2013) (orig. proceeding); Grey v. State, 298 S.W.3d 644, 645 (Tex. Crim. App. 2009). When a lesser-included offense charge is requested by the State, the State is not required to adduce some evidence that the defendant, if guilty, is guilty only of the lesser offense. Grey, 298 S.W.3d at 645. Because the State is not required to adduce such evidence, Bush cannot prevail by arguing that there is no such evidence. See id. The trial court did not err by charging the jury on attempted murder of Detective McLellan at the State's request. See id.
Bush's third issue is overruled.
IV. VIOLATION OF MIRANDA RIGHTS AND ARTICLE 38.22
By his fourth and fifth issues, Bush asserts that the trial court erred in admitting statements that he made while in police custody.
According to Bush, he awoke in the hospital three days after the shooting. That day, he was approached by Captain Jeffrey Chadney. Captain Chadney asked him to sign a release to provide the police with a copy of his medical records for use in an ongoing investigation. Bush agreed. Bush testified that, after having been shot and handcuffed at the scene, he believed that he was under arrest. However, he testified that Chadney told him otherwise:
A. At that time [Chadney] said—he pulled out a—he had an attaché case with him. He pulled out a tape recorder. He said his name, the date, and that he was there interviewing me in this situation. And then he proceeded to ask me questions.
Q. Okay.
A. When he started asking questions, the first thing I told Detective Chadney was, "I'd like to have a lawyer present." He told me that was not necessary because I was not under arrest.
Q. Okay.
A. And that if I didn't want to answer the questions, I didn't have to.
Chadney described his encounter with Bush differently. Chadney denied that he had a tape recorder or that he had any discussion with Bush beyond what was necessary to obtain his medical release. According to Chadney, his sole intention in visiting Bush at the hospital was to ask him for a voluntary release of medical records.
Chadney conceded that his police report described the purpose of his visit as an "interview" with Bush, but he asserted that this only referred to asking Bush for permission to obtain his medical records.
Chadney testified that while Bush was filling out the medical release, he suddenly volunteered inculpatory information, which Chadney wrote down as follows:
I thought I was getting jacked. You know how the north end is. I saw these two white guys, one big white guy, coming out of the apartment yelling "Police" with no police car in the parking lot and they only had a little badge on they shirt [sic] saying "Investigator." I ran away, grabbed my gun, and
started blazing. That's when I got hit. Man, I weren't for sure they were cops.According to Chadney, he had not been asking Bush any questions concerning the incident when Bush volunteered his statement; instead, he said Bush was "freely speaking to me."
In the trial court, Bush argued that his inculpatory remarks should be excluded as the product of an unwarned custodial interrogation. The trial court overruled Bush's objection to this testimony, reasoning that though Bush was in custody, he was not subject to any interrogation in the hospital.
As we explain below, we agree that Bush was not subject to interrogation, which renders it unnecessary to determine whether he was in custody.
A. Standard of Review
Where a defendant moves to suppress statements on the ground that they were the product of a custodial interrogation, we afford almost total deference to the trial court's rulings on questions of historical fact and on application of law to fact questions that turn upon credibility and demeanor. Pecina v. State, 361 S.W.3d 68, 78-79 (Tex. Crim. App. 2012). Findings that support the trial court's ruling will be implied. Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We review de novo the trial court's rulings on application of law to fact questions that do not turn upon credibility and demeanor. Pecina, 361 S.W.3d at 79.
B. Applicable Law
Under article 38.22, an accused's oral statement made "as a result of custodial interrogation" may not be used against him unless it is electronically recorded by a device capable of accurate recording, the accused receives and waives his legal warnings on the recording, all voices on the recording are identified, and the defendant receives a copy of the recording not later than the twentieth day before trial. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West, Westlaw through 2017 1st C.S.); Vasquez v. State, 483 S.W.3d 550, 552 n.2 (Tex. Crim. App. 2016). "Interrogation" means any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an "incriminating response" from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980); Moran, 213 S.W.3d at 922-23. The term "incriminating response" refers to any response—whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial. Innis, 446 U.S. at 301 n.5.
The Innis test focuses primarily upon the perceptions of the suspect, rather than the intent of the police in determining whether the suspect was coerced to provide incriminating information while in custody. Alford v. State, 358 S.W.3d 647, 653 (Tex. Crim. App. 2012).
However, nothing in article 38.22 precludes the admission of "a statement that does not stem from custodial interrogation . . . ." TEX. CODE CRIM. PROC. ANN. art. 38.22, § 5; see Gaitan v. State, 533 S.W.3d 19, 27 (Tex. App.—Corpus Christi 2016, pet. ref'd). Volunteered statements "of any kind are not barred by the Fifth Amendment," Miranda v. Arizona, 384 U.S. 436, 478 (1966), or by the comparable guarantees enshrined in the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.22, §§ 2 & 5.
C. Application
In ruling on Bush's objection, the trial court explained its view that Bush's statement was not the product of custodial interrogation because Chadney never interrogated Bush. The trial court impliedly found that Chadney did not ask any questions concerning the incident and instead spoke with Bush only to obtain a medical release, as Chadney had testified. See Moran, 213 S.W.3d at 922.
This raises the question of whether an officer's request for a release of medical records qualifies as interrogation. Based on analogous cases dealing with an officer's request for consent to search, we conclude that it is not.
"Consent to search is not an incriminating statement; it is not in itself evidence of a testimonial or communicative nature." Jones v. State, 7 S.W.3d 172, 175 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd) (quoting Smith v. Wainwright, 581 F.2d 1149, 1152 (5th Cir. 1978)) (editorial marks omitted). Therefore, a request for consent to search is not an interrogation within the meaning of Miranda because the giving of consent is not itself an incriminating statement. Id. (quoting United States v. McClellan, 165 F.3d 535, 544 (7th Cir. 1999)); see United States v. Stevens, 487 F.3d 232, 242 (5th Cir. 2007) ("The failure of officials to give Miranda warnings before asking for consent does not prohibit the use of a defendant's in-custody statements granting consent to a search."); see also Savedra v. State, No. 13-15-00089-CR, 2015 WL 6375876, at *5 (Tex. App.—Corpus Christi Oct. 22, 2015, no pet.) (mem. op., not designated for publication) (similar).
Or, as the transfer court for this case has put it, "voluntary oral consent to search [is] admissible, even when consent is given while the person is under arrest." Price v. State, 782 S.W.2d 266, 271 (Tex. App.—Beaumont 1989, pet. ref'd).
Like a request for consent to search, we do not believe that an officer's request for a release of medical records is interrogation within the meaning of Miranda and article 38.22. See Jones, 7 S.W.3d at 175. Rather, Chadney had little reason to know that his request for a medical release was reasonably likely to elicit an incriminating testimonial response from the Bush. See Innis, 446 U.S. at 301. Chadney's discussion with Bush, therefore, does not qualify as interrogation, and the fact that Bush volunteered information in response to Chadney's benign request does not offend the Fifth Amendment or the code of criminal procedure. See Miranda, 384 U.S. at 478; Gaitan, 533 S.W.3d at 27.
We overrule Bush's fourth and fifth issues.
V. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 2nd day of August, 2018.