No. 01-09-00852-CR
Opinion issued July 21, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 56th District Court, Harris County, Texas, Trial Court Case No. 08CR2417.
Panel consists of Chief Justice RADACK and Justices SHARP and BROWN.
HARVEY BROWN, Justice.
A jury found Christopher Lee McKnight guilty of the offense of felony murder. The jury found the allegation in the State's enhancement paragraph true and assessed punishment at confinement for life. On appeal, McKnight contends that (1) the case should be abated for findings of fact and conclusions of law; (2) the trial court erred in denying his motion to suppress because his custodial statement was involuntary; and (3) the trial court diminished the State's burden of proof during voir dire. We affirm.
Background
In July 2008, Karim Ubaldo met McKnight and Kelly Gill at a motel room at the Red Carpet Inn in Houston for a drug deal. At some point a fight ensued and McKnight and Gill taped Ubaldo to a chair, beat him, and injected him with a lethal dose of heroin. Ubaldo died as a result of his injuries. Later that morning, Officer Bergen received notice that a resident in Galveston had reported seeing an intoxicated person at the end of her street. When Officer Bergen arrived on the scene around 5:45 a.m., he found McKnight rolling around on the ground next to a Jeep wearing only boxer shorts. McKnight's shoes were scattered on the ground and a pair of pants was hanging from one ankle. Officer Bergen recognized the Jeep as the one he had seen driving through the neighborhood earlier that same morning. McKnight was possibly intoxicated, unresponsive, and had to be helped to his feet. When questioned, McKnight told Officer Bergen his name, but was unable to tell him the date or where he was. Officer Bergen read McKnight his rights and arrested him for public intoxication and driving while intoxicated. Sergeant Shannon arrived around 5:50 a.m. after Officer Bergen called for assistance. While conducting an inventory of the Jeep, Sergeant Shannon leaned his head through the open front driver's side window and found the Jeep "smelled like a person had been dead for a long time." Sergeant Shannon removed a sheet on the back floorboard and found Ubaldo's body. McKnight's fingerprints were found in various places in and on the Jeep, including on the driver's side door handle, the steering wheel, and the driver's side window. Officers placed McKnight in a patrol car around 6:00 a.m. They then transported him to the police station around 7:45 a.m. McKnight was placed in a holding cell until he was removed for sobriety testing around 1:00 p.m. The officer who administered the tests determined that McKnight did not appear intoxicated, but did not include a breathalyzer or blood test. Sergeant Echols and Sergeant Putnam began interviewing McKnight at around 3:40 p.m., approximately nine hours after his arrest, and the interview lasted about four and a half hours. The officers again read McKnight his rights before beginning the interview, and McKnight signed a written waiver of those rights. McKnight was relatively quiet during the first hour and a half of the interview. He cooperated with the officers to the extent that he answered questions, though Sergeant Putnam characterized his responses as evasive. He occasionally rubbed his arms up and down, which Sergeant Echols believed was a reaction to drugs. At one point, Sergeant Echols acted frustrated with McKnight's responses and walked out of the interview room as part of an interrogation technique. After this, McKnight became more talkative. McKnight was still in his boxers at the start of the interview and for about 90 minutes before he was given clothing. Sergeant Echols later testified that he believed McKnight was wearing a swimsuit, which he stated was not uncommon for people arrested in the Galveston area. When McKnight asked for clothes, Sergeants Echols and Putnam sent for clothing from the jail because no clothes were immediately available at the interview location. The officers also provided McKnight with food and breaks during the interview to use the restroom and smoke. McKnight eventually informed Sergeant Echols that he had held Ubaldo at gunpoint, put tape over his mouth, and that it "could have been" him who hit Ubaldo and broke his nose. McKnight stated that he and his alleged accomplice purchased the duct tape. McKnight also admitted that he purchased the heroin that was injected into Ubaldo. McKnight also said that it "could have been" him who assisted in the planning and that he participated in the "jacking," or robbing, of Ubaldo. McKnight never asked for an attorney, though he asked for his mother and stated that he wanted to talk to "somebody" several times. Sergeant Echols or Sergeant Putnam never promised anything in exchange for cooperating. Finally, McKnight did not ask the officers to stop the interview at any point. At one point in the interview, Sergeant Echols asked, "Is this interview about to be over?" McKnight responded, "No." The State indicted McKnight for felony murder with the underlying felony of aggravated kidnapping. McKnight filed a motion to suppress his custodial statement on the grounds that it was involuntary. McKnight maintained that his statement was "not voluntary or was coerced or improperly induced or taken under duress," in violation of the Fifth Amendment. McKnight asserted Sergeant Putnam improperly induced his statement by stating that McKnight could help himself if he cooperated because it would "look good . . . with the DA and Judge." Additionally, McKnight asserted that his statement was involuntary because he was exhausted, deprived of clothes for an extended period, and made the statement while intoxicated and under the influence of drugs. The trial court held a hearing on the motion to suppress. At the hearing, Officer Bergen testified that when he encountered McKnight on the morning of his arrest, he appeared to be intoxicated. McKnight, however, passed a sobriety test administered about seven hours after his arrest, before the custodial interview began. McKnight appeared to have the normal use of his mental and physical faculties at that time. Sergeant Echols testified that when he interviewed McKnight nine hours after his arrest, he was "very responsive," was able to carry on a conversation, and appeared to have "his mental faculties about him." Both Sergeant Echols and Sergeant Putnam testified that they believed it was inappropriate to conduct the interview while McKnight was in his underwear and that they obtained clothing as soon as possible from the jail. McKnight testified that he did not tell the officers everything he knew because he "didn't want to get in trouble." McKnight never claimed that he was embarrassed or uncomfortable due to his lack of outer garments or the conditions of the interview. The trial court denied the motion to suppress and found that McKnight made his statement voluntarily and without coercion. The trial court concluded that, as a matter of law, McKnight did not make an unequivocal and unambiguous invocation of right to counsel by asking for "help," that he did not unequivocally and unambiguously invoke his right remain silent, and that Sergeant Putnam's comment concerning the judge and the DA did not constitute improper inducement. During voir dire, the trial judge described the State's burden to prove felony murder beyond a reasonable doubt as follows: In other words, the State of Texas has to prove . . . all of the elements of the case to you. And it never shifts. That burden never jumps over to the defendant. It is always the state's job to prove up the case. They have to prove each and every element beyond a reasonable doubt. There is no definition for beyond a reasonable doubt. You have to ask yourself what you think a reasonable doubt is. And the state must prove it past or beyond a reasonable doubt.
The judge went on to say that if the State proved its case beyond a reasonable doubt the jurors must convict, but if the State failed to satisfy its burden, then the jurors must find McKnight not guilty. McKnight's counsel did not object to the trial court's statements. At trial, a witness testified that she and Ubaldo went to the Red Carpet Inn in Houston to meet McKnight and Gill concerning a drug deal. McKnight was not there yet when they arrived. She testified that Ubaldo was nervous because he did not have his gun, so they left and he returned later to the same motel by himself. The witness also testified that in the eight years she had known Ubaldo, she had never known him to use heroin. Sergeant Echols testified to the circumstances surrounding McKnight's custodial statement. Sergeant Echols maintained that McKnight "definitely" knew what he was saying and that he was fairly confident in the truth of McKnight's statement. Officer Cazares and several forensics experts testified about the investigation. They stated that they found McKnight's fingerprints and DNA throughout the Jeep and drug paraphernalia in the motel room. They also testified that they found tape residue on a wooden chair in the motel room and similar tape residue on Ubaldo's body. The medical examiner testified that tape residue near Ubaldo's ear indicated the tape had been placed over his mouth in addition to around his arms. He also testified that Ubaldo had been struck in the face before his death and suffered blunt force trauma to the brain. The medical examiner found three injection marks on Ubaldo, but no track marks indicating prior heroin use. A blood analysis showed that the amount of heroin in his system was a lethal amount. The jury found McKnight guilty of felony murder. At the punishment phase, the jury found the allegation in the State's enhancement paragraph true and assessed punishment at confinement for life. McKnight timely filed this appeal. Findings of Fact and Conclusions of Law
In his first issue, McKnight contends that the case should be abated because the trial court erred by failing to make written findings of fact and conclusions of law regarding the voluntariness of his statement. If a question is raised about the voluntariness of a defendant's statement, the trial court must make an independent finding, outside the presence of a jury, of whether the defendant gave the statement voluntarily. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West 2005). "The court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific finding of facts upon which the conclusion was based . . ." Id. We abated the case and ordered the trial court to make findings of fact and conclusions of law concerning the voluntariness of McKnight's statement. The trial court complied, and McKnight's first issue is rendered moot. See Rocha v. State, 16 S.W.3d 1, 10 (Tex. Crim. App. 2000). We overrule McKnight's first issue. Motion to Suppress Custodial Statement
In his second issue, McKnight contends the trial court erred by denying the motion to suppress his custodial statement because the statement was involuntary. McKnight asserts his statement was involuntary because (1) he was deprived of sleep and clothes, (2) Sergeant Echols and Sergeant Putnam's tactics improperly induced him to confess, and (3) he was intoxicated or under the influence of drugs at the time of the statement. A. Voluntary Statement
A defendant's recorded custodial statement may be used as evidence against him if the defendant made it freely, voluntarily, and without impermissible compulsion or persuasion. See TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005). A custodial statement is involuntary "if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." State v. Terrazas, 4 S.W.3d 720, 723 (Tex. Crim. App. 1999) (quoting Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). In other words, the ultimate question is whether the defendant's will was "overborne." Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). We examine the totality of circumstances surrounding the confession to determine whether a confession is voluntary. Delao v. State, 235 S.W.3d 235, 239 (Tex. Crim. App. 2007); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). When a defendant moves to suppress a statement on the ground of involuntariness, due process requires the trial court to hold a hearing on the admissibility of the statement outside the presence of the jury. Alvarado, 912 S.W.2d at 211. At the hearing, the trial court is the fact finder and the sole judge of the credibility and weight of the evidence. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). Accordingly, the trial court is free to believe all or some of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). McKnight first asserts that law enforcement officers deprived him of sleep and clothes, making his statement involuntary. He maintains was not given a chance to sleep in the nine hours between his arrest and his questioning, the majority of which appears to have been spent in a holding cell, and that a short nap in a patrol car was insufficient. Generally, sleep deprivation must be deliberate and severe in order to rise to the level of coercion. See Contreras v. State, 312 S.W.3d 566, 575-76 (Tex. Crim. App. 2010) (holding no evidence police purposefully kept defendant awake and defendant had opportunity to sleep); Foster v. State, 101 S.W.3d 490, 497 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (noting that lack of sleep for as long as 16 hours does not alone render a confession involuntary). Cf. Oursbourn v. State, 259 S.W.3d 159, 170-71 (Tex. Crim. App. 2008) (listing circumstances that made statements involuntary including interrogation for 18 hours while defendant was on medication and deprived of food, further medication, or sleep). While there was no evidence of whether McKnight slept for an extended time between his arrest at 6:00 a.m. and his interrogation at 3:40 p.m., his alleged sleep deprivation was not as a result of the deliberate efforts by law enforcement or of such duration as to make his statement involuntary. See Oursbourn, 259 S.W.3d at 170-71; Foster, 101 S.W.3d at 497. Further, the interviewing officers provided McKnight with necessities like clothing, food, access to the restroom, and a cigarette break. While about 90 minutes passed before McKnight was provided with clothing, both interrogating officers testified that they did not have immediate access to clothing at the interview location. Sergeant Echols also testified that he believed McKnight was wearing a swimsuit, which was common for people arrested in the Galveston area. A delay in providing a defendant with clothing, beyond underwear, does not necessarily constitute coercive conduct. See Birmingham v. State, No. 02-07-00048-CR, 2008 WL 2553393, at *4 (Tex. App.-Fort Worth June 26, 2008, pet. ref'd) (holding confession voluntary when officers arrested defendant in his apartment, interviewed him for some time in his underwear, then provided clothes when defendant asked for them); Maxwell v. State, No. 01-00-00708-CR, 2002 WL 356530, at *4 (Tex. App.-Houston [1st Dist.] Mar. 7, 2002, pet. ref'd) (holding statements voluntary when officers offered clothing to defendant along with food, drink, and a restroom break while at crime scene). The trial court as the fact finder was entitled to consider the officers' explanation for the delay in giving McKnight clothing. See Alvarado, 912 S.W.2d at 211. Also, McKnight testified at the motion to suppress hearing that his reluctance to speak to the officers was because he "didn't want to get in trouble," rather than a result of his lack of clothing. Second, McKnight asserts that Sergeant Putnam's comment that telling the truth would "look good to the Judge and the DA" was extremely misleading and constituted coercion. A defendant's statement may be found involuntary due to improper inducement or coercion if it is improperly induced by a promise that was "(1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that it would cause a defendant to speak untruthfully." Henderson v. State, 962 S.W.2d 544, 564 (Tex. Crim. App. 1997). General statements concerning the benefits of telling the truth and how a confession may result in more lenient treatment will not invalidate a confession. See Johnson v. State, 68 S.W.3d 644, 654-55 (Tex. Crim. App. 2002) (holding officer's statement that defendant's honest cooperation would be communicated to prosecutors and trial court was too ambiguous and general to render confession involuntary); Walbey v. State, 926 S.W.2d 307, 312-13 (Tex. Crim. App. 1996) (holding officer's statements that in defendant's best interest to cooperate too general to invalidate confession); Kennon v. State, No. 01-07-00820-CR, 2008 WL 4530702, at *6 (Tex. App.-Houston [1st Dist.] Oct. 9, 2008, no pet.) (concluding that an officer's statements to defendant urging him to "tell the truth" and that he was trying to help defendant did not improperly induce confession). Both Sergeant Echols and Sergeant Putnam testified that they did not promise McKnight anything in exchange for his cooperation. In fact, McKnight testified at the suppression hearing that Sergeant Putnam's statement was not the reason he decided to continue talking and that the only promise made by the officers was "[t]hey just told me that if I told the truth, I would help myself out." These general comments that McKnight tell the truth are not sufficient to constitute police coercion. See Johnson, 68 S.W.3d at 654-55. McKnight also never expressly invoked his right to remain silent or requested that the interview stop, and the trial court concluded that McKnight "never unequivocally and unambiguously invoked his right to remain silent." Both the United States Supreme Court and the Court of Criminal Appeals have determined that a defendant must unambiguously invoke his right to remain silent. See Berghuis v. Thompkins, 130 S.Ct. 2250, 2259-60 (2010) (concluding that defendant did not invoke his right to remain silent because he did not say that he wished to remain silent or that he did not wish to speak with police); Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) (explaining that "an officer need not stop his questioning unless the suspect's invocation of rights is unambiguous, and the officer is not required to clarify ambiguous remarks."). Finally, McKnight asserts that he was intoxicated and incoherent at the time of his arrest and that he was incapable of giving a voluntary statement when questioned later that same day. While relevant, evidence of intoxication or the influence of drugs does not necessarily render a statement involuntary. Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996). "[T]he question becomes whether the defendant's intoxication rendered him incapable of making an independent, informed decision to confess." Id. McKnight was incoherent at the time of his arrest, but officers waited nine hours to interrogate him. Witnesses testified that McKnight was coherent and had sufficient use of his mental faculties by 1:00 p.m. Sergeants Echols and Putnam testified that McKnight did not appear to be intoxicated or under the influence of any drugs during their interrogation and that he answered questions and gave appropriate responses. McKnight insists that drugs or any other mind-altering substance would have a more lasting effect on his body and mental capacity than alcohol. Sergeant Echols testified that he believed McKnight scratching and rubbing his arms was a reaction to drugs, but he also observed that McKnight appeared to have his mental faculties about him. Despite some evidence of earlier intoxication, a trial court is free to find a statement voluntary based on evidence that the defendant is coherent and responsive during the course of the interview. See id. at 650 (holding that defendant's statement was not rendered involuntary when defendant testified he was drunk at time of his arrest, but interrogating officers testified that he did not appear intoxicated, had normal speech and mannerisms, and did not smell of alcohol at time of his interview); Paolilla v. State, No. 14-08-00963-CR, 2011 WL 2042761, at *7-8 (Tex. App.-Houston [14th Dist.] May 26, 2011, no pet. h.) (holding that defendant's statement was not involuntary due to drugs or withdrawal from heroin because even if she was under influence of heroin she did not appear intoxicated, she was oriented to her surroundings, her responses were "calculated," and she was "conscious and alert."). The record demonstrates that officers informed McKnight of his rights at his arrest and again nine hours later, before the start of his interrogation, and that he signed a written waiver of those rights. Law enforcement officers did not deprive him of basic necessities for an extended period of time or promise him anything beyond that the State generally favored someone who cooperated and told the truth. The trial court heard testimony that McKnight was coherent and responsive by the time he made his statements. Finally, McKnight made no attempt to terminate the interview, continued to talk to the officers, and made no attempt to ask for a lawyer or otherwise assert his rights. Based on the totality of the circumstances, we conclude that the trial court did not err in denying McKnight's motion to suppress and finding McKnight made his statement voluntarily. We overrule McKnight's second issue. Diminished Burden of Proof
In his final point of error, McKnight contends that the trial court improperly diminished the State's burden of proof by its description of the beyond a reasonable doubt standard during voir dire. McKnight specifically cites the trial judge's statement that, "There is no definition for beyond a reasonable doubt. You have to ask yourself what you think a reasonable doubt is." A. Preservation of Error
As a general rule, to preserve an error for appellate review, the complaining party is required to make a timely request, objection, or motion. See TEX. R. APP. P. 33.1(a)(1); Marshall v. State, 312 S.W.3d 741, 743 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). Therefore, a defendant must timely object to remarks by the State and the trial court during voir dire. See Marshall, 312 S.W.3d at 745; Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (holding that appellant failed to preserve the issue of improper argument by the prosecutor for appellate review because he did not object when the prosecutor first made the argument during voir dire). Without an objection the defendant waives the complaint on appeal unless the alleged error was fundamental and affected substantial rights. See TEX. R. APP. P. 33.1(a)(1); see also TEX. R. EVID. 103(d). B. Fundamental Error
McKnight failed to object to the trial court's comments on beyond a reasonable doubt during voir dire. We must, therefore, determine whether the trial court committed fundamental error such that no objection was required to preserve error. McKnight relies on the exception articulated in Blue v. State when the trial court apologized to prospective jurors during voir dire for the delay while the defendant considered a plea bargain and voiced a preference that the defendants plead guilty. 41 S.W.3d 129, 130 (Tex. Crim. App. 2000) (plurality op.). The Court of Criminal Appeals held that the comments "tainted appellant's presumption of innocence" and were "fundamental error of constitutional dimension and required no objection." Id. at 132-33. McKnight urges that the trial court's comments here regarding reasonable doubt similarly tainted McKnight's presumption of innocence. We disagree. The comments in Blue conveyed the trial court's opinion that Blue was guilty, but the statement by the trial court here did not convey any opinion as to McKnight's guilt or innocence. See id. at 130, 132; Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001). This court has considered similar comments made by prosecutors and judges during voir dire and found no harm to the presumption of innocence and no fundamental error. Marshall, 312 S.W.3d at 743-45 (holding that trial court's statement that "Basically I guess the Legislature figures everybody is reasonable and they would know a reasonable doubt when they see it" was not fundamental error). McKnight alternatively relies on Wansing v. Hargett, a Tenth Circuit habeas corpus case, to support his contention that the trial judge's statement was fundamental error. 341 F.3d 1207, 1214 (10th Cir. 2003). In Wansing, the trial court's comments regarding the meaning of reasonable doubt "implied that there [wa]s an extraordinarily broad range of possible meanings, including some which are plainly unconstitutional, and informed the jurors that they had to resolve the definitional issue for themselves, in the `individuality' of their own `conscience and reason.'" Id. Under Texas law, however, jurors must decide what proof beyond a reasonable doubt means to them. Murphy v. State, 112 S.W.3d 592, 597 (Tex. Crim. App. 2003); see Garret v. State, 851 S.W.2d 853, 859-60 (Tex. Crim. App. 1993) (explaining that "[A]n individual juror must determine what proof beyond a reasonable doubt means to him, for the law does not tell him."). The trial court's comments were therefore consistent with Texas law. We conclude the trial court's comments on the State's burden of proof are not fundamental error and a timely and specific objection was required to preserve the issue for appeal. Jasper, 61 S.W.3d at 421. Because he failed to object, we hold that McKnight has waived his complaint. We overrule McKnight's third issue. Conclusion
We affirm the judgment of the trial court. We deny all outstanding motions as moot.