Stanley Allison BAKER, Appellant, v. STATE of Texas, Appellee.
No. 72225.
Court of Criminal Appeals of Texas, En Banc.
May 21, 1997.
Rehearing Denied Sept. 10, 1997.
956 S.W.2d 19
Deena J. McConnell, Asst. Dist. Atty., Bryan, Matthew Paul, State‘s Atty., Austin, for State.
OPINION
KELLER, Judge.
Appellant was convicted in April 1995 of a capital murder occurring on September 28, 1994.
In his sixth point of error, Appellant complains that the evidence introduced at the punishment phase of the trial is insufficient to sustain a unanimous vote on the special issues concerning future dangerousness and mitigating evidence. He contends first that
Initially, we note that in examining the sufficiency of the evidence regarding future dangerousness, we look at the evidence in the light most favorable to the jury‘s verdict. Barnes v. State, 876 S.W.2d 316, 322 (Tex.Cr.App.1994). In answering the special issues, the jury may consider all of the evidence adduced at the guilt/ innocence phase of the trial, in addition to the evidence presented at the punishment phase. Id. The evidence, viewed in a light most favorable to the jury‘s finding, shows the following: Appellant intended to kill his former employer. After walking nearly two miles in pursuit of his plan, he became hot and decided to steal a truck. He went into the Adult Video Store in College Station, where Wayne Williams, the night clerk, was working alone. Appellant took from Williams the keys to his truck, the currency from the cash register, and the night‘s receipts. Appellant then shot Williams three times. Appellant fled the scene in William‘s vehicle, returned home and loaded the stolen vehicle with his gear. The items found in the vehicle included the murder weapon, ammunition, a brass knuckled stiletto, a bulletproof vest, a garrote, and a variety of survival gear. In a notebook seized by police, appellant had written his goals for the year, which included, “30+ victims dead. 30+ armed robberies. Steal a lot of cars.” Furthermore, on the day of his arrest appellant showed no remorse. We hold that the evidence presented in the instant case is sufficient to support the jury‘s finding regarding appellant‘s future dangerousness.
Second, we have previously stated that we will not review sufficiency of the evidence as regards the mitigation special issue. McFarland v. State, 928 S.W.2d 482 (Tex.Cr.App.1996). The weighing of mitigating evidence is a subjective determination undertaken by each individual juror, and we decline to review that evidence for sufficiency. Id., at 498. Finally, we have previously held that
In point of error one, appellant attacks the trial court‘s denial of his motion to suppress statements he made to the authorities. He contends that the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) because his unequivocal invocation of his right to remain silent was not scrupulously honored.
At about 6:10 a.m. on the day of the murder, Department of Public Safety Trooper Garry Parker heard a description of a truck involved in the robbery in College Station. About an hour later, he saw a truck matching the description. He followed the truck until it pulled into a driveway. When appellant got out of the truck, Officer Parker ordered him to lie down. Deputy Flores of the Bastrop County Sheriff‘s Department soon arrived. Officer Parker gave appellant Miranda warnings, and appellant made somewhat incriminating statements. DPS Investigator Ashley happened to come upon the arrest scene, and stopped and called for a Texas Ranger to come to the scene. Investigator Ashley took a recorded statement from appellant (statement #1) while they waited for the Texas Ranger. During that statement, when appellant was asked if he wanted to talk about “this thing” he said “no.” Investigator Ashley asked if appellant was sure he did not want to get it off his chest, and appellant again replied, “no.” Investigator Ashley continued to question appellant, and appellant answered all his questions.
When Ranger Coffman arrived, he was not told of the statement that Investigator Ashley had just taken. Ranger Coffman read appellant the Miranda warnings and took another statement (statement #2) from appellant. At about 8:45 a.m., Detectives Andreski and Prasifka of the College Station Police Department arrived on the scene. Detective Andreski gave appellant the Miranda warnings and took a statement (state-
Appellant filed a motion to suppress all four statements. The trial court granted Appellant‘s motion to suppress as to the first, second, and third statements but denied the motion as to the fourth. Appellant‘s fourth statement, however, was never introduced into evidence before the jury. We have held that where evidence obtained as a result of an interrogation has not been used, the appellate court need not entertain a complaint attacking admissibility of that evidence. e.g., Kraft v. State, 762 S.W.2d 612, 613 (Tex.Cr.App.1988) (when statement is not used by State either as evidence or otherwise to obtain a plea or conviction appellate court need not entertain a point of error attacking admissibility of that evidence); Stiggers v. State, 506 S.W.2d 609, 611 (Tex.Cr.App.1974) (no evidence obtained as a result of alleged illegal arrest was introduced into evidence, therefore, no reversible error); Ferguson v. State, 571 S.W.2d 908, 909 (Tex.Cr.App.1978) (overruled on other grounds) (“Where no evidence obtained as a result of a search is introduced in evidence, no error with respect to such search is presented for review“). Thus, even if the denial of his motion as to the fourth statement were error, it would appear that because the fourth statement was not introduced at trial, appellant would be unable to show harm in the trial court‘s refusal to grant the motion to suppress.
In point of error two, appellant contends that the trial court erred in refusing to exclude evidence obtained from a search of his apartment. The police conducted this search pursuant to a written consent to search form that appellant signed. Appellant contends that the consent to search and the resulting items found were obtained as a result of the Miranda violation alleged in his first point of error. He argues that the evidence obtained should be excluded as fruits of illegal activity in accordance with Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) and
The “fruit of the poisonous tree” doctrine espoused in Wong Sun does not apply to mere violations of the prophylactic requirements in Miranda: while the statement taken in violation of Miranda must be suppressed, other evidence subsequently obtained as a result of that statement (i.e. the “fruits” of the statement) need not be suppressed. Michigan v. Tucker, 417 U.S. 433, 452, 94 S.Ct. 2357, 2368, 41 L.Ed.2d 182 (1974); Oregon v. Elstad, 470 U.S. 298, 314, 105 S.Ct. 1285, 1296, 84 L.Ed.2d 222 (1985). The rule in Wong Sun requires suppressing the fruits of a defendant‘s statement only when the statement was obtained through actual coercion. Tucker, 417 U.S. at 448-449, 94 S.Ct. at 2365-67; Elstad, 470 U.S. at 314, 105 S.Ct. at 1296.
Both Tucker and Elstad involved the failure to give the required warnings rather than the failure to scrupulously honor warnings given. See Tucker, 417 U.S. at 435, 94 S.Ct. at 2359; Elstad, 470 U.S. at 300, 105 S.Ct. at 1288. Neither the Supreme Court nor this Court has addressed whether the Tucker/Elstad rule applies to the fruits of statements made in the latter context.2 But
The absence of a federal exclusionary rule, however, does not preclude the application of
No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In one case, we stated that Miranda fell within the ambit of
The United States Supreme Court has repeatedly emphasized that the Miranda warnings are not themselves rights protected by the federal Constitution but are merely prophylactic measures designed to safeguard the underlying right against compelled self-incrimination. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2630-31, 81 L.Ed.2d 550 (1984); Tucker, 417 U.S. at 444, 94 S.Ct. at 2363-64. The Miranda rule “sweeps more broadly than the Fifth Amendment itself,” and “may be triggered even in the absence of
The above discussion of Supreme Court precedent shows that the Miranda rule is simply a judicially imposed rule of evidence: questioning in violation of Miranda is not itself illegal; the answers to such questioning are simply inadmissible in court. This rule of evidence was formulated out of a concern that a bright-line rule might be necessary to adequately protect a defendant‘s constitutional right against compelled self-incrimination, but even in Miranda, the Court “disclaimed any intent to create a ‘constitutional straitjacket’ and invited Congress and the States to suggest ‘potential alternatives for protecting the privilege.‘” Elstad, 470 U.S. at 307 n. 1, 105 S.Ct. at 1292 n. 1 (citing and quoting Miranda, 384 U.S. at 467, 86 S.Ct. at 1624). Hence, the Miranda requirements embody an exclusionary rule or remedy rather than a substantive right or entitlement. Statements taken in violation of Miranda are not obtained in violation of the law; they are simply statements that are subject to a judicially imposed prophylactic rule of exclusion, whose purpose is to safeguard a constitutional right. Therefore, mere violations of the Miranda rule are not covered by the state exclusionary rule contained in
Appellant contends in his supplemental brief that his statement was obtained through actual coercion. If true, both Wong Sun and
Appellant maintains in his third point of error that his fourth statement and evidence derived therefrom, including the consent to search and the items seized, were inadmissible because the arresting officer failed to comply with
The Appellant was not taken directly to the magistrate in Brazos County, Texas but to the police station in violation of
Art. 15.17 Tex.Code Crim.Proc. The error was preserved throughout trial. This error was not harmless.
Appellant fails to cite in the record to where this error was preserved. Nevertheless, contrary to appellant‘s assertion, the arresting officer complied with
Appellant in his fourth point of error contends that the trial judge erred in not hearing appellant‘s motion for a new trial within the required 75 days. See
By failing to object to the untimely setting, Appellant has failed to preserve his complaint that the trial judge should have held a
In appellant‘s fifth point of error, he complains that “[t]he trial court erred after evaluating the evidence at the motion for new trial hearing and stating the trial court would deny the motion for new trial.” As noted in the previous point of error, the trial judge held a hearing on appellant‘s motion for new trial, even though more than 75 days had passed after sentence was imposed.
(1) The court shall determine a motion for new trial within 75 days after date sentence is imposed or suspended in open court.
* * * * * *
(3) A motion not timely determined by written order signed by the judge shall be considered overruled by operation of law upon expiration of the period of time prescribed in section (e)(1) of this rule.
Thus, Appellant‘s motion for new trial had been overruled by operation of law before the trial court held the hearing. Appellant cannot complain of the trial court‘s failure to grant a new trial because the trial court had no authority to do so. See State ex rel. Cobb v. Godfrey, 739 S.W.2d 47, 49 (Tex.Crim.App.1987). Appellant‘s fifth point of error is overruled.
Finding no reversible error, we affirm the judgment of the trial court.
BAIRD, J., concurs with note. For the reasons stated in Matamoros v. State, 901 S.W.2d 470, 479 (Tex.Cr.App.1995) (Baird, J., concurring), I join only the judgment of the Court. Additionally, because the opinion adds nothing to the jurisprudence of the State, I disagree with the decision to publish.
OVERSTREET, J., concurs in the result.
WOMACK, J., joins the judgment of the Court and, except as to Points 2 and 6, its opinion.