*1 MOON, Appellant, Frederick Vernon Texas, Appellee.
The STATE
No. 56997. Texas, Appeals
Court of Criminal
Panel No. 3. 19, 1980.
Nov. *2 ground error,
In his second appel lant contends that the court trial erred in failing charge the the on voluntari confession, ness of pursuant to Article White, appeal Thomas D. only, on Hous- 7, spe Sec. Vernon’s Ann.C.C.P. He ton, appellant. cifically complained that court did not Vance, Atty., Carol Dist. Alvin M. S. Ti- submit issue of whether was Henderson, tus & Keno M. Asst. Dist. At- threatened. No error is The shown. trial Houston, tys., Huttash, Robert State’s essence, jury, court charged in Austin, Atty., for the State. only “if could consider the confession appears freely the same was DALLY, Before W. C. DAVIS and CLIN- compulsion persuasion.” without or This TON, JJ. charge adequate protect appellant’s State, rights. supra. Aranda v. See This OPINION ground of is overruled. error DAVIS, Judge. W. C. error, ground In his third an appeal This is from a conviction for contends the trial court erred in re- rape. After trial by fusing to submit to the an affirmative punishment (10) assessed years at ten con- appellant’s instruction on theory defensive finement. of consent sexual intercourse. We do of the sufficiency evidence is not agree. error, challenged. ground In his first State, In Green v. appellant contends trial that the court erred (Tex.Cr.App.1978),we reiterated that when in admitting into his signed, evidence writ any theory offense, defensive is raised the evi ten confession to he was dence, judge charge the jury the trial must sign induced confession threats. theory. on that Appellant defensive “the testified both out of and in the requested denial of instruc a defendant’s jury’s presence that he was threatened requested tion is error where in gave the officer to whom he the statement. He struction testimony regarding merely contends that his an affirmative submis merely threats made to him him sion of a defensive issue which de sign to induce the confession was nies the element of uncontroverted. We do existence an essential not agree. Quast Green, Police A. supra officer M. case.” at testi State’s 584. fied he took the written statement Lack of consent to the sexual intercourse in Quast from appellant. Officer testified rape case an essential element Code, several times that he did threaten ap State’s case. See V.T.C.A.Penal pellant any way, he case, nor did observe any the trial 21.02. In the instant court hearing one so. on else do At a the volun- charged the offense properly on confession, tariness of trial court is rape proof. and on the State’s burden credibility the sole of the wit refusing did not err The trial court State, Myre v. (Tex. nesses. 545 S.W.2d820 charge. requested appellant’s submit See State, McKittrick v. Cr.App.1977); ground of supra. Aranda v. (Tex.Cr.App.1976). Aranda v. error is overruled. 221 (Tex.Cr.App.1974). evidence; ground fourth court conflicting heard court erred lant contends that the trial testimony court believed the of Officer refusing requested charge appellant. and disbelieved that court’s while in cus finding Since the that the his oral confession was voluntarily given supported is well unless it by tody, could not be considered error is over found to led have officers to ruled. conduced to establish See Arizona, 384 U.S. S.Ct. 3(c), Miranda v. Vernon’s Ann.C.C.P. first (1966) are met. L.Ed.2d He that under Article contends Warren v. supra, charge. was entitled to such he App.1974); Moore The record reflects that after he Smith (Tex.Cr.App.1974); apprehended, appellant made an oral *3 to statement to which led the Officer of
recovery personal property items of be- 38.22, supra, then sets out Article Sec. longing complainant, the which of hold responsibilities the the The jury and his had discarded. brother findings fact and conclu- hearing, of make e., charged i. that on law, etc., where a of all cases sions “[i]n had they unless found that been voluntariness of as to the question is raised and rights knowingly, warned of his intelli- an accused ...” a statement of voluntarily rights such gently and waived Then, 38.22, 7, next states: Article Sec. then prior making they the by is the “When issue raised the for any purpose. Ap- could not consider in- appropriately judge the shall the jury should have pellant complains on the law generally, struct the charged additionally been must (Empha- such statement.” pertaining to also find led to evidence that the statement added) sis which conduced to We establish on gist appeal of contention do agree. not 38.22, 7, supra, requires is that Sec. Article 38.22, 3(a), Article Vernon’s Sec. Ann.C. the jury the the trial court provides under limited C.P. circum- “contain assertions facts statement must stances, accused, an the oral statement of to be or that are found true circumstances interrogation, made as a result custodial guilt and to establish the which conduce impeachment purposes is admissible for 38.22, pursuant the to Article accused” (c) only. provides subsection 3(c), supra. agree do with this We limiting this provision and, statute, instead, construction of oral confessions: in the context entire determine that any “shall apply statement which statute, 7, requiring an instruction to contains or assertions facts circum- jury the relevant law on “[w]hen stances that are found to be true and issue is refers to the voluntariness raised” guilt which conduce establish the involving issues issues constitution- and the accused, the finding such as of secret- warnings and waivers statutory al and ed or property thereof, stolen the instrument or in Article Sec. 2. contained Thus, which he states the offense was court we that the trial conclude charge jury statutory committed.” on the required to admissibility of oral state- standard for Thus, oral as a result of statements made ments, 3(c). contained interrogation custodial will be admissible as holding is our guilt, for this read- part, direct evidence of where state- basis together. and 7 ing or Secs. 6 ments assertions of facts cir- of Article “contain responsibil- true” the trial court’s cumstances that are found to be and Sec. addresses raised ities “where incriminating.1 are This exception to the of a ...” This the voluntariness general exclusion of such statements rule of provides: section further upon is based factors which existence of operate reliability to assure the of such “Upon finding as a course, any statements. oral statement matter and fact that state- Of of law made, is only voluntarily per- under this section of the statute ment may be submitted process requirements taining admissible if the due to such matter instructed that requirements and the shall be voluntariness 1974); (Tex.Cr.App. McGilvery g. Valtiero 1. See e. (1949). Chase v. Tex.Cr.R.
unless the beyond believes a reasona- court did not err in refusing appellant’s ble doubt that the statement was volun- requested charge to the jury. made, tarily shall not consider appel In his fifth such statement for any purpose nor any confession, lant contends oral which evidence obtained as a result thereof.” led to the recovery complainant’s Next, begins, as Sec. 7 the issue is “[w]hen property, was inadmissible as it was not raised ...” the trial court shall instruct the preceded warnings Ar proper under applicable law, on the which appears to 38.22, supra. ticle He contends that that contained in Sec. 2. from our requires statute that he receive the warn statute, reading of the it is clear that both ings person “from the to whom the state Secs. 6 and which deal with an accused’s ment is made.” The record reflects that rights regard to instructions to the arrested, immediately after he was jury, only speak to the issue of voluntari- rights lant was warned of his *4 ness. Lane. the oral admission Further, we find that Article by appellant to thereafter Of 3(c), dealing the statutory standard for Quast, Quast’s response ficer in to Officer of oral admissibility apart statements question. appears appellant it from standards of compli voluntariness and rights of his properly warned Offi ance with Miranda v. Arizona and its statu Lane, presence cer in the of Officer tory equivalent presents in a ques appellant gave and that his statement tion of law for the court’s determina Quast. Appellant’s contention has tion admissibility of the of the statement. adversely been answered him Maloy v.
Appellant’s requested charge would have State,
125, 129, (Tex.Cr.App.
582 S.W.2d
law,
question
submitted to
1979).
ground
This
of error is overruled.
State,
rather than fact. See Black v.
ground
In his final
(Tex.Cr.App.1973);
Hardy v.
State,
lant contends that the trial court erred
refusing
State,
prosecutor
to order the
(Tex.Cr.
In Scott v.
appellant’s proposed reputa
cross-examine
App.1968),the
complained
defendant
of the
of miscon
specific
tion witness as to
acts
trial court’s
refusal to
have
might
duct
which the witness
independent
make
findings of an oral and a
reflects
heard. The record
written
rejecting
confession. In
the con
to so order the
requested the trial court
tention that the jury, as well as the trial
prosecutor, prior
having
reputation
his
judge, must make independent findings be
refus
testify.
witness
When the trial court
fore the
confession was read to the
we
ed to order
limit cross-ex
prosecutor
stated:
time, appellant
amination
did not
at this
“The admissibility of the confession is
trial,
present
witness at
nor
reputation
determined
When
the court.
found to
out of the
perfect
exception
did he
a bill of
be voluntary
may
and admissible it
presence
let the
of the
in order to
read to the jury.
testimony
record reflect what the
given
instruction to be
the jury
been.
the record
witness would have
Since
where there is evidence before
reputation
wit
does
reflect to what the
voluntariness, etc., relates to their consid-
testified, appellant’s
ness would have
con
eration of the confession—not its admissi-
record
rely
tentions
on matters outside the
bility.
(Em-
V.A.C.C.P.”
preserved
and error is not
for review. See
phasis added)
Toler v.
S.W.2d
Likewise, we determine that Article 38.-
(Tex.
v.
Garza
S.W.2d
3(c)
legal
deals
with the
issue
Cr.App.1976).
statement,
oral
Further,
which is a
of law to be determined
had been
even if error
by the trial court. We hold that the trial
had
preserved,
and
contention
statement,
court,
oral
by appellant
tions
to the trial
his
timely presented
been
stating,
fruits is
es
“The
argument
expressly
without merit.
It is well
if a defense witness testifies
tablished that
it admissible.” The
what makes
good reputation,
e.,
as to an accused’s
unless
i.
charged on
cross-examination,
permitted, upon
State
been warned
had
found that
specific
to ask if
witness has heard of
intelligently
knowingly,
his
and
rights
incon
acts of
which would be
misconduct
rights prior to
voluntarily
and
waived
reputation in
good
sistent
order
test
making
then it could
Living
credibility of the witness. See
Appellant
any purpose.
consider it
ston v.
Hurd
(1979);
have been
jury should
complains
(Tex.Cr.App.1974);
find that
charged that must
additionally
Brown
which con-
led to evidence
of error is over
App.1972).
cir-
duced
Given
to establish
ruled.
case,
agree,
we do not
of this
cumstances
is affirmed.
judgment
but on different bases.
1(3)3
January
1975 Article
§
CLINTON, Judge, concurring.
provided that an oral “confession”
four, complaining of
Ground of error
re-
officer is admissible
custody
while
of an
give
requested charge,
fusal to
is with-
if:
merit,
out
but not for the reasons the ma-
orally
the defend-
“(e)
be made
It
against
He contends
jority
appellant.
rules
*5
or circum-
ant makes a statement
facts
that
terms of Article
V.A.
under the
true,
to
which
that are found
be
stances
oral state-
C.C.P.
at the time the
effect
as
guilt,
his
such
conduce to establish
ment
made
was entitled to such
was
he
property, or
finding of secreted or stolen
charge.1
The record reflects that
with which he states the
the instrument
apprehended appellant
after he was
offense was committed.”4
Quast2
that
an oral statement
Officer
led
during
the oral statement
personal
to recovery
property
of items of
interrogation was admis-
course of custodial
complainant,
appel-
which
belonging to
guilt
against appellant
sible
evidence
lant and his brother had discarded from
court,
effect, “found
when the trial
raping
their automobile after
and abandon-
[it]
did “conduce to estab-
ing her
true”5 and that it
in some isolated woods. The mate-
leading
recovery
objec-
rials
guilt,” by
were admitted in evidence over
lish
date,
29,
25,
August
1975;
January
Acts
after
effective
1977.
its
1.
offense was committed
1977,
935,
apprehended
p.
Leg.,
was
and made his oral
ch. 348.
65th
day;
statement the next
trial
held in Janu-
ary 1977.
personal
recovered
Just
items
were
4.
creek,
2, supra,
see note
are contem
from the
Quast,
2.
In the words of
while
Gage
plated
159
v.
Tex.
the statute.
transported
being
place
from
arrest
553,
336,
(1954).
556
Cr.R.
house;
station
[appellant],
him if
“1
to Vernon
asked
talked
falsity”
“probable
of a
5.
truth or
While
get
happened,
he
to tell me what
wanted
is
a factor to be considered
straight,
yes.
said
I asked
and he
business
determining
no,
v. Den
its
Jackson
books,
girl’s
him
papers
he did
her
what
368,
1774,
Former Article contained separate
two and distinct directions to a charging respect
trial court in statements and confessions. Section ques- “where a limited those cases
tion is raised as to the voluntariness statement,” confession or whereas Section FRANKLIN, Appellant, Lyle Cedric broadly appropriate directed an instruction law, general on the more viz: Texas, “3. Appellee. When the issue raised The STATE appropri- shall No. 59614. ately jury, generally, on the Texas, Appeals of Court of Criminal law pertaining to such statement or con- , No. _ Panel 1. fession.”6 *6 might While we well hold that whether 19, 1980. Nov. an oral found true, to be to establish his “conduce[s]
guilt” solely is a of law for resolu- determining
tion the trial court its admissibility. emphasis supplied throughout by 6. All confession-not its Article 38.- opinion writer of indi- unless otherwise V.A.C.C.P.” cated. theory his defense is that the sexual 8.The that, af- intercourse was a consensual act and 7. See Black v. lonely ter its consummation in a wooded area App. Hardy v. habitation, complain- some distance from ant, In Scott so, though invited do refused to enter 1968), S.W.2d 678 complained the defendant say at the car and ride back. While he did to in trial court’s refusal point that (later he and his set the materials brother independent findings struct the to make creek) car on the found “out of the rejecting an oral and a written confession. deny side of the road did and drove off” and jury, the contention that the as well as the trial materials in that he or his brother threw the judge, findings independent must make before creek, through insisting some charac- we stated: confession was read to the suddenly stopped ter of divination officers “The of the confession is deter- bridge or- at over Creek and Groeschke mined the court. When found to be vol- him to its waters to retrieve dered enter untary may read to the and admissible it items, testimony-even if books and other jury. as to credited-does not raise an issue of fact given The instruction to be where Appellant has not favored us “conduction.” there is evidence before it as to voluntari- ness, etc., supports position. any authority relates to their consideration