By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Confessions--oral custodial statement admissible because not in response to questioning (99-4-28)
On November 10, 1999, the San Antonio Court of
Appeals held that an oral statement made by the juvenile while in custody was
admissible in evidence because it was volunteered and not made in response to
earlier questioning by the police.
99-4-28. In the Matter of K.M.C., UNPUBLISHED, No. 04-98-00039-CV, 1999 WL
1020939, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 11/10/99)[Texas Juvenile
Law 280 (4th Edition 1996)].
Facts: A jury found K.M.C. engaged in delinquent conduct by committing
aggravated robbery, and the trial court assessed a determinate sentence of
fifteen years. K.M.C. appeals arguing: (1) the trial court failed to properly
admonish her before trial; (2) the trial court erred in failing to suppress her
oral statement; (3) the evidence is factually insufficient to support the jury's
finding; (4) the State's closing argument deprived her of her right to a fair
and impartial trial; and (5) the trial court erred in failing to reform the
adjudication and disposition orders as agreed. We delete the deadly weapon
finding and otherwise affirm the trial court's judgment.
While waiting for his car to get washed, Borg Hansen met Jessica Longoria.
During the ensuing conversation, Longoria offered to have sex with Hansen for
money. Hansen gave Longoria his card and left. The next day, after receiving a
phone call from Longoria, Hansen agreed to meet her at a local restaurant. Upon
arriving, Hansen saw Longoria sitting at a table with another girl, later
identified as K.M.C. Hansen sat down and the three negotiated the price he would
pay for sex with the two girls. After they reached an agreement and finished
eating, Hansen drove Longoria and K.M.C. back to his house. Once there, the
girls roamed around the house, looking into various rooms. Hansen, Longoria, and
K.M.C. eventually went upstairs into the master bedroom, where Hansen proceeded
to play a pornographic video. However, before any sexual acts were initiated,
Longoria and K.M.C. left the bedroom and went into Hansen's front yard. At that
point Hansen decided that he had made a mistake and asked the girls to get into
his car. Hansen returned Longoria and K.M.C. to the restaurant, at which point
the girls asked him for money. When he refused, the girls indicated that they
knew where he lived and were willing to blackmail him. Hansen returned home
alone.
Hansen had not been home more than twenty minutes when the doorbell rang. He
came around the outside of the house to find Longoria and K.M.C., accompanied by
Charles Cameron. Longoria asked Hansen if she could retrieve a lighter she had
left in his house. Hansen said he would look for it. But, as he was walking back
into the house, Cameron beat Hansen about the head and stabbed him in the back.
Longoria, who was also carrying a knife, also beat Hansen. Hansen then watched
as Cameron, Longoria, and a fourth individual, Robert Kennedy, took some items
from his house and destroyed other items. Hansen attempted to get to the front
door several times, but Cameron kept dragging him back.
Cameron took Hansen upstairs to the walk-in closet in the master bedroom.
Longoria was also in the master bedroom taking Hansen's wife's jewelry. As
Cameron was looking through the closet and Longoria was looking through the
dresser, Hansen grabbed his gun in the closet and walked back into the bedroom.
Hansen then told Longoria and Cameron to drop their knives. Longoria lurched
toward Hansen with her knife and Hansen shot her. Cameron then dropped his
knife, picked up Longoria and left the house. Kennedy drove Cameron, Longoria,
and K.M.C. to a nearby gas station. When the police arrived, K.M.C. and Cameron
were standing next to Longoria's body. K.M.C. was arrested and later adjudicated
delinquent for committing aggravated robbery.
Held: Affirmed as modified.
Opinion Text: ADMONISHMENTS
At the beginning of a juvenile adjudication hearing, the juvenile court judge is
required to "explain to the child and his parent, guardian, or guardian ad
litem ... the allegations made against the child." Tex.Fam.Code Ann. §
54.03(b)(1) (Vernon 1996). The trial court cannot meet these requirements by
delegating its responsibility to the prosecutor in the case. In re K.L.C., 990
S.W.2d 242, 243-44 (Tex.1999). However, any error committed by the trial court
in delegating its responsibilities to the prosecutor can be rendered harmless if
the prosecutor read the petition "at the direction of and in the presence
of the trial court," and the petition was "sufficiently clear and
direct to explain the allegations against the juvenile." Id. at 244.
Here, the trial court personally informed K.M.C. of her privilege against
self-incrimination, her rights to counsel and a jury trial, and the consequences
of the proceedings. The trial judge also made clear that he wanted K.M.C. to
"understand ... the charges that are pending against you," and that he
would have the prosecutor read the charges out loud to her. The trial court then
asked the prosecutor "what are the charges against [K.M.C.]," and the
prosecutor read the relevant portion of the petition. The petition clearly
stated the charge, detailing the date, victim, type of weapon used against the
victim, and property stolen. K.M.C. then acknowledged she had heard the charges
and had no questions regarding them. We therefore hold any error the trial court
committed in failing to explain the allegations against K.M.C. was rendered
harmless by the fact that the petition was read by the prosecution at the behest
and in the presence of the court, and the petition was clear enough to explain
the aggravated robbery charges against K.M.C. See id.
MOTION TO SUPPRESS
In her second point of error, K.M.C. argues the trial court erred in denying her
motion to suppress a statement she made while in
police custody because the statement did not fit within any of the exceptions in
section 51.095 of the Texas Family Code. We disagree.
We review a trial court's denial of a motion to suppress under the abuse of
discretion standard. In re S.J., 977 S.W.2d 147, 151 (Tex.App.--San Antonio
1998, no pet.). Under this standard, we give the trial court's resolution of
questions of historical fact substantial deference as long as they are supported
by the record, but we review its rulings on questions of law and its application
of the law to the facts de novo, unless the "ultimate resolution of [the]
question[ ] turns on an evaluation of credibility or demeanor." Loserth v.
State, 963 S.W.2d 770, 772 (Tex.Crim.App.1998).
After the police arrested K.M.C. and read the Miranda warnings, they took her to
the juvenile offices in the San Antonio Police Department and placed her in an
interview room. Officer Billy Rutland went into the room and made sure K.M.C.
was comfortable. He then read K.M.C. her rights again and asked her if she
wanted to make a statement. When K.M.C. indicated she did, Officer Rutland
explained to her that she had to visit with a magistrate before he could take
her statement. Officer Rutland then drove K.M.C. to the magistrate's office less
than a mile away only to discover no magistrate judge was available.
Consequently, Rutland drove K.M.C. back to the police station and took her to
the same investigation room in which she had been before. Rutland asked K.M.C.
if she wanted anything to drink and retrieved some cigarettes for her.
At one point, without any questioning from Rutland, K.M.C. began talking about
the robbery. She told Rutland she had had a relationship with Longoria, and
Longoria told her about a man she had met who offered her money for sex. K.M.C.
said they developed a plan to meet the man (Hansen) and "get money from him
without having the sex with him." K.M.C. admitted she and Longoria met
Hansen at a restaurant and went to his house. But, when he started to try to
touch them, he would not give them money, so they "got mad and took
off." When they got back to the restaurant, K.M.C. said she paged her
friend Cameron. K.M.C. further stated that when Cameron and Kennedy arrived at
the restaurant and spoke with the girls, they all became angry, particularly
Cameron, who wanted to hurt Hansen. So, Cameron, Longoria, Kennedy, and K.M.C.
went back to Hansen's house. K.M.C. admitted they went into the house and began
tearing it up. She also saw Longoria and Kennedy taking some of Hansen's things,
but she claimed she did not take anything. Furthermore, while she said she knew
Cameron had a knife, she claimed she did not see him stab Hansen. Later, she saw
Cameron come out of the house dragging Longoria and she knew Longoria had been
shot. At that point, Rutland asked her "how she knew what had happened to
[Longoria]," and K.M.C. responded that Cameron told her. According to
Rutland, this was the first question he asked K.M.C. Prior to that question,
K.M.C. had been "just talking," and Rutland "just was
listening." Furthermore, Rutland could not specifically remember asking
K.M.C. any questions other than how she knew Longoria had been shot. After
answering Rutland's question, K.M.C. went on to explain that Kennedy drove all
of them to a nearby gas station where the police picked them up. When K.M.C.
finished talking about the incident, Rutland took her back to the magistrate's
office. After speaking with a magistrate, K.M.C. decided not to give a statement
without her attorney. K.M.C. apologized to Rutland because she had promised him
a statement.
Before trial, K.M.C. moved to suppress evidence of the oral statement she made
to Rutland, arguing it was the result of custodial interrogation and did not
fall within any of the categories of admissible statements in section 51.095 of
the Texas Family Code. The State argued K.M.C.'s statement was not the result of
custodial interrogation but a spontaneous outburst not in response to any type
of interrogation and thus admissible. See Tex.Fam.Code Ann. § 51.095(b)(1)
(Vernon Supp.1998). The trial court agreed and allowed Rutland to testify
regarding K.M.C.'s entire oral statement. K.M.C. argues on appeal that Rutland
took several actions that amounted to interrogation: (1) Rutland placed himself
in the same room where he had previously interrogated K.M.C.; (2) he made sure
K.M.C. was comfortable; (3) he was concerned about the lapse of time since she
said she would make a statement; (4) he was confident that he would get a
statement from K.M.C.; and (5) he questioned K.M.C. about how she knew Longoria
had been shot.
Section 51.095 does not bar the admission of statements that are not made in
response to custodial interrogation. Id. The parties agree K.M.C. was in custody
when she gave her statement, but they disagree whether her statement stemmed
from interrogation. "Interrogation" is not only "express
questioning, but also ... 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, 100 S.Ct. 1682, 64
L.Ed.2d 297 (1980). An "incriminating response" is "any
response--whether inculpatory or exculpatory--that the prosecution may seek to
introduce at trial." Id. at n. 5.
K.M.C. argues when she was placed in the interrogation room for a second time
her statement "was a continuation of [Rutland's] custodial
interrogation" from when they were first in the room. However, the record
fails to show interrogation ever began. Rutland warned K.M.C. of her rights and
asked her whether she would like to make a statement. When she responded that
she did, Rutland clearly delayed interrogation until K.M.C. could be magistrated.
Furthermore, to the extent Rutland's question "would you like to make a
statement?" amounted to interrogation, K.M.C.'s statement was too far
removed in substance and in time from the question to constitute a response to
the question. [FN1] Therefore, K.M.C.'s statement did not stem from any earlier
interrogation. See Etheridge v. State, 903 S.W.2d 1, 15 (Tex.Crim.App.1994)
(statement that went beyond scope of officer's inquiry was not the result of
custodial interrogation), cert. denied, 516 U.S. 920, 116 S.Ct. 314, 133 L.Ed.2d
217 (1995); Longoria v. State, 763 S.W.2d 597, 599- 600 (Tex.App.--Corpus
Christi 1988, no pet.).
FN1. Roughly forty-five minutes passed from the time Rutland initially spoke
with K.M.C. to the time she finished telling him about the robbery.
Furthermore, Rutland's acts of removing K.M.C.'s handcuffs, giving her
cigarettes, letting her use the restroom, and asking her if she needed anything
to drink were not actions that Rutland should have known were reasonably likely
to elicit incriminating statements from K.M.C. And Rutland's thoughts and
concerns amounted to neither "words" nor "actions" that
could be construed as interrogation. Finally, while Rutland did ask K.M.C. to
explain one statement, any error in admitting K.M.C.'s subsequent response was
harmless in light of the fact that K.M.C. had already made much more damaging
and incriminating statements that were admissible. See Tex.R.App.P. 44.1(a);
c.f. Cox v. State, 843 S.W.2d 698, 702 (Tex.App.--Corpus Christi 1992, pet.
ref'd).
Therefore, we overrule K.M.C.'s second point of error.
FACTUAL SUFFICIENCY
Under her third point of error, K.M.C. argues the evidence was factually
insufficient to support the jury's finding.
When reviewing a factual insufficiency challenge, we consider all of the
evidence and set aside the verdict only if it is "so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust."
Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); In re A.C., 949 S.W.2d
388, 389-90 (Tex.App.--San Antonio 1997, no writ).
A person commits the offense of aggravated robbery "if he commits robbery
as defined in Section 29.02, and he ... uses or exhibits a deadly weapon."
Tex.Pen.Code Ann. § 29.03(a)(2) (Vernon 1994). A person commits robbery, when
"in the course of committing theft ... and with intent to obtain or
maintain control of the property, he ... intentionally or knowingly threatens or
places another in fear of imminent bodily injury or death." Id. §
29.02(a)(2). Theft is the unlawful appropriation of property with the intent to
deprive the owner of the property. Id. § 31.03(a). Under the law of parties, a
person is criminally responsible as a party to an offense if the offense is
committed by someone for whom she is criminally responsible. Id. § 7.01(a).
"A person is criminally responsible for an offense committed by the conduct
of another if[,] ... acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense." Id. § 7.02(a)(2).
K.M.C. correctly points out there is no evidence K.M.C. took anything from the
house or saw Cameron stab Hansen. Nonetheless, we hold there is factually
sufficient evidence to support a finding that K.M.C. was criminally responsible
as a party to the aggravated robbery of Hansen. K.M.C. admitted she and Longoria
planned to get money from Hansen. When they first went to his house, they looked
around several of the rooms. After Hansen returned K.M.C. and Longoria to the
restaurant, the girls warned Hansen that they knew where he lived and attempted
to blackmail him. K.M.C. then paged her friend, Cameron, who met them at the
restaurant. K.M.C. and the others became angry and went back to the house. K.M.C.
knew Cameron had a knife. Cameron attacked Hansen with the knife, and he and
Longoria both beat him. Hansen testified he was afraid for his life. K.M.C.
entered the house and took part in damaging Hansen's home. Longoria, Cameron,
and Kennedy each took items out of Hansen's home. K.M.C. joined the others as
they left with bags full of Hansen's property. In light of this evidence, we
hold the evidence is factually sufficient to support the jury's finding. See
Dudik v. State, 994 S.W.2d 267, 269-71 (Tex.App.--Houston [14th Dist.] 1999, no
pet. h.).
JURY ARGUMENT
K.M.C. argues in her fourth point of error that the trial court erred in
allowing the State to make the following incurable remarks to the jury during
closing argument:
This is your opportunity to make a difference in [K.M.C.'s] life. You want to
save her life? Then you find her guilty of this offense so that she can get the
supervision she needs so that she can start being held accountable for her
actions so somebody can make her go to school and get her education and
hopefully turn her into something better than she was six months ago. This is
her one chance, and this is your chance to make a difference.
However, K.M.C. waived any error caused by the admission of the prosecutor's
argument by failing to object at trial. See In re C.O.S., 988 S.W.2d 760, 765-66
(Tex.1999); Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App.1996), cert.
denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997). Therefore, we
overrule K.M.C.'s fourth point of error.
DEADLY WEAPON FINDING
In her final point of error, K.M.C. argues the trial court erred in failing to
reform the disposition order to reflect that she did not use or exhibit a deadly
weapon. We agree. The trial court found in its order of disposition that K.M.C.
"did use and exhibited a (deadly weapon/firearm) during the commission of
the delinquent conduct or during the immediate flight from the commission of the
delinquent conduct." To support this finding there must be some evidence
K.M.C. personally used or exhibited a weapon. In re A.F., 895 S.W.2d 481, 486 (Tex.App.--Austin
1995, no writ); see Tex.Fam.Code Ann. § 54.04(g) (Vernon 1996). There is no
such evidence. The trial court thus indicated it would reform the disposition
order to delete its deadly weapon finding. But the record does not reflect any
change. We therefore sustain K.M.C.'s fifth point of error and reform the
disposition order to delete the trial court's finding that K.M.C. used and
exhibited a deadly weapon. See In re A.F., 895 S.W.2d at 486-87.
We affirm the judgment as reformed.