Steve Evans v. State ( 1992 )

Evans v. State

IN THE

TENTH COURT OF APPEALS

No. 10-90-105-CR

        STEVE EVANS,

                                                                                       Appellant

        v.

        THE STATE OF TEXAS,

                                                                                       Appellee

From the 12th District Court

Leon County, Texas

Trial Court # 7309-B

O P I N I O N

          Appellant was convicted by a jury of the burglary of Percy Westmoreland's home in Normangee and assessed forty years in prison and a $2,000 fine. See Tex. Penal Code Ann. § 30.02 (Vernon 1989). He argues that during the voir-dire examination the court allowed the State to improperly inform the jury that he had confessed and that the admission of the taped confession into evidence was error.

          In points two through five, Appellant asserts that the court erred in denying his motion to suppress the taped confession and in admitting it into evidence because it was the product of an unlawful arrest and was not voluntary. He also asserts that the taped confession should have been excluded because a copy of the recording was not furnished to his attorney "not later than the 20th day prior to trial."

          The State points out that a defendant who testifies at the punishment stage of his trial and admits his guilt has, for legal purposes, entered the equivalent of a plea of guilty. See DeGarmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985), cert. denied, 474 U.S. 973, 106 S. Ct. 337, 88 L. Ed. 2d 322 (1985); Taylor v. State, 819 S.W.2d 248, 249 (Tex. App.—Waco 1991, no pet.). By his admission, he waives the right to complain of any error that may have occurred during the guilt stage of the trial. Id. Furthermore, any error in admitting evidence is cured when the same evidence is admitted later without objection. Id.; Villareal v. State, 811 S.W.2d 212, 217 (Tex. App.—Houston [14th Dist.] 1991, no pet.).

          At the punishment stage, Appellant responded affirmatively when asked by the State if he had burglarized Mr. Westmoreland's home. Having thus admitted his guilt, he waived the right to complain about the court's admitting the confession into evidence. See id. We overrule points two through five.

          In point one, Appellant complains that the court allowed the State to use the term "confession" five times during a short voir-dire narrative about the jury's role when the defendant contests the voluntariness of a confession.

          Jury questions are proper when they seek to discover a juror's views on an issue applicable in the case. Smith v. State, 703 S.W.2d 641, 643-44 (Tex. Crim. App. 1985). Questions that reveal a potential juror's bias against any of the law applicable in the case cannot be considered improper voir dire because bias against the law is grounds for a challenge for cause. Id. When a fact issue about the use of a confession is raised, the jury must determine the issue under proper instructions from the court. Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979).

          Here, Appellant filed a motion to suppress the confession prior to trial and contested the voluntariness of the confession at trial. Thus, the State knew that Appellant had raised an issue that might be decided by the jury and consequently had the right to question the jury panel about possible bias towards the law applicable to the issue. See Smith, 703 S.W.2d at 643-44. We overrule point one.

          We affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 5, 1992

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Dissenting opinion delivered and filed May 9, 2007

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