Eric Byron Crayton v. State ( 2015 )

ACCEPTED
03-14-00570-CR
5932628
THIRD COURT OF APPEALS
AUSTIN, TEXAS
July 29, 2015 7/3/2015 8:21:32 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00570-CR
__________________________________________________________
RECEIVED IN
IN THE COURT OF APPEALS FOR THE THIRD 3rd COURT OF APPEALS
AUSTIN, TEXAS
DISTRICT OF TEXAS 7/3/2015 8:21:32 PM
__________________________________________________________
JEFFREY D. KYLE
Clerk
ERIC BYRON CRAYTON, Appellant
v.
THE STATE OF TEXAS, Appellee
__________________________________________________________
On Appeal from the 207th Judicial District Court of Comal County, Texas
Cause No. CR2012-225
Honorable Jack Robison, District Judge Presiding
__________________________________________________________
BRIEF FOR THE STATE
__________________________________________________________
Jennifer Tharp
Criminal District Attorney
By
Clayten Hearrell
SBN: 24059919
Assistant District Attorney
150 N. Seguin Avenue, Suite #307
(830) 221-1300
Fax (830) 608-2008
New Braunfels, Texas 78130
E-mail: hearrc@co.comal.tx.us
Attorney for the State
Oral Argument Is Requested
i
IDENTITY OF PARTIES AND COUNSEL
Appellant – Eric Byron Crayton
Appellee – The State of Texas
Attorneys for the Appellant
Josh Erwin
The Erwin Law Firm, L.L.C.
109 E. Hopkins Street, Suite 200
San Marcos, TX 78666
For the Appellant at Trial
Amanda Erwin
The Erwin Law Firm, L.L.C.
109 E. Hopkins Street, Suite 200
San Marcos, TX 78666
For the Appellant on Trial
Richard Wetzel
SBN: 21236300
wetzel_law@1411west.com
1411 West Ave., Suite 100
Austin, TX 78701
(512) 469-7943
(512) 474-5594
For the Appellant on Appeal
Attorney for the Appellee
Clayten Hearrell
Assistant Criminal District Attorney
Comal County Criminal District Attorney’s Office
150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130
Attorney for the State at Trial and on Appeal
ii
Table of Contents
Index of Authorities ...................................................................................................v
Statement of the Case.................................................................................................1
Statement of Facts ......................................................................................................3
1. STATE’S RESPONSE TO APPELLANT’S FIRST POINT OF
ERROR ..........................................................................................................11
Summary of the Argument ...........................................................................11
Facts Pertinent to the 38.22 Warnings .................................................12
Waiver......................................................................................................16
Standard of Review ................................................................................18
Authorities Regarding 38.22 ..................................................................19
Argument Regarding the Bible Factors ...............................................22
2. STATE’S RESPONSE TO APPELLANT’S SECOND POINT OF
ERROR ..........................................................................................................27
Summary of the Argument ...........................................................................27
Facts Pertinent to Invocation of Right to Remain Silent ....................28
Waiver......................................................................................................30
Standard of Review ................................................................................32
Authorities Regarding Invocation of the Right to Remain Silent .....33
Argument Regarding Invocation of the Right to Remain Silent .......34
iii
3. STATE’S RESPONSE TO APPELLANT’S THIRD POINT OF
ERROR ..........................................................................................................39
Summary of the Argument ...........................................................................39
Facts Relevant to Legal Sufficiency ......................................................40
Authorities on Legal Sufficiency ...........................................................42
Argument on Legal Sufficiency .............................................................44
4. STATE’S RESPONSE TO APPELLANT’S FOURTH POINT OF
ERROR ..........................................................................................................49
Summary of the Argument ...........................................................................49
Facts Relevant to Corpus Delecti ..........................................................50
Authorities on Corpus Delecti ...............................................................52
Argument on Corpus Delecti .................................................................54
Prayer for Relief .......................................................................................................58
Certificate of Service ...............................................................................................59
Certificate of Compliance ........................................................................................59
iv
INDEX OF AUTHORITIES
CASE PAGE
Berghuis v. Thompkins 560 U.S. 370
(2010) ...................................................................................................... 33
Bible v. State, 162 S.W.3d 234 (Tex.
Crim. App. 2005) ..................................................................................... 20-26
Briscoe v. State, 03-11-00014-CR,
2013 WL 4822878, at *1 (Tex. App.
—Austin Aug. 29, 2013, no pet.)
(not designated for publication) ............................................................... 46
Bulington v. State, 179 S.W.3d 223
(Tex. App.—Texarkana 2005, no pet.) .................................................... 52
Carrizales v. State, 414 S.W.3d 737
(Tex. Crim. App. 2013)............................................................................ 53
Crain v. State, 315S.W.3d 43 (Tex.
Crim. App. 2010) .................................................................................... 18, 32
Davis v. U.S. 512 U.S. 452 (1995) ........................................................... 33
Dowthitt v. State 931 S.W.3d 244
(Tex. Crim. App. 1996) ........................................................................... 33
Dunn v. United States, 284 U.S. 390
(1932) ....................................................................................................... 48
Ex Parte Bagley, 509 S.W.2d 332
(Tex. Crim. App. 1974)............................................................................ 21-22
Fisher v. State, 851 S.W.2d 298
(Tex. Crim. App. 1993)............................................................................ 52-53, 56
v
Franks v. State, 712 S.W.2d 858
(Tex. App.—Houston [1st Dist.] 1986,
pet. ref’d) .................................................................................................. 20-22
Guevara v. State, 152 S.W.3d 45 (Tex.
Crim. App. 2004) .................................................................................... 44
Hayes v. State, 05-11-00260-CR, 2013
WL 1614108 (Tex. App.—Dallas Feb.
19, 2013, no pet.) (not designated for
publication) .............................................................................................. 19-20
Jackson v. Virginia, 443 U.S. 307
(1979) ....................................................................................................... 42-43
Kiffe v. State, 361 S.W.3d 104 (Tex.
App.—Houston [1st Dist.] 2011, pet.
ref’d) ......................................................................................................... 42-43
Kupferer v. State 408 S.W.3d 485
(Tex. App.—Houston [1st Dist.] 2013,
pet. ref’d) .................................................................................................. 33
Laster v. State, 275 S.W.3d 512 (Tex.
Crim. App. 2009) ..................................................................................... 43
Lumpkin v. State 129 S.W.3d 659 (Tex.
App.—Houston [1st Dist] 2004, pet.
ref’d) ......................................................................................................... 45
Margraves v. State, 34 S.W.3d 912
(Tex. Crim. App. 2000)............................................................................ 43
Marshall v. State 210 S.W.3d 618 (Tex.
Crim. App. 2006) ..................................................................................... 33
Martinez v. State, 348 S.W.3d 919 (Tex.
Crim. App. 2011) .................................................................................... 18, 32
vi
Miller v. State, 457 S.W.3d 919 (Tex.
Crim. App. 2015) ..................................................................................... 53-54
Miranda v. Arizona 384 U.S. 436
(1966) ...................................................................................................... 33
Ramos v. State 245 S.W.3d 410 (Tex.
Crim. App. 2008) ..................................................................................... 33
Salazar v. State, 86 S.W.3d 640 (Tex.
Crim. App. 2002) ..................................................................................... 54
Steckler v. United Sates, 7 F.2d 59 (2d
Cir. 1925) ................................................................................................. 48
Thomas v. State, 408 S.W.3d 877 (Tex.
Crim. App. 2013) ..................................................................................... 16-17,30-31
Williams v. State, 958 S.W.2d 186 (Tex.
Crim. App. 1997) ..................................................................................... 52
Wilson v. State, 311 S.W.3d 452 (Tex.
Crim. App. 2010) .................................................................................... 18, 32
Young v. State, 283 S.W.3d 854 (Tex.
Crim. App. 2009) .................................................................................... 19, 32
STATUTE PAGE
TEX. CRIM. PROC. CODE art. 38.22 ................................................... 19-26, 33
TEX. PENAL CODE ANN. § 37.09 ....................................................... 44-45
vii
STATEMENT OF THE CASE
On May 9, 2012, in Cause Number CR2012-225 in the 207th Judicial District
Court of Comal County, Texas, the Grand Jury returned a two-count indictment
against Appellant, Eric Byron Crayton, for the felony offenses of Murder and
Tampering with Physical Evidence (I C.R. at 8-9). The first count of the
indictment alleged Murder under two alternative charging paragraphs (id.). The
second count of the indictment alleged Tampering with Physical Evidence under
two alternative charging paragraphs (id.).
In addition to the two criminal counts set therein, the indictment also
contained two enhancement paragraphs (id.). The first enhancement paragraph
alleged that Appellant had been convicted on or about August 4, 2005, in the 22nd
District Court of Comal County, Texas of the felony offense of Unlawful
Possession of a Weapon by a Felon, committed on or about January 6, 2005; the
second enhancement paragraph alleged that Appellant had been convicted on or
about November 5, 2002, in the 22nd District Court of Comal County, Texas of the
felony offense of Burglary of a Habitation, committed on or about June 17, 1994
(id.). As set out in the enhancement paragraphs, Appellant was a habitual felon
subject to a range of punishment from 25 years to 99 years or life in prison. Tex.
Pen. Code §12.42(d).
1
A Motion to Suppress Illegally Seized Evidence was filed by Appellant on
May 23, 2013 (id. at 37-40). A hearing was held on the Appellant’s Motion to
Suppress on February 18, 2014 (I Supp. II R.R. at 1). At the end of that hearing,
the court invited the parties to submit bench briefs on the issues presented during
the hearing and took the matter under advisement (id. at 53-57). The Appellant
filed his brief by letter to the court on February 27, 2014 (I C.R. at 47-53). The
Appellee filed his brief with the court on March 10, 2014 (id. at 54-68). On June
17, 2014 the court denied in part and granted in part the Appellant’s Motion to
Suppress (I Supp. I C.R. at 5-8). Specifically, the court ordered that everything
contained after 26:03 mark on State’s Pre-Trial Exhibit 6 was to be suppressed, but
otherwise denied the Appellant’s Motion to Suppress (id.). The court entered
Findings of Fact and Conclusions of Law regarding the Appellant’s Motion to
Suppress on June 17, 2014 (id.).
On August 8, 2014, the jury found Appellant not guilty of the felony offense
of Murder as alleged in Count I of the indictment, and found the Appellant guilty
of the felony offense of Tampering with Physical Evidence as alleged in Count II
of the indictment (I C.R. at 117-118 and VI R.R. at 75). After receiving the jury’s
verdict in guilt/innocence, the court requested that each side prepare and present
briefs to the court explaining how a conviction for Tampering with Physical
Evidence could be sustained after an acquittal for the underlying Murder (VII R.R.
2
at 6-7). Both Appellant and Appellee presented briefs and the court allowed the
case to continue to punishment on August 11, 2014 (VII R.R. at 6-7).
Prior to trial, Appellant had elected for the jury to assess his punishment in
the event he was convicted (I C.R. at 96). At the beginning of the punishment
phase of the trial, the enhancement paragraphs of the indictment, making Appellant
a habitual offender, were read before the jury. Appellant entered a plea of true to
each enhancement paragraph (VII R.R. at 13-14). After hearing evidence and
arguments of counsel on punishment, the jury found each enhancement paragraph
to be true and assessed Appellant's punishment at a term of 35 years in the
Institutional Division of the Texas Department of Criminal Justice (I C.R. at 143-
144 and VII R.R. at 61). On August 11, 2014, that sentence of 35 years was
imposed in open court (VII R.R. at 62).
On August 27, 2014, Appellant timely filed a notice of appeal (I C.R. at
145). Appellant now seeks reversal of his conviction and an acquittal, reversal of
his conviction and a new trial, or other appropriate relief (Appellant’s Brief at 34).
STATEMENT OF FACTS
Around November 1, 2011, Tina Owens moved into a cabin at the Canyon
Falls RV Park in Canyon Lake, Texas (III R.R. at 26). Andrea Hebert was a friend
of Ms. Owens and helped Ms. Owens move into the Canyon Falls RV Park (id.).
3
Shortly after Ms. Owens took up residence at Canyon Falls RV Park, Ms. Hebert
started living with Ms. Owens (id. at 26-27). During the early part of November
2011, Andrea Hebert began a romantic relationship with another resident of
Canyon Falls RV Park named Thomas Kitto (id. at 25 - 27). By December 31,
2011, Andrea Hebert and Thomas Kitto were in a committed dating relationship
with one another (id. at 27).
On January 19, 2012, Andrea Hebert left for work at around 6:00 a.m. (id. at
31). She returned to the Canyon Falls RV Park at about 3:00 p.m. that same
afternoon (id. at 32). Whenever Andrea arrived at the RV park, she found Thomas
Kitto sitting in the courtyard with fellow residents Kerry West and Lee Paden (id.).
Mr. Kitto made her a drink and they talked briefly before Ms. Hebert went inside
Tina Owens’ cabin (id.). Ms. Hebert laid down inside Ms. Owens’ cabin and took
a nap that lasted between one to two hours (id.). Ms. Owens was awakened by a
text message from Mr. Kitto and went outside to the courtyard where she sat and
visited with Mr. Kitto, Mr. West, Mr. Paden, and Scott Padgett (id. at 33). After
about five minutes of conversation, Ms. Hebert received a text message from Eric
Crayton, Appellant (id. at 47). Ms. Hebert informed Mr. Kitto that she was going
to meet with Appellant and get a pack of cigarettes (id.). Before she left, Ms.
Hebert told Mr. Kitto that she did not want to deal with the Appellant’s problems
(id.).
4
A short time later, Ms. Hebert met the Appellant at the Super S convenience
store (id. at 50). Appellant was sitting in the driver’s seat of a vehicle, which
belonged to Heidi Trumbower (id. at 50-52). Ms. Hebert spoke to the Appellant,
who began to describe certain relationship problems he was experiencing (id. at
54). Ms. Hebert stopped the Appellant and invited him back to her cabin to talk
further (id.). The Appellant was instructed to meet Ms. Hebert at the Canyon Falls
RV Park (id.). When Appellant arrived at the RV park, he sat in his vehicle,
awaiting the arrival of Ms. Hebert (id. at 55). Ms. Hebert stopped to buy cigarettes
and then proceeded to the RV park as well (id. at 54).
Upon arrival at the Canyon Falls RV Park, Ms. Hebert parked next to the
vehicle Appellant had driven and they each exited their vehicles (id. at 55). Ms.
Hebert collected her groceries and removed her dog from her vehicle (id.). She
asked the Appellant to assist her by taking the dog’s leash while she carried the
groceries and the Appellant obliged (id.). During this time, Mr. Kitto was sitting at
a table in the common area of the cabins with Mr. Padgett (id.). Ms. Hebert and
the Appellant walked past Mr. Kitto to Ms. Hebert’s cabin (id. at 55-58). As they
reached the cabin, Ms. Hebert took the dog from the Appellant and began to place
the groceries on the porch (id. at 58). Mr. Kitto then ran to the Appellant, grabbed
him by the shirt, told the Appellant that he was not welcome there, and then threw
the Appellant to the ground (id. at 59). The Appellant scrambled backwards,
5
trying to return to his feet, while saying “Man, what did I do?” and “You’re
freaking me out.” (id. at 60). Ms. Hebert grabbed Mr. Kitto’s arm and told him to
stop (id. at 61). Mr. Kitto hit the Appellant a second time, sending him back to the
ground (id.). Thereafter, Mr. Kitto returned to his table and sat back down with his
back to the Appellant (id. at 63). Ms. Hebert went and spoke to Mr. Kitto about
what had just transpired with the Appellant (id.). The Appellant returned to his
feet and approached Mr. Kitto from behind as he sat at the table (id.). Ms. Hebert
explicitly told the Appellant to leave (id. at 64). Although the Appellant’s path to
his vehicle was unblocked, he chose to remain and seek an explanation from Mr.
Kitto (id.). During this time, Mr. Kitto initially sat calmly while the agitated
Appellant continuously asked, “What did I do?” (id. at 63-64).
After about two minutes, Ms. Hebert’s dog broke loose from the cabin and
starting running around the grounds (id. at 65). Ms. Hebert and Mr. Kitto got up
from the table and pursued the dog (id. at 65-66). As Ms. Hebert and Mr. Kitto
pursued the dog, the Appellant shadowed Mr. Kitto across the yard (id. at 66). Ms.
Hebert and Mr. Kitto managed to catch the dog in front of Cabin G (id. at 66).
When Ms. Hebert bent over to gain control of the dog, the Appellant squared up
face-to-face with Mr. Kitto while Ms. Hebert knelt between them (id. at 66). Mr.
Kitto then raised his arms, placed his hands on Ms. Hebert, and began pushing her
aside (id. at 66-71). As Mr. Kitto pushed Ms. Hebert out of the way, she looked
6
towards the Appellant and saw the Appellant pull a fixed-blade knife from his hip.
(id.). Upon seeing the knife, Ms. Hebert remarked “Really?” and Mr. Kitto
exclaimed “Seriously?” (id. at 69 -70). Mr. Kitto pushed Ms. Hebert out of the
way and she took the dog to her cabin (id. at 70-71). When Ms. Hebert turned
around, she saw Mr. Kitto standing with his back turned to her in the same position
as he had been when he pushed her out of the way and she saw the Appellant was
on his back on the ground in front of Mr. Kitto, scrambling backwards (id.). Ms.
Hebert again yelled at the Appellant to leave (id. at 72). As the Appellant regained
his footing feet he struggled to pick up something that he had dropped during the
assault (id. at 72).
Mr. Kitto turned towards Ms. Hebert (id.). He then took off his shirt,
revealing a very large wound and tried to walk towards Ms. Hebert (id. at 73). Mr.
Kitto took two steps towards Ms. Hebert and fell (id.). As Ms. Hebert ran to Mr.
Kitto, she heard a sound like that of gushing water (id. at 78). Upon reaching his
vehicle, the Appellant pulled out of the parking lot and turned the wrong way into
the RV park (id. at 74). The Appellant turned around inside the park and then
passed in front of the cabins to exit out onto the highway (id.). As he passed the
cabins, multiple bystanders tried to flag the Appellant down and get him to stop;
however, the Appellant fled the scene and continued out onto the highway (id. at
75). Mr. Kitto suffered six incised wounds of varying depth to his chest, abdomen,
7
and arms (V R.R. at 125-142). Some of those wounds could have been considered
defensive wounds and two of the six wounds suffered by Mr. Kitto were
independently capable of causing death (id. at 132, 142). One of these wounds
pierced the pericardial sac and the right ventricle of the heart, resulting in massive
blood loss consistent with the waterfall-like sound reported at the scene (id. at 126,
131). First aid efforts were unsuccessful and Mr. Kitto was declared dead at the
scene (III R.R. at 176).
Deputies with the Comal County Sheriff’s office responded, secured the
scene, and began taking statements (id. at 174). The Appellant was immediately
identified by witnesses at the scene as the actor responsible for Mr. Kitto’s injuries
and patrol deputies with the Comal County Sheriff’s Office immediately began
searching for the Appellant (id. at 175). Later that night and into the next morning,
deputies photographed and collected physical evidence from the scene. On the
ground near the body of Mr. Kitto, deputies found a baseball cap and the sheath for
a fixed-blade knife (id. at 186-189). One of the deputies who originally responded
to the scene before being redirected to search for the Appellant was Deputy Chris
Koepp (IV R.R. at 84-85). That same evening, Deputy Koepp found the Appellant
driving a green pickup truck near his residence (id. at 86). Deputy Koepp initiated
a traffic stop and the vehicle eventually stopped in a nearby driveway (id. at 88).
Deputy Koepp ordered the Appellant to place his hands on the squad car (id. at 89).
8
The Appellant appeared compliant with the deputy’s commands and walked
towards the squad car with his hands in the air, however, when Deputy Koepp
lowered his taser and reached for his handcuffs, the Appellant exclaimed “Fuck
that. I’m not going back” and proceeded to run on foot (id.). Deputy Koepp
pursued the Appellant, tackled him in the road, and dragged him back to the squad
car where he was secured in hand cuffs (id. at 89-91). Prior to his encounter with
Deputy Koepp, the Appellant did not have any injuries (id. at 91). The Appellant
was placed under arrest for the offense of evading arrest or detention and was
taken to the Comal County Sherriff’s Office (id. at 101-102).
Upon arrival at the Comal County Sheriff’s Office, Detective Rex Campbell
met the Appellant in the interview room (id. at 116). Detective Campbell
photographed the Appellant, discussed the injuries that Appellant received while
evading Deputy Koepp, read the Appellant his 38.22 warning twice and informed
him that another officer was on his way to speak to the Appellant (id. at 116-123).
Prior to entering the interview room, Detective Campbell placed a DVD into the
recording system and also turned on the digital recorder that he kept in his pocket
(id. at 123). After sitting with the Appellant for some time, Detective Campbell
stepped into the crime analyst office and turned off his audio recording device (id.
at 129-130). Thereafter, Detective Campbell discovered that the video recording
system had malfunctioned and did not produce a visual recording of his encounter
9
with the Appellant (id. at 123). Upon discovering the error, Detective Campbell
restarted the video recording equipment and returned to the room (id. at 123).
Both sets of 38.22 warnings were recorded on the audio recording and the
Appellant agreed to waive his rights and give a statement each time the warnings
were read to him (VIII R.R. State’s Ex. 72).
An hour and fifteen minutes after the Appellant got to the Sheriff’s Office,
Sergeant Tommy Ward arrived (I Supp II R.R. at 34). Sergeant Ward spoke to
Detective Campbell outside of the interview room to verify that the Appellant had
been read his statutory warnings and agreed to give a statement (IV R.R. at 143).
Sergeant Ward then began to talk to the Appellant about the death of Mr. Kitto
(id.). During the course of this interview, the Appellant admitted to stabbing Mr.
Kitto with a knife that the Appellant kept in a sheath in his back pocket (VIII R.R.
State’s Ex. 73). The Appellant further stated during that interview that he lost the
sheath to the knife and that he threw the knife into Sorrell Creek (id.). Based on
the assertions made during the interview with the Appellant, Sergeant Ward
secured a search warrant for the Appellant’s residence and sent multiple deputies
to search Sorrell Creek for the knife used in the assault (IV R.R. at 148-149).
Deputies were not able to locate the knife in Sorrell Creek (id. at 149). The
following morning, Sergeant Ward conducted a second interview with the
Appellant which was also recorded (id. at 150). Although the knife used in the
10
assault was never located, both the baseball cap and the knife sheath found at the
scene were sent to the DPS lab for testing (id. at 49). The DPS lab confirmed that
the Appellant’s DNA was on both items (id.).
STATE’S RESPONSE TO APPELLANT’S FIRST POINT OF ERROR
Summary of the Argument
In his first point of error, Appellant argues that the trial court abused its
discretion by admitting the Appellant’s video recorded statement to Sergeant Ward
from January 19, 2012 (Appellant’s Brief at 12). In furtherance of his argument,
Appellant asserts that video recording does not meet the requirements of Article
38.22 of the Texas Code of Criminal Procedure on the actual video recording
admitted into evidence (id. at 21). The Appellant concedes that two recordings
were produced from the officer’s encounter with the Appellant on January 19,
2012, one of which is an audio recording that contains the proper instructions (id.).
However the Appellant argues that these recordings should be construed as two
separate interviews rather than one continual interview because the Appellant was
intoxicated at the time of the interview, fell asleep prior to Sergeant Ward’s arrival,
and approximately 45 minutes passed between the two sessions (id.). Appellant’s
argument that these recordings should be construed as two separate interviews
11
misconstrues the evidence presented and ignores several important facts that
support the court’s decision to treat the transaction as one continuous interview.
Facts Pertinent to the 38.22 Warnings
On January 19, 2012 the Appellant was arrested for the offense of evading
arrest or detention and was taken to the Comal County Sherriff’s Office (IV R.R. at
101-102). At the time of his arrest, the Appellant was the suspect in the murder
investigation regarding the death of Thomas Kitto (id. at 116). Following the
arrest for evading arrest or detention, Detective Rex Campbell went to the Comal
County Sheriff’s Office to meet with the Appellant (id.). Before going into the
interview room where the Appellant was held, Detective Campbell placed a DVD
into the video recording system and activated the audio recorder that he kept in his
shirt pocket (id. at 123). Detective Campbell made his first contact with the
Appellant at approximately 10:40 p.m. on January 19, 2012 (I Supp. II R.R. at 32).
Once he made contact with the Appellant, Detective Campbell took a series of
photos of the Appellant as he appeared there in the interview room (id.). Detective
Campbell did not interview the Appellant regarding his involvement in the murder
because he did not know the details of the ongoing investigation (id. at 16-17).
Detective Campbell’s function was merely to read the Appellant his required
12
warnings and babysit him until Sergeant Ward could arrive to conduct the
interview (id. at 18).
Detective Campbell first read the Appellant his required warnings at
approximately 10:48 p.m. (I Supp. I C.R. at 5-8). The Appellant and Detective
Campbell then discussed the Appellant’s level of intoxication before Detective
Campbell read the statutory warnings to the Appellant a second time at
approximately 11:00 p.m. (I Supp. II R.R. at 28). Detective Campbell also
explicitly told the Appellant that he would not be questioning him and that a
second detective was on the way to perform the interview (VIII R.R. State’s Ex.
72). Each time the Appellant indicated that he understood the warnings; after the
second reading, the Appellant signed a written waiver form (I Supp. II R.R. at 28).
At approximately 11:20 Detective Campbell stepped into the crime analyst office
and turned off his audio recorder (id. at 33). After leaving the crime analyst office,
Detective Campbell noticed that the video recording equipment had malfunctioned
and ejected the disk inside (id.). Detective Campbell restarted the video recording
system and continued to wait for Sergeant Ward to arrive (id.). When Sergeant
Ward arrived at the Sheriff’s Office, he verified with Detective Campbell that the
Appellant had been read his rights and wished to waive those rights (id. at 44). At
approximately 11:55 Sergeant Ward entered the interview room with Detective
Campbell and started his interview of the Appellant (id. at 34). Although the
13
warnings given by Detective Campbell and the interview conducted by Sergeant
Ward were recorded on two different exhibits, less than an hour passed between
the warnings and the interview, the Appellant never changed rooms, and Detective
Campbell remained present with the Appellant throughout his questioning.
A pre-trial hearing was held on February 18, 2014 regarding the Appellant’s
motion to suppress the video-recorded statement from January 19, 2012 (I Supp. II
R.R. at 1). Following that hearing, the court denied in part the Appellant’s motion
to suppress and entered written findings of fact and conclusions of law (I Supp. I
C.R. at 5-8). Specifically, the trial court made the following findings of fact:
• That Detective Campbell recorded his initial contact with the
Appellant via an audio recording device;
• That Detective Campbell read the Appellant his statutory warnings in
accordance with Article 38.22 of the Texas Code of Criminal
Procedure;
• That the Appellant clearly indicated that he understood his rights and
clearly expressed a desire to waive those rights;
• That Detective Campbell explicitly advised the Appellant that a
different officer would conduct the interview;
• That Detective Campbell read the Appellant his statutory warnings in
accordance with Article 38.22 of the Texas Code of Criminal
Procedure a second time;
• That the Appellant twice clearly indicated that he understood his
rights and twice indicated that he desired to waive those rights;
• That both sets of warnings administered by Detective Campbell were
electronically recorded in an audio format consistent with the
requirements of Article 38.22 of the Texas Code of Criminal
Procedure;
• That Sergeant Ward conducted his interview of the Appellant less
than an hour after the second set of warnings were administered;
• That Sergeant Ward’s entire interview was electronically recorded;
14
• That the Appellant’s interview was conducted in the same room where
he had been read his warnings;
• That Detective Campbell remained with the Appellant throughout his
contact with Sergeant Ward;
• That both the recording with the 38.22 warnings and the recording of
Sergeant Ward’s contact with the Appellant were part of the same
interview;
• That the Appellant demonstrated control of his mental and physical
faculties throughout the interview and demonstrated an understanding
of both his circumstances and the consequences of his decisions; and
• That the Appellant was not rendered incapable of making an
independent informed decision to confess ( I Supp. I C.R. at 5-8).
At trial, the Appellant requested certain redactions be made to both the first part of
the interview with Detective Campbell and the second part of the interview with
Sergeant Ward (III R.R. at 231-243). The trial court heard each objection and each
request for redaction from the Appellant (III R.R. at 231-243). Ultimately, the
State was ordered to make several redactions in favor of the Appellant (III R.R. at
231-243). Then, during Detective Campbell’s testimony, the State offered the
audio recording of Detective Campbell’s contact with the Appellant (IV R.R. at
124-126). The Appellant verified that the redactions had been made, asked the
court for a limiting instruction whereby the jury was directed not to speculate about
the nature of the redactions, and then asserted “No objection” to the admission of
that exhibit (IV R.R. at 124-126). Thereafter, during the testimony of Sergeant
Ward, the State offered the video recording of Sergeant Ward’s contact with the
Appellant (IV R.R. at 144). The Appellant stated “We have no objection. We
15
would just like the same limiting instruction from before regarding the redacted
portions” (IV R.R. at 146). As such, both recordings were admitted as redacted
without objection.
Waiver
The issue of whether an assertion of “no objection” will waive previously
preserved error is context dependent. Thomas v. State, 408 S.W.3d 877, 885 (Tex.
Crim. App. 2013). If the entirety of the record plainly demonstrates that the
Appellant did not intend to abandon his previously preserved claim and the trial
court did not construe his statement of “no objection” as an abandonment of that
claim, then the issue should not be considered waived (id.) However, if it cannot be
determined from the record whether abandonment was intended or construed, then
the statement of “no objection” should be construed in a manner consistent with
prior case law to affirmatively waive previously preserved claims of error (id.). In
those situations where it is not explicitly clear from the record, the statement of “no
objection” serves as an unequivocal indication that a waiver was both intended and
understood (id.).
In the present case there is nothing within the entirety of the record to
demonstrate that the Appellant did not intend to waive his previously preserved
claim of error regarding the admission of his recorded interview with Sergeant
16
Ward. The Appellant correctly asserts that defense counsel engaged in a vigorous
cross-examination of Sergeant Ward regarding the deficiencies in his investigation.
However, cross-examination regarding the deficiencies in an investigation can
hardly be held to plainly demonstrate that the Appellant did not intend to waive his
previously preserved claim of error. In fact, there is nothing at all in the record
that would in any way indicate that the Appellant did not intend to waive that
previously preserved error.
There is however, a very good reason evident within the record that the
Appellant would have chosen to waive his previously preserved error. Following
the pre-trial hearing on the Appellant’s motion to suppress, the trial court ordered
that the video recording of Sergeant Ward’s January 19, 2012 interview would be
redacted from the 26:03 mark forward (I Supp. I C.R. at 5-8). Thereafter, at trial,
the Appellant requested a multitude of redactions – most of which were contested
by the State – and nearly all of which the court ordered redacted in the Appellant’s
favor (III R.R. at 231-243). The exhibit that was offered at trial contained the
numerous redactions sought by the Appellant and ordered by the trial court (IV
R.R. at 144). When this exhibit was offered, the Appellant sought to ensure that
the redactions were properly made, requested that the jury be given a limiting
instruction ordering them not to speculate about the contents of redactions, and
unequivocally stated that there was no objection (IV R.R. at 146).
17
Our law directs us to conduct a context-dependent review of the
circumstances of cases in which the words “no objection” are uttered prior to the
admission of previously objected-to evidence. The particular context of this case is
such that, because of numerous defense-friendly redactions, the exhibit offered at
trial was very different from the exhibit objected to pre-trial. No objection was
made to the exhibit as redacted and the Appellant cannot plainly demonstrate from
the record that he did not intend to waive previously preserved error or that the trial
court did not construe counsel’s statements as a waiver of previously preserved
error.
Standard of Review
A trial court’s ruling on a motion to suppress is reviewed under an abuse of
discretion standard and the trial court’s ruling will not be disturbed so long as it is
within the zone of reasonable disagreement. Martinez v. State, 348 S.W.3d 919,
929 (Tex. Crim. App. 2011); Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App.
2010). In determining whether an abuse of discretion occurred, a bifurcated
standard is applied which gives almost total deference to a trial court’s
determination of facts and reviews de novo the trial court’s application of the law
to those facts. Wilson v. State, 311 S.W.3d 452, 457-58 (Tex. Crim. App. 2010).
Ultimately, if a trial court’s determination is supported by the record and correct
18
under any applicable theory of law, then the reviewing court will not disturb the
trial court’s ruling. Young v. State, 283 S.W.3d 854, 873 (Tex. Crim. App. 2009).
The court in this case denied the motion to suppress in part, eventually ordering
multiple redactions in the Appellant’s favor, before ruling the evidence admissible
under Article 38.22 of the Texas Code of Criminal Procedure. The trial court’s
decision was supported by the record and correct as a matter of law.
Authorities Regarding 38.22
Article 38.22 of the Texas Code of Criminal Procedure governs the use of an
oral statement made by a defendant during the course of a custodial interrogation.
TEX. CRIM. PROC. CODE art. 38.22. This article requires that, in order for such
a statement to be admissible against a defendant, both the requisite statutory
warnings and the defendant’s statement itself must be electronically recorded (id.).
There is no requirement that the warnings and the defendant’s statement must be
on the same recording. In fact, our law recognizes that there are many situations in
which warnings are given, a break ensues, and then questioning resumes without
new warnings. Hayes v. State, 05-11-00260-CR, 2013 WL 1614108 (Tex. App.—
Dallas Feb. 19, 2013, no pet.) (not designated for publication). In these situations,
if the totality of the circumstances indicates that the second interview is essentially
a continuation of the first interview, then the warnings previously given remain
19
effective during the second phase of that same interview. Id. In 2005, the court
rendered an opinion in Bible v. State which set out four factors to consider when
determining whether or not separate sessions constitute a single, continuing
interview. 162 S.W.3d 234, 242 (Tex. Crim. App. 2005). The four factors set out
in Bible were 1) the passage of time, 2) whether the second session was conducted
by a different person, 3) whether the second session related to a different offense,
and 4) whether the officer asked if the defendant remembered the prior warnings
and still wished to waive his rights. Id. In applying this four-part test, the court in
Bible explicitly referenced the cases of Franks v. State (1986) and Ex Parte Bagley
(1974) as relevant guides. Id.
In the Franks case, the suspect was read his warnings and subjected to
custodial interrogation at approximately 11:50 a.m. Franks v. State, 712 S.W.2d
858, 860-61 (Tex. App.—Houston, 1986, pet ref’d). Officers left, continued their
investigation by interviewing several other witnesses, and then returned around
4:00 p.m. to re-interview the suspect. Id. When they returned at 4:00 p.m. a
different officer asked the defendant if he remembered his rights and then
questioned the defendant without providing new warnings. Id. The court found that
– despite a break of more than four hours and a change in officers conducting the
interview – both of these sessions constituted a single interview and that there was
no need for a second set of warnings. Id. In the Bagley case, the defendant gave a
20
written confession after being fully warned of his rights. Ex Parte Bagley, 509
S.W.2d 332, 335 (Tex. Crim. App. 1974). Six to eight hours later officers returned
and re-interviewed the defendant. Id. Although the warnings were re-read to the
defendant prior to the second session, the court found that fact immaterial because
the statement was already fully admissible based on the warnings given six to eight
hours earlier during this single interrupted interview. Id. at 337.
In the Bible case an even more egregious fact scenario still supported
admission of the statement. Bible 162 S.W.3d at 238. The facts in Bible indicated
that a detective in Louisiana met with a suspect who was in custody in Baton
Rouge. Id. During the first session with the defendant, the Louisiana detective read
the defendant his rights and interviewed him concerning a murder that had
occurred in Louisiana. Id. Approximately three hours after that interview, the
detective returned with a Louisiana State Trooper. Id. The Trooper asked the
defendant if he remembered his rights and still wanted to talk to the officers. Id.
The defendant answered in the affirmative and the Trooper proceeded to question
him regarding a series of murders that had occurred in Palo Pinto County, Texas.
Id. Despite the fact that the interviews were separated by approximately three
hours, conducted by different officers, and focused on different offenses, the court
held that both sessions still constituted a single interview. Id. at 241. The Bible
case is the primary authority on what factors should be considered in determining
21
whether two interview sessions constitute a single interview and serves as a useful
example for applying those factors.
Argument Regarding the Bible Factors
In the case at bar, the Appellant was taken to an interview room where he
was read his rights twice by Detective Campbell. Thereafter, Detective Campbell
does not question the Appellant, but explicitly tells the Appellant that they are
waiting on another officer who is en route to conduct the interview. Sergeant Ward
arrived less than an hour after Detective Campbell finished reading the Appellant
his rights for the second time and started the interview. Detective Campbell
remained in the room with both the Appellant and Sergeant Ward while the
Appellant was questioned about the murder of Thomas Kitto.
With regard to the first Bible factor, less than an hour elapsed between the
end of the warnings and the start of Sergeant Ward’s interview with the Appellant.
This factor weighs heavily in the State’s favor in light of cases such as Bible
(where there was a three-hour break in the questioning) or Bagley (where there was
a six- to eight-hour break in questioning). Bible, 162 S.W.3d at 237; Bagley, 509
S.W.2d at 333. The Appellant would urge the Court to consider this break of
under an hour to be an inordinate amount of time because of the Appellant’s
purported state of intoxication. This argument has no basis in either fact or law.
22
From a purely factual perspective, the Appellant did admit to consuming
alcohol on the night in question. However, Sergeant Ward described the Appellant
as a functional alcoholic whom he had never seen completely sober (I Supp. II
R.R. at 43). Ultimately, neither Detective Campbell nor Sergeant Ward had any
real reservations about the Appellant’s ability to freely and voluntarily waive his
rights and give a statement (I Supp. II R.R. at 32 and I Supp. II R.R. at 43). The
trial court agreed and rendered explicit written findings of fact holding that 1) the
Appellant displayed the ability to discuss multiple different subjects and past
events during his contact with the officers; 2) the Appellant demonstrated control
over his mental and physical faculties throughout his contact with the officers; 3)
the Appellant demonstrated an understanding of his circumstances and the
consequences of his actions throughout the duration of his contact with officers,
even at one point reasoning aloud that it would be better for his case to give a
statement; and 4) the Appellant was not rendered incapable of making an
independent, informed decision to confess during his contact with officers (I Supp.
I C.R. at 5-8).
There was nothing about the Appellant’s state of mind that should be
construed to inflate the period of time between the two sessions to such a degree
that these sessions constituted two separate interviews. The delay was far less than
23
that seen in Bible, Bagley, and many other cases. Therefore, the first Bible factor is
squarely in the State’s favor.
With regard to the second factor, whether the subsequent interview was
conducted by a different officer, the State would contend that this factor also
weighs in the State’s favor because the Appellant was not actually interviewed by
Detective Campbell. The audiotape recording and Detective Campbell’s testimony
indicate that he did nothing more than read the Appellant his rights, inform the
Appellant that a different officer was en route to question the Appellant, and then
“babysit” the Appellant for almost an hour until Sergeant Ward arrived. As such,
Detective Campbell did not interview the Appellant for the purposes of Article
38.22. Therefore the second Bible factor should weigh in the State’s favor, as
Sergeant Ward was the only officer to conduct a custodial interrogation of the
Appellant. If, however, the Court were to determine that Detective Campbell did
question the Appellant for the purposes of Article 38.22 and that Sergeant Ward
represented a second, different interviewer, then the State would argue that this
factor should be minimized in the evaluation of the Bible factors. The overarching
question is whether the totality of the circumstances indicates that these two
sessions were a single interview. Detective Campbell clearly communicated to the
Appellant that they were waiting for another officer who would conduct the
interview, and as such, the change in officers questioning the Appellant would be
24
minimal because that change was anticipated and communicated to the Appellant,
and Detective Campbell remained in the room during the questioning by Sergeant
Ward.
The third Bible factor would focus the court’s attention to whether a
different offense was the subject of the subsequent interrogation. With regard to
this factor, the State would first advance the same argument that was expressed
with regard to the second Bible factor. During Detective Campbell’s time with the
Appellant, Detective Campbell made small talk and asked the Appellant what he
had been up to. The Appellant then guided the conversation towards the offenses
of evading arrest and driving while intoxicated. Although Detective Campbell does
advance some follow-up questions, there is no real interrogation as to those
offenses. Furthermore, the entirety of that conversation is framed within the
context of the Appellant being told that another officer is on his way to conduct the
actual interview. There is only one offense about which the Appellant was actually
questioned – the murder offense that was the subject of Sergeant Ward’s
questioning. If, however, the Court determines that the conversation between
Detective Campbell and the Appellant did constitute questioning regarding a
different offense, the State would argue that this factor should be minimized in the
Court’s evaluation of the Bible factors, because that questioning occurred only
25
within the context of small talk carried out while waiting for another officer to
arrive and conduct a full interview.
In the fourth Bible factor, the Court must examine whether the Appellant
was reminded of his rights and whether he was asked if he still wished to give a
voluntary statement. The evidence in this case indicates that Sergeant Ward did not
remind the Appellant of his rights and did not ask him if he still wanted to waive
those rights whenever he arrived to interview the Appellant. However, in this
particular case, a reminder should not be necessary because the Appellant, at the
time of his warnings, was explicitly told by Detective Campbell that a second
officer would arrive later and conduct his interview. After being so informed, the
Appellant indicated he was okay with a different officer conducting the interview
and that he wished to give a statement. The Appellant had actual notice from
Detective Campbell at the time the warnings were read to him that those warnings
would apply to the upcoming interview to be conducted when Sergeant Ward
arrived. At the time of those warnings, the Appellant explicitly agreed to give a
statement in that very manner. Therefore, there should not be any need for a
reminder, because the warnings were read to the Appellant in anticipation of a
different officer conducting the questioning.
The ultimate question in applying these Bible factors is whether the totality
of the circumstances indicated that the two sessions were two separate interviews
26
or one continuous interview. In the present case, an inmate was read his warnings
by one officer who explicitly told that inmate that those warnings were to apply to
an interview which would be conducted by a different officer who was already on
his way and who did arrive to perform the interview in less than an hour. When
the Appellant agreed to waive those warnings, he did so under those circumstances
and in anticipation of a different officer conducting the interview. The totality of
the circumstances clearly indicates that both sessions were part of one single,
continuing interview; the necessary warnings under §38.22 of the Texas Code of
Criminal Procedure were properly read and recorded and the video recording of the
interview was properly admitted into evidence.
STATE’S RESPONSE TO APPELLANT’S SECOND POINT OF ERROR
Summary of the Argument
In his second point of error, Appellant argues that the trial court abused its
discretion by admitting video recorded statement to Sergeant Ward from January
19, 2012. Appellant’s Brief at 2. The Appellant argues that the statement was
obtained only after the Appellant attempted to terminate the interview and invoke
his right to remain silent. Id. at 13. In advancing this argument, the Appellant
points to five isolated statements without any context for the surrounding
27
conversation and fails to refute the plain waiver of the issue that occurred when
State’s Exhibit 73 was offered at trial. Id. at 17.
Facts Pertinent to Invocation of Right to Remain Silent
Prior to his interview on the evening of January 19, 2012, the Appellant was
twice read his 38.22 warnings and was explicitly told that a second officer was on
his way to question the Appellant (VIII R.R. State’s Ex. 72). The Appellant
indicated that he understood and that he did want to give a statement because “it
would be better for my case” (VIII R.R. State’s Ex. 72). When Sergeant Ward
arrived, he verified with Detective Campbell that the Appellant had been read the
necessary warnings and that the Appellant desired to give a statement (I Supp. II
R.R. at 44). Sergeant Ward then entered the room and began his interview of the
Appellant (id.). Sergeant Ward’s interview of the Appellant lasted approximately
35 minutes (I Supp. I C.R. at 5-8).
A pre-trial hearing was held on February 18, 2014, regarding the Appellant’s
motion to suppress the video recorded statement from January 19, 2012 (I Supp. II
R.R. at 1). During the course of this hearing, the Appellant moved to suppress the
State’s evidence for multiple grounds, including invocation of his right to remain
silent (id. at 56). The court, having viewed the entirety of the video and heard
testimony from both Sergeant Ward and Detective Campbell, requested that each
28
party brief the issue of invocation of the right to remain silent (id.). The Appellant
submitted a brief regarding the Appellant’s purported invocation of his right to
remain silent (I C.R. at 47-53). In the Appellant’s brief, the Appellant points to
four specific instances where he made statements that he contended were efforts to
invoke his right to remain silent (I C.R. at 47-53). The Appellant then quotes a
fifth instance, wherein the Appellant stated “Quit talking to me. Take me to jail”
and concedes that the first four statements may have some degree of ambiguity, but
asserts that the final statement quoted was an unambiguous invocation (I C.R. 47-
53). Ultimately, the court agreed with the Appellant regarding that final statement
at issue (I Supp. I C.R. at 5-8). Following that hearing, the court entered written
findings of fact and conclusions of law, denying in part and granting in part the
Appellant’s motion to suppress (id.). Specifically, the court agreed with Appellant
and found that the statement “Quit talking to me. Take me to jail” constituted an
invocation of the Appellant’s right to remain silent (id.). As such, the court ruled
that the remaining nine minutes that followed after the invocation of his right to
remain silent would be inadmissible (id.).
At trial, the Appellant requested certain redactions be made to both the first
part of the interview with Detective Campbell and the second part of the interview
with Sergeant Ward (III R.R. at 231-243). The trial court heard each objection and
each request for redaction from the Appellant (id.). The State was ordered to make
29
several redactions in favor of the Appellant (id.). Thereafter, the State agreed to
additional requested redactions and ultimately offered a severely redacted version
of the interview into evidence at trial (IV R.R. 124-126). This exhibit as redacted
ended prior to the Appellant’s invocation of his right to remain silent as ordered by
the trial court in the pre-trial hearing. Whenever this severely redacted version of
the interview was offered into evidence, the Appellant stated “We have no
objection. We would just like the same limiting instruction from before regarding
the redacted portions” (IV R.R. at 146). The redacted exhibit was then admitted
without objection (id.).
Waiver
Again, the issue of whether an assertion of “no objection” will waive
previously preserved error is context dependent. Thomas, 408 S.W.3d at 885. If
the entirety of the record plainly demonstrates that the Appellant did not intend to
abandon his previously preserved claim and the trial court did not construe his
statement of “no objection” as an abandonment of that claim, then the issue should
not be considered waived. Id. However, if it cannot be determined from the record
whether abandonment was intended or construed, then the statement of “no
objection” should be construed in a manner consistent with prior case law to
affirmatively waive previously preserved claims of error. Id. In those situations
30
where it is not explicitly clear from the record, the statement of “no objection”
serves as an unequivocal indication that a waiver was both intended and
understood. Id.
The record is devoid of anything that would indicate the Appellant did not
intend to waive his previously preserved claim of error regarding the interview by
Sergeant Ward. To the contrary, it is evident from the record that the Appellant
did intend to waive his objection. The exhibit offered at trial was very different
from the exhibit debated in the pre-trial hearing on the Appellant’s motion to
suppress. At the court’s order the State redacted a vast portion of the exhibit.
When this new, redacted version of the video was introduced, the Appellant sought
to ensure that the redactions were properly made, requested that the jury be given a
limiting instruction ordering them not to speculate about the contents of redactions,
and unequivocally stated that there was no objection (IV R.R. at 146).
Our law directs us to conduct a context dependent review of the
circumstances of cases in which the words “no objection” are uttered prior to the
admission of previously objected to evidence. The particular context of this case is
such that, because of numerous defense-friendly redactions, the exhibit offered at
trial was very different from the exhibit objected to pre-trial. No objection was
made to the exhibit as redacted and the Appellant cannot plainly demonstrate from
the record that he did not intend to waive previously preserved error or that the trial
31
court did not construe counsel’s statements as a waiver of previously preserved
error.
Standard of Review
A court’s ruling on a motion to suppress is reviewed under an abuse of
discretion standard; the trial court’s ruling is not to be disturbed so long as it is
within the zone of reasonable disagreement. Martinez, 348 S.W.3d at 929; Crain,
315 S.W.3d at 48. In determining whether an abuse of discretion occurred, a
bifurcated standard is applied which gives almost total deference to a trial court’s
determination of facts and reviews de novo the trial court’s application of the law
to those facts. Wilson, 311 S.W.3d at 457-58. If a trial court’s determination is
supported by the record and correct under any applicable theory of law, then the
reviewing court will not disturb the trial court’s ruling. Young, 283 S.W.3d at 873.
The trial court in this case made a finding that the Appellant asserted his right to
remain silent at a particular point in the video recorded interview and entered an
order denying admission of any portion of the interview that occurred after that
invocation. The trial court’s factual findings were supported by the evidence and
the conclusions of law reached by the trial court were correct.
32
Authorities Regarding Invocation of the Right to Remain Silent
The precedent established by Miranda v. Arizona and the warnings set out in
Article 38.22 of the Texas Code of Criminal Procedure provide that a suspect may
cut off questioning and invoke his right to remain silent. TEX. CRIM. PROC.
CODE art. 38.22; 384 U.S. 436, 474 (1966). An officer is expected to cut off
questioning whenever a suspect unambiguously invokes his right to remain silent.
Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008). A suspect’s
invocation of his right to remain silent is unambiguous whenever the statement is
not subject to more than one reasonable interpretation under the circumstances.
Dowthitt v. State, 931 S.W.3d 244, 257 (Tex. Crim. App. 1996). The United States
Supreme Court and the Texas Court of Criminal Appeals have recognized that
whenever a suspect makes a statement that is in some way ambiguous or
equivocal, officers may – but are not required to – question the suspect to clarify
his intention. Davis v. U.S., 512 U.S. 452, 458 (1995); Marshall v. State 210
S.W.3d 618, 682 (Tex. Crim. App. 2006). An individual being questioned may
waive his right to remain silent either expressly or implicitly by his conduct.
Berghuis v. Thompkins, 560 U.S. 370, 380-81 (2010). Following a declaration of a
desire to terminate questioning, an officer may not continue questioning the
suspect until the officer “succeeds in persuading the suspect to change his mind
33
and talk.” Kupferer v. State 408 S.W.3d 485, 489 (Tex.App. – Houston 2013, pet.
ref’d) (citing Dowthitt, 931 S.W.3d at 257).
Argument Regarding Invocation of the Right to Remain Silent
The statements made by the Appellant during the course of his interview
with Sergeant Ward were ambiguous and fall well short of the clarity needed for a
suspect to invoke his right to remain silent. State’s Exhibit 73, which was admitted
at trial in a severely redacted form with objection from the defense, contained the
interview of the Appellant that Sergeant Ward conducted on the night of January
19, 2012 (VIII R.R. State’s Ex. 73).
The interview that was conducted on the evening of January 19, 2012 started
off with the Appellant lying to Sergeant Ward multiple times about his
whereabouts on the evening in question (id.). About twenty minutes into State’s
Exhibit 73, Sergeant Ward confronts the Appellant directly about his repeated lies
(id.). In response to that confrontation, the Appellant exclaims, “You’re right. I’m
done” (id.). In the context of the conversation, this statement seemed to indicate
that the Appellant was done lying to Sergeant Ward about the events of the
evening, not that the Appellant wished to terminate the interview. This statement
is at best ambiguous and certainly contains insufficient clarity to be considered an
invocation of the Appellant’s right to remain silent. That ambiguity is heightened
34
by the Appellant’s conduct after making that statement. Following his exclamation
that he is done, the Appellant begins to re-describe the events of that evening and
endeavors to explain his side of the story (id.). The Appellant’s fresh account ends
with him stating “And now you’re going to charge me with Aggravated Assault”
(id.). Sergeant Ward then informs the Appellant that his victim has died (id.). The
Appellant has a rather intense reaction to learning that the Appellant has died and
becomes visibly upset (id.). While trying to comprehend this new information, the
following exchange occurs between Sergeant Ward and the Appellant:
Appellant: Just take me to my cell, man. (1:34)
Sergeant: Let’s talk about it for a minute man. (1:35)
Appellant: No. I’m not telling you nothing more. (1:36)
Appellant: I didn’t know the man was dead. (1:38)
Appellant: What the fuck man. (1:39)
(VIII R.R. State’s Ex. 73 – time stamps are based on State’s Ex. 73 as submitted in
VIII R.R. State’s Ex. 73, not as the exhibit was played for the jury).
For the next fifteen seconds, the Appellant wrestled with the news that the
victim had died (id.). Despite asking to be taken back to his cell, the Appellant
kept talking (id.). Rather than question or interrupt the Appellant, Sergeant Ward
gave him time to think about his situation (id.). The Appellant appeared to desire
to speak further and after a moment, without solicitation, the Appellant continued:
Appellant: Man. (1:54)
Appellant: Fuck dude. (1:55)
Appellant: Nu uh dude, he ain’t dead. (2:04)
35
Sergeant: Ya Eric, he is. (2:06)
Appellant: Really? (2:07)
Sergeant: Ya Eric. You know that guy? (2:09)
Appellant: I never met the motherfucker in my life. Dude, I don’t know
who that fucking dude was. (2:12)
(VIII R.R. State’s Ex. 73 – time stamps are based on State’s Ex. 73 as submitted in
VIII R.R. State’s Ex. 73, not as the exhibit was played for the jury). Then the
Appellant, without solicitation from Sergeant Ward, described a fresh account of
the events that lead to the death of Thomas Kitto (id.).
After the Appellant finishes explaining this account, Sergeant Ward begins
to question the Appellant about the knife he carried and the shirt he wore (id.).
When Sergeant Ward approached that topic, the Appellant responded as follows:
Sergeant: Okay, you told me you had a black shirt on and some blue
jeans. (2:53)
Appellant: I’m done. (2:54)
Sergeant: Let’s, let’s talk about something other than that. Let’s talk
about what you had on. (2:59)
Appellant: I don’t know. (3:01) (almost inaudible)
Sergeant: Ok. When you left there, where did you go. (3:05)
Appellant: Home. (3:06)
(VIII R.R. State’s Ex. 73 – time stamps are based on State’s Ex. 73 as submitted in
VIII R.R. State’s Ex. 73, not as the exhibit was played for the jury).
As the conversation continues, the Appellant and Sergeant Ward discuss the
Appellant’s actions after leaving the Canyon Falls RV Park and the disposition of
the knife used to kill Thomas Kitto (id.). A few minutes later, at approximately
36
5:08 on State’s trial exhibit 73 as submitted to the court, the Appellant says “Don’t
talk to me, just take me to my cell now” (id.). Thereafter, Sergeant Ward attempts
to clarify whether the Appellant really wants to discontinue the interview, before
ultimately continuing to discuss the incident openly (id.). Following the Pre-trial
hearing on the Appellant’s Motion to Suppress, the trial court judge ultimately
ruled that the Appellant invoked his right to remain silent with the statement
described at 5:08 on State’s trial exhibit 73 as submitted to the court and
determined that everything after that point was inadmissible (I Supp. I C.R. at 5-8).
As such, nothing beyond the invocation at 5:08 on State’s Trial exhibit 73 as
submitted to the court was played for the jury (VIII R.R. State’s Ex. 73).
The Appellant cites to three specific statements within State’s trial exhibit 73
that he contends represent an invocation of the right to remain silent. Appellant’s
Brief at 26. These specific statements and the contextual conversation are outlined
above from 1:34 to 1:39, 2:53 to 3:06, and at 5:08 on State’s trial exhibit 73 as the
exhibit was submitted to the court, but not as it was played to the jury (VIII R.R.
State’s Ex. 73). As the trial court agreed with the Appellant regarding the
statement made at 5:08, no further analysis is warranted. With respect to the other
two statements, the context of each of those conversations indicates assertions that
are ambiguous at best. Therefore the trial court committed no error in admitting
State’s trial exhibit 73 without objection.
37
Regarding the conversation that occurred, as submitted to the court, from
1:34 to 1:39, the Appellant stated that he wanted to be taken to his cell and that he
did not wish to say anything further. However, he then continued speaking to
Sergeant Ward without prompting or solicitation. The Appellant actually continues
the conversation by questioning Sergeant Ward regarding his victim’s fate. The
conduct of the Appellant after making his statement, particularly the Appellant’s
unsolicited questioning of the Sergeant, makes for extremely important contextual
evidence which aids in the evaluation of the Appellant’s actual desire to continue
the interview. When viewed in proper context, it appears quite clear that the
Appellant desired to continue speaking with Sergeant Ward and that he continued
the interview to both ascertain his victim’s fate and provide his version of the
events. There is no invocation such that the remainder of the interview should be
held inadmissible.
A similar analysis is appropriate for the portion of the conversation that
occurred from 2:53 to 3:06 as submitted to the court on State’s Trial exhibit 73.
During this exchange, Sergeant Ward attempts to turn the conversation towards the
disposition of the knife used in the killing of Thomas Kitto and the shirt that the
Appellant was wearing at the time. The Appellant becomes guarded and tells
Sergeant Ward that he is “done,” at which point Sergeant Ward redirects the
conversation to a different area of discussion. The Appellant then engages with
38
Sergeant Ward in discussing where he went after the incident and eventually
discloses that he threw the knife used to kill Thomas Kitto into Sorrell Creek (id.).
The totality of the circumstances indicates that Sergeant Ward took the Appellant’s
statements to mean that he was done discussing the knife and his clothing. This
statement caused Sergeant Ward to redirect towards another area of discussion.
The Appellant engages with Sergeant Ward in that discussion, indicating that
Sergeant Ward correctly apprised the situation and the Appellant’s desire to talk
about something else. At no point did the Appellant unambiguously invoke his
right to remain silent. The trial court did not error in admitting State’s trial exhibit
73 as redacted and without objection.
STATE’S RESPONSE TO APPELLANT’S THIRD POINT OF ERROR
Summary of the Argument
In his third point of error, Appellant argues that the evidence produced at
trial was insufficient to prove that the Appellant tampered with physical evidence
with knowledge that an investigation was pending or in progress, or that an offense
had been committed. Appellant’s Brief at 28. In advancing this point, the
Appellant asserts that the evidence is insufficient to prove that, at the time he
tampered with the knife, he knew an investigation was pending or in progress or
that a crime had been committed. Appellant’s Brief at 29-31. However, this
39
assertion ignores a great wealth of evidence from the scene of the crime, the
Appellant’s encounter with law enforcement after the slaying, and the Appellant’s
statement to law enforcement which demonstrated that the Appellant did possess
the requisite culpable mental state when he disposed of the knife used to kill
Thomas Kitto.
Facts Relevant to Legal Sufficiency
As the parties chased a dog around the campground, Ms. Hebert looked
towards the Appellant and saw him pull a fixed-blade knife from his hip (III R.R.
at 66-71). Ms. Hebert turned her back to put up the dog, but when she turned
around, she saw that Mr. Kitto had suffered a serious stab wound (id. at 72). As
the Appellant scrambled to his feet, he struggled to pick up something that he had
dropped (id. at 70-72). Once on his feet, the Appellant went to his car and took
off, turning into the main area of the campground (id. at 74). The Appellant then
turned around inside the park and returned in front of the cabins to exit out onto the
highway (id.). As the Appellant passed the cabins to reach the highway, multiple
bystanders tried to flag the Appellant down and get him to stop, however, the
Appellant continued onto the highway and left the scene (id. at 75).
Deputies with the Comal County Sheriff’s office responded, secured the
scene, and began taking statements (id. at 174). On the ground near the body of
40
Mr. Kitto, deputies found a baseball cap and the sheath for a fixed-blade knife (id.
at 186-189). Later that evening, Deputy Koepp found the Appellant driving a
green pickup truck near his residence (IV R.R. at 86). Deputy Koepp initiated a
traffic stop and the vehicle eventually came to a stop in a nearby driveway (id. at
88). Deputy Koepp ordered the Appellant to place his hands on the squad car (id.
at 89). The Appellant appeared compliant with the deputy’s commands and
walked towards the squad car with his hands in the air; however, when Deputy
Koepp lowered his taser and reached for his handcuffs, the Appellant exclaimed
“Fuck that. I’m not going back” and tried to run away (id.). Deputy Koepp
pursued the Appellant, tackled him in the road, and dragged him back to the squad
car where he was secured in hand cuffs (id. at 89-91).
Sergeant Ward interviewed the Appellant about the death of Mr. Kitto (III
R.R. at 50). During the course of this interview, the Appellant admits to stabbing
Mr. Kitto with a knife that the Appellant kept in a sheath in his back pocket (VIII
R.R. State’s Ex. 73). The Appellant characterizes his actions as “the wrong thing
to do,” states that he “feels like there was some fault there,” and surmises that the
Sheriff’s Office now has him for “aggravated assault” (id.). The Appellant further
stated during the interview that he lost the sheath to the knife, that the sheath he
lost did not actually belong to the knife he used to kill Mr. Kitto, and that he threw
the knife into Sorrell Creek (id.). Based on the assertions made during the
41
interview with the Appellant, Sergeant Ward secured a search warrant for the
Appellant’s residence and sent multiple deputies to search Sorrell Creek for the
knife used in the assault (IV R.R. at 148-49). Deputies were not able to locate the
knife in Sorrell Creek (id. at 149). Although the knife used in the assault was
never located, both the baseball cap and the knife sheath found at the scene were
sent to the DPS lab for testing which confirmed that the Appellant’s DNA was on
both items (id.).
Authorities on Legal Sufficiency
After the decision of the Court of Criminal Appeals in Brooks v. State, Texas
appellate courts review legal and factual sufficiency challenges in criminal cases
using the same legal sufficiency standard of review. Kiffe v. State, 361 S.W.3d 104,
107 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Evidence is only
insufficient if, when considering all the evidence in the light most favorable to the
verdict, “no rational factfinder could have found each essential element of the
charged offense beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)). While viewing the evidence in the light most favorable to
the verdict, evidence can be insufficient in two circumstances: when the record
contains “no evidence, or merely a ‘modicum’ of evidence, probative of an
element of the offense” or when “the evidence conclusively establishes a
42
reasonable doubt.” Id. The evidence may also be insufficient when the acts alleged
do not constitute the offense charged (Id. at 108).
Legal sufficiency review “gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443
U.S. at 319. Reviewing courts determine whether the necessary inferences are
reasonable based on the “combined and cumulative force of the evidence when
viewed in the light most favorable to the verdict.” Kiffe, 361 S.W.3d at 108.
Courts will treat direct and circumstantial evidence equally (Id.).
“Circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”
(Id.). Appellate courts will presume that the factfinder “resolved any conflicting
inferences in favor of the verdict” and defer to that resolution (Id.). The reviewing
courts will also defer to “the factfinder’s evaluation of the credibility and the
weight of the evidence.” (Id.). The factfinder is entitled to accept some testimony
and reject other testimony, in whole or in part. Margraves v. State, 34 S.W.3d 912,
919 (Tex. Crim. App. 2000), abrogated on other grounds by Laster v. State, 275
S.W.3d 512 (Tex. Crim. App. 2009). In reviewing the sufficiency of the evidence:
Each fact need not point directly and independently to the guilt of the
appellant, as long as the cumulative effect of all the incriminating
43
facts are sufficient to support the conviction. Motive is a significant
circumstance indicating guilt. Intent may also be inferred from
circumstantial evidence such as acts, words, and the conduct of the
appellant.
Guevara v. State, 152 S.W.3d 45, 49-50 (Tex. Crim. App. 2004) (internal citations
omitted).
Argument on Legal Sufficiency
The Texas penal code provides multiple different means by which one may
commit the offense of tampering with physical evidence. Section 37.09(a)(1)
states that a person commits the offense of tampering with physical evidence if,
knowing that an investigation or official proceeding is pending or in progress, he
alters, destroys or conceals any record, document, or thing with intent to impair its
verity, legibility, or availability as evidence in the investigation or official
proceeding. TEX. PENAL CODE ANN. §37.09. The manner of tampering with
physical evidence set out in 37.09(a)(1) is charged by Count II Paragraph A of the
indictment in this cause (I C.R. 8-9).
Section 37.09(d)(1) states that a person commits the offense of tampering
with physical evidence if the person, knowing that an offense has been committed
alters, destroys, or conceals any record, document, or thing, with intent to impair
its verity, legibility, or availability as evidence in any subsequent investigation of
44
or official proceeding related to the offense. TEX. PENAL CODE ANN. §37.09.
The manner of tampering with physical evidence set out in 37.09(d)(1) is charged
by Count II Paragraph B of the indictment in this cause (Id.).
Each of these two manners of committing tampering with physical evidence
were correctly indicted in this cause, and both manners were correctly submitted in
the alternative to the jury in the charge of the court. Neither § 37.09(a)(1) nor
§ 37.09(d)(1) requires the State to prove the commission of some specific
underlying criminal offense. TEX. PENAL CODE ANN. § 37.09.
Section 37.09(a)(1) of the Texas Penal Code requires that an investigation or
official proceeding be pending or in progress, but does not require that
investigation or proceeding to result in criminal charges or a conviction for a
criminal offense. TEX. PENAL CODE ANN. §37.09. The term “pending” has a
unique usage in this statute suggesting the proper meaning as “impending” or
“about to take place.” Lumpkin v. State, 129 S.W.3d 659, 663 (Tex.App. – Houston
[1st Dist] 2004, pet. ref’d). Pursuant to that interpretation, there are a variety of
scenarios wherein an individual may be said to know that an investigation or
official proceeding is pending. This is especially true whenever someone has died
as a result of the defendant’s actions. The Third Court of Appeals recently took up
such a case and determined that a defendant who concealed a corpse was
“…certainly aware that the victim had died and that an investigation into her
45
disappearance was impending or about to take place.” Briscoe v. State, 03-11-
00014-CR, 2013 WL 4822878, at *6-7 (Tex. App.—Austin Aug. 29, 2013, no pet.)
(not designated for publication). In that particular case, a man had hired a prostitute
to come to his home, choked her, and buried her body in a remote location. Id.
Although that particular defendant was convicted of both murder and tampering
with physical evidence, the evidence produced at trial indicated that the victim may
have actually died from the ingestion of cocaine rather than the defendant’s
actions. Id. In determining whether there was legal sufficiency to sustain the
conviction for tampering with physical evidence, the court conducted a separate
evaluation of the tampering with physical evidence charge and concluded that the
defendant did commit the act of tampering while knowing that an investigation
was pending. Id.
When this theory is applied to the Appellant’s case, it is clear that he knew
someone had been stabbed as a result of his actions. From that, the Appellant
would necessarily have known that an investigation into that stabbing would
certainly take place; he therefore knew an investigation was impending or about to
take place, as in Briscoe. See id. Beyond that, the evidence produced at trial during
Ms. Hebert’s testimony was that bystanders tried to flag the Appellant down and
get him to stop as he left the campground. Furthermore, during his apprehension
as the officer reached for his handcuffs, the Appellant fled arrest on foot, saying
46
“Fuck that. I’m not going back.” This conduct occurred after Deputy Koepp had
no more than pulled him over and asked him to put his hands on the hood of his
car. Further, during his subsequent interview, Appellant lied to Sergeant Ward
multiple times about where he had been that evening – eventually admitting that he
had “poked” the victim and stating that he committed aggravated assault – before
ultimately telling Sergeant Ward that he had thrown the knife into Sorrell Creek.
The conduct of fleeing the scene as bystanders tried to flag him down, running
from Deputy Koepp when he was pulled over, lying about going to the Canyon
Falls RV Park and telling Sergeant Ward that he used the knife to stab the victim
are all items of evidence that tend to indicate the Appellant knew an investigation
into his stabbing of Thomas Kitto was pending or in progress.
Section 37.09(d)(1) does require the existence of some criminal offense,
however, the State is not required to prove what criminal offense had been
committed. TEX. PENAL CODE ANN. § 37.09. As such, the jury was required to
find that the Appellant had committed some offense, but not necessarily the
offense of murder. Conceivably, the jury could have concluded that the Appellant
had committed the offense of manslaughter, assault with a deadly weapon, or even
simple assault, any of which would have allowed for a conviction on tampering
with physical evidence in the absence of guilty on the charge of murder. The only
requirement is that the jury believe the Appellant, knowing that an offense had
47
been committed, acted to destroy, alter, or conceal a knife to impair its verity,
legibility, or availability as evidence in subsequent investigations or proceedings.
In this particular case, the Appellant went so far as to tell Sergeant Ward that he
had committed Aggravated Assault, that “he did not think it was the right thing to
do,” and that “there was some fault there” (VIII R.R. State’s Ex. 73).
The fact that the Appellant was found “Not Guilty” of the offense of murder
does not mean that no criminal offense had been committed. This type of argument
would focus on the phenomenon of inconsistent verdicts. Writing the opinion for
the Court in Dunn v. United States, Justice Holmes stated “Consistency in the
verdict is not necessary.” 284 U.S. 390, 393 (1932). Justice Holmes then quoted
from the 2nd Circuit:
The most that can be said in such cases is that the verdict shows that either
in the acquittal or the conviction the jury did not speak their real
conclusions, but that does not show that they were not convinced of the
defendant’s guilt. We interpret the acquittal as no more than their
assumption of a power which they had no right to exercise, but to which they
were disposed through lenity.
Id. (quoting from Steckler v. United Sates, 7 F2d 59, 60 (2d Cir. 1925)). Justice
Holmes concluded by writing, “That the verdict may have been the result of
compromise, or of a mistake on the part of the jury, is possible. But verdicts
cannot be upset by speculation or inquiry into such matters.” Id. at 394. It is no
more likely that the jury erred in convicting the Appellant of tampering with
48
physical evidence than it is that the jury erred by failing to convict the Appellant of
murder. The reason why the jury rejected one theory of the crime while embracing
another is unclear. The jury’s decision may have been the result of a mistake, or
simply an improper exercise of leniency. However, speculation on or inquiry into
the jury’s motives is improper.
Evidence was presented which would fully satisfy the required elements of
either manner of commission of tampering with physical evidence and the jury was
able to find guilt beyond a reasonable doubt. When someone leaves a body laying
on the ground with multiple stab wounds, flees as bystanders try to stop him, flees
as a police officer tries to apprehend him, and disposes of the knife used in what
the Appellant himself believed to be an aggravated assault, there is ample evidence
on which to base a verdict that the Appellant acted knowing that an investigation
was pending or in progress, or knowing that a crime had been committed.
STATE’S RESPONSE TO APPELLANT’S FOURTH POINT OF ERROR
Summary of the Argument
In his fourth point of error, Appellant argues that the State failed to produce
independent evidence to corroborate the Appellant’s extrajudicial statement
regarding that he tampered with the knife used to kill Thomas Kitto by throwing it
49
in a creek. Appellant’s Brief at 32. The Appellant’s approach, that the State
should be required to produce corroboration that the Appellant tampered with a
knife by throwing it in a creek, is far narrower than what is actually required by the
traditional rule of corups delecti. The rule of corups delecti was sufficiently
satisfied in this case and the judgment should be affirmed.
Facts Relevant to Corpus Delecti
As Ms. Hebert secured her dog that had broken loose, she looked towards
the Appellant and saw him pull a fixed-blade knife from his hip (III R.R. at 66-71).
A moment later, Thomas Kitto stood mortally injured while the Appellant
scrambled backwards, trying to pick up something that he had dropped on the
ground (id. at 70-72). Thereafter, the Appellant fled the scene as bystanders tried
to stop him from driving away (id. at 75).
Deputies with the Comal County Sheriff’s office responded, secured the
scene, and began taking statements (id. at 174). On the ground near the body of
Mr. Kitto, deputies found a baseball cap and the sheath for a fixed-blade knife (id.
at 186-189). Later that evening, Deputy Koepp found the Appellant driving a
green pick up truck near his residence (IV R.R. at 86). Deputy Koepp initiated a
traffic stop and the vehicle eventually came to a stop in a nearby driveway (id.
R.R. at 88). Deputy Koepp ordered the Appellant to place his hands on the squad
50
car (id. at 89). The Appellant appeared compliant with the deputy’s commands
and walked towards the squad car with his hands in the air; however, when Deputy
Koepp lowered his taser and reached for his handcuffs, the Appellant exclaimed
“Fuck that. I’m not going back” and ran (id. at 89). Deputy Koepp pursued the
Appellant, tackled him in the road, and dragged him back to the squad car where
he was secured in hand cuffs (id. at 89-91).
Sergeant Ward interviewed the Appellant about the death of Mr. Kitto (III
R.R. at 50). During the course of this interview, the Appellant admitted to
stabbing Mr. Kitto with a knife that the Appellant kept in a sheath in his back
pocket (VIII R.R. State’s Ex. 73). The Appellant stated during that interview that
he lost the sheath to the knife, that the sheath he lost did not actually belong to the
knife he used to kill Mr. Kitto, and that he threw the knife into Sorrell Creek (id.).
Based on the assertions made during the interview with the Appellant, Sergeant
Ward secured a search warrant for the Appellant’s residence and sent multiple
deputies to search Sorrell Creek for the knife used in the assault (IV R.R. at 148-
149). Deputies were not able to locate the knife in Sorrell Creek (id. at 149). Both
the baseball cap and the knife sheath found at the scene were sent to the DPS lab
for testing which confirmed that the Appellant’s DNA was on both items (id.).
Search warrants were executed on the Appellant’s residence, on the vehicle that he
was driving when he was apprehended, and on the vehicle that he been driving as
51
he fled from Canyon Falls RV Park (id. at 148-151). During the search of the
residence, deputies were able to recover the shirt that was worn during the assault
(id.). However, the knife used during the assault could not be located at the scene,
in the truck Appellant was driving when apprehended, in the vehicle with which he
fled the scene, or in the Appellant’s residence (id.).
Authorities on Corpus Delecti
The common law rule of corpus delecti is a rule of evidentiary sufficiency,
which holds that an extrajudicial confession of wrongdoing, standing alone, is
insufficient to support a conviction. Bulington v. State, 179 S.W.3d 223, 228 (Tex.
App.—Texarkana 2005, no pet.). Corpus delecti is a judicially fashioned rule
meant to ensure “that a person would not be convicted based solely on his own
false confession to a crime that never occurred.” Carrizales v. State, 414 S.W.3d
737, 740 (Tex. Crim. App. 2013). As such, there must be some other evidence to
indicate that a crime has been committed. Id.; Williams v. State, 958 S.W.2d 186,
190 (Tex. Crim. App. 1997). This other evidence needs not be sufficient in and of
itself to prove the offense; rather, it must merely render the commission of the
offense more probable than it would otherwise be. Id. The corpus delecti of any
crime simply consists of the fact that the crime in question has been committed by
someone. Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993). The rule
52
does not require corroboration as the details of the specific offense, but only that a
criminal offense has been committed by someone. Salazar v. State, 86 S.W.3d
640, 644 (Tex.Crim.App. 2002). Corpus delecti is satisfied “if some evidence
exists outside of the extra-judicial confession which, considered alone or in
connection with the confession, shows that the crime actually occurred.” Id.
(emphasis added).
The rule of corpus delecti has been sharply criticized because application of
the rule can result in the exclusion of reliable confessions. Miller v. State, 457
S.W.3d 919, 925 (Tex. Crim. App. 2015). For this very reason, the United States
Supreme Court and several other jurisdictions have deviated from the traditional
rule of corpus delecti in favor of a trustworthiness standard, which would allow for
a conviction based on an extrajudicial statement where there is substantial
independent evidence to establish the trustworthiness of the statement. Id. Texas
has not adopted a trustworthiness standard; however, Texas law does recognize a
closely related crimes exception to strict application of the corpus delecti rule in
cases where there is a close temporal relationship between the offenses. Id. at 927.
As such, in a case where a defendant has confessed to multiple offenses in a single
interview, the confessional statement as to each of those offenses will not be
excluded if the State can establish the corpus delecti of one offense described
within the confessional statement. Id. at 929. In applying this closely related
53
crimes exception, there is no requirement that a defendant be convicted of the
corroborated offense prior to the admission of his contemporaneous statement
regarding other closely related crimes. Id. Likewise, The ability to prosecute for
tampering with physical evidence is not dependent upon first securing a conviction
for the underlying offense.
Argument on Corpus Delecti
During his recorded interview with Sergeant Ward, the Appellant admitted
to stabbing Thomas Kitto with a knife, to keeping that knife in a sheath that did not
originally belong to that knife, to pulling the knife from his back pocket, that the
knife was a fixed-blade knife, and that he threw the knife used to kill Thomas Kitto
into Sorrell Creek (VIII R.R. State’s Ex. 73). During her testimony at trial, Andrea
Hebert testified that the Appellant drew a knife from his hip, that the knife was a
fixed-blade type knife, that Thomas Kitto suffered stab wounds during his conflict
with the Appellant, that the Appellant scrambled to pick up something after the
fight with Mr. Kitto, and that the Appellant fled from the scene as bystanders tried
to stop him. During their search of the crime scene officers located a black knife
sheath near the body of Thomas Kitto. That sheath was sent to the crime lab for
testing and the Appellant’s blood was found on the knife sheath recovered from the
scene. Detectives secured search warrants for the Appellant’s residence and for the
54
vehicle he was drove away from the crime scene. No knife was found during the
search of the vehicle that the Appellant used to flee from the scene. During the
search of the Appellant’s residence, deputies found the shirt that the Appellant had
worn during the assault but could not locate a knife. Deputies searched Sorrell
Creek but could not find the knife used to kill Thomas Kitto.
The evidence thus establishes that the Appellant did use a fixed-blade knife
held in a sheath that was pulled from his back pocket or hip to stab Thomas Kitto
and that no such knife was found during searches of the Appellant’s home or
vehicles. Deputies did find other evidence that connected the Appellant to the
crime, such as the shirt that the Appellant wore during the assault and blood
splatter in the Appellant’s vehicle, but the knife was not found with that other
evidence. Legal sufficiency under corpus delecti is established when some
evidence is introduced that by itself or together with the statement indicates that an
offense has been committed. In this case, the Appellant describes using a fixed-
blade knife, that he kept in a sheath in his back pocket, to stab the Appellant. That
portion of the statement is corroborated by eyewitnesses and evidence gathered at
the crime scene. The Appellant further describes getting rid of that knife, under the
belief that he had committed aggravated assault, by throwing the knife into Sorrell
Creek as he drove by on the highway. The fact that the knife was not found with
the other evidence located at the scene, at the Appellant’s residence, and in the
55
Appellant’s vehicle indicates that something else was done with the knife. This
circumstantial evidence is sufficient for a reasonable person to believe that it is
more likely than not that some criminal offense occurred in the disposition of the
knife.
Similar circumstantial arguments have been used to satisfy corpus delecti in
other cases. For example, in Fisher v. State, the defendant therein confessed in an
unrecorded conversation with a friend that he had killed his girlfriend. 851 S.W.2d
at 300-301. This statement was admitted at trial and the defendant was convicted
of murder. Id. On appeal, the court found that the State had satisfied the
requirements of corpus delecti by introducing evidence that the victim vanished
suddenly and without a trace, that the victim’s personal affairs were unresolved
when she disappeared, that the relationship between the victim and defendant had
become strained, that the victim lacked resources to leave town, that the defendant
had cleaned his home around the time of the victim’s disappearance, that the
defendant had a bruise on his face after the victim’s disappearance, and that the
defendant had been seen getting rid of the victim’s suitcase after her
disappearance. Id. at 304. Based on this circumstantial evidence, the court found
that a reasonable person could conclude that the victim was killed by criminal
means. Id. The evidence against the Appellant is more than mere circumstance.
There is evidence in the record to indicate that he was actually in possession of the
56
knife used in the assault and that he fled the scene with that knife fearing criminal
prosecution. The fact that the knife was not found with the other evidence
recovered certainly constitutes circumstances under which a reasonable person
could conclude that the knife was disposed of by criminal means. As such, the
legal sufficiency rule of corpus delecti is satisfied.
However, if the Court were to find that the evidence as stated does not
satisfy a strict application of corpus delecti, then the closely related crimes doctrine
should be utilized to satisfy corpus delecti. In this case, the Appellant confessed to
stabbing Thomas Kitto in an act that he characterized as “aggravated assault” (VIII
R.R. State’s Ex. 73). The context of his statement certainly suggests that this
aggravated assault or murder would be a crime closely related to the eventual
tampering that the Appellant described in throwing his knife into Sorrell Creek.
Since the aggravated assault or murder is clearly corroborated by eyewitness
accounts and the evidence gathered by detectives, corpus delecti is satisfied and the
statement is admissible for the purpose of those offenses. The statement is then
also corroborated under the closely related crimes doctrine and corpus delecti is
satisfied with regard to the offense of tampering with physical evidence.
For the purpose of corpus delecti, it is irrelevant whether the Appellant was
also convicted for aggravated assault or murder. The offense of tampering with
physical evidence is still a closely related crime to the sufficiently corroborated
57
offenses of aggravated assault or murder. As such, the conviction should be
affirmed.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, the State respectfully requests
this Court to deny Appellant’s four points of error and affirm Appellant’s
conviction for the offense of tampering with physical evidence as alleged in the
indictment.
Respectfully Submitted,
/s/ Clayten Hearrell
Clayten Hearrell
Assistant Criminal District Attorney
SBN: 24059919
150 N. Seguin Ave., Suite 307
New Braunfels, Texas 78130
Phone: (830) 221-1300
Fax: (830) 608-2008
hearrc@co.comal.tx.us
ATTORNEY FOR THE STATE
58
CERTIFICATE OF SERVICE
I, Clayten Hearrell, attorney for the State of Texas, Appellee, hereby certify
that a true and correct copy of this brief has been delivered to the attorney of
record for ERIC BYRON CRAYTON:
Mr. Richard Wetzel
wetzel_law@1411west.com
1411 West Avenue, Suite 100
Austin, TX 78701
(512) 469-7943
(512) 474-5594
Attorney for Appellant on Appeal
By electronically sending it to the above-listed email address through
efile.txcourts.gov, this 3rd day of July, 2015.
/s/ Clayten Hearrell
Clayten Hearrell
CERTIFICATE OF COMPLIANCE
I, Clayten Hearrell, hereby certify that this document was prepared in MS
Word and it does not exceed the allowable length for an appellate brief, pursuant to
Tex. R. App. Pro. 9.4, as amended and adopted on November 30, 2012, by Order
of the Texas Court of Criminal Appeals. The approximate total of words in this
document, as calculated by the word processing software, is 14,218 words.
/s/ Clayten Hearrell
Clayten Hearrell
59