David Lee Yeager v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-340 CR ____________________

DAVID LEE YEAGER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Court Cause No. 82480

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O P I N I O N

Appellant David Lee Yeager was indicted for the offense of murder. A jury convicted him of the lesser-included offense of manslaughter, and the trial court assessed his punishment at twenty years in the Texas Department of Criminal Justice -- Institutional Division. Yeager appeals, challenging the sufficiency of the evidence and the voluntariness of his confession.

Background Facts

David Yeager was seen taking a radio belonging to Johnny Lozano's son. Johnny went to retrieve the radio from Yeager, who lived a short distance from the Lozano house. Sixteen-year-old Teri Hardi was with Yeager and some other friends that day. They were all drunk. She testified she saw Yeager hit Johnny Lozano approximately thirteen or fourteen times in the face and head with his fists. Teri observed Yeager repeatedly kick Lozano hard. At one point, Yeager began stomping with both his feet on Lozano. Teri described the stomping as "jumping up and down on [Lozano] with all of his weight." After Yeager stopped, he angrily yelled, "I'm going to get him out of my yard" and then he dragged Lozano out of the yard to the middle of the road and kicked him again. On cross examination, Teri acknowledged that she left some things out when she first talked to the police. Her initial statement to the authorities contained no reference to kicking or stomping, and described Johnny as appearing mad.

Arthur Collins, twenty-six years old, testified that he, Yeager, Teri, and Christy Conwell were "just hanging out drinking." His testimony corresponded with much of Teri Hardi's account. According to Collins, Yeager came out of the house, ran up to Johnny, and angrily said, "I'm going to kill you . . . ." Yeager then hit Johnny in the face with his fists and continued to hit him. Arthur explained he went inside the house and, unlike Teri, never saw Yeager stomp on Johnny. Arthur also testified he pulled Yeager back at one point, but then Yeager "ran up again and he started hitting [Johnny] again and then I pulled him back twice and that's when he [quit]."

Testifying in his own defense, David Yeager declared that although he was with Arthur when the radio was taken from the Lozanos, it was actually Arthur who took it. Yeager returned to his house and lay down. Hearing a car horn honk, he looked outside and saw Johnny Lozano leaning over the car window. Johnny was yelling and screaming, and Yeager told him three times to leave the yard. Lozano swung at Yeager, and the fight began. Yeager maintains Johnny hit him a few times, and Yeager hit Johnny only two times. Yeager submitted photographs taken of himself that showed bruises and scrapes allegedly sustained during the "fight."

Detective Harrison indicated that the statements he initially took from Teri and Arthur made no mention of any "kicking" or "stomping." The first time he heard those words in connection with Lozano's death was at the autopsy performed the morning after Lozano died. Officer Legnon testified that Teri Hardi told him the night Lozano died that Yeager kicked and beat up Lozano, but those words are not in the police report.

Dr. Brown, the forensic pathologist who performed the autopsy, testified "[t]he cause of death was a ruptured heart . . . due to blunt force injury"; he reported the death as a homicide. Brown agreed someone outside the profession would probably not know that this type of blunt trauma could cause a heart rupture or death. In addition to the ruptured heart, Lozano had fractures of both sides of his cheekbones, severe fractures of the nasal bones, a large bruise of the collar bone, a large abrasion in the buttock area, hemorrhage at the back of his head on both sides, and fractures of five ribs on one side and four ribs on the other side. Dr. Brown concluded that the heart rupture was consistent with someone stomping Lozano and that "[Lozano] died because he was beaten to death."

Issue One -- Sufficiency of the Evidence

Yeager contends the evidence is legally and factually insufficient to convict him of manslaughter. In a legal sufficiency review, this court looks at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In a factual sufficiency review, we consider all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

A person commits the offense of manslaughter if he recklessly causes the death of an individual. See Tex. Pen. Code Ann. § 19.04 (Vernon 1994). Yeager contends the evidence is insufficient to show he was reckless -- i.e., that he was aware the risk of death was present. The trier of fact makes its determination of culpable mental state from all of the circumstances and may make reasonable inferences from the acts, words, and conduct of the accused. See Arellano v. State, 54 S.W.2d 391, 393-94 (Tex. App.--Waco 2001, pet. ref'd). Here the jury was free to disbelieve Yeager when he said he only hit Lozano twice; the jury could have believed Arthur Collins when he testified Yeager repeatedly hit Lozano, and believed Teri Hardi when she testified Yeager kicked and stomped Lozano repeatedly. "'At the heart of reckless conduct is conscious disregard of the risk created by the actor's conduct.'" Trepanier v. State, 940 S.W.2d 827, 829 (Tex. App.--Austin 1997, pet. ref'd)(quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975)). From the basic fact of kicking and stomping on the stomach of a person lying prone on the ground, the jury could have inferred the ultimate fact of appellant's recklessness -- i.e., that he consciously disregarded the risk of his conduct. The evidence is legally and factually sufficient to support the finding that Yeager was reckless.

Voluntariness of the Confession

In issues two and three, Yeager contends the trial court erred in denying his pre-trial motion to suppress and in later admitting his written statement into evidence at trial. He maintains the statement was involuntary because it contains inaccuracies. Specifically, Yeager asserts he never told the officer who typed the statement that he side-kicked Johnny Lozano.

An accused's statement may be used against him if it appears that it was freely and voluntarily made without compulsion or persuasion. See Tex. Code Crim. Proc. Ann. arts. 38.21, 38.22 (Vernon 1979 & Supp. 2002); Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). The determination of the voluntariness of a confession depends upon an examination of the totality of circumstances surrounding its acquisition. Id. (citing Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)).

At the suppression hearing, Detective Harrison testified that, prior to taking the statement, he orally advised Yeager of his constitutional rights, and Yeager told Harrison that he understood those rights. In explaining the process of taking the statement, Harrison testified that as "[Yeager] talked, I typed a statement out." "[W]e talk and I type a little bit and . . . try to get it the best I can to the way they want their statement to read." Yeager described the process in similar fashion: "He would ask me a question and then he would type it and then he would ask me a question and type it." Harrison acknowledged he did not type the statement word-for-word and agreed it was fair to call it a "condensation" or paraphrase of what was said. He indicated he could not say that the word "sidekick" was Yeager's exact wording, but he thought that Yeager told him about the "kick."

Once the statement was completed, Harrison then gave Yeager a written version of it with the warnings printed at the top of the page. Harrison asked him to "re-read the warnings" and "initial them as he went down the page to make sure that he understood them." The record reflects that each warning is initialed. Harrison also asked him to initial the waiver, read the statement, and then sign it. According to Harrison, Yeager never asked for an attorney during the interview and never requested that Harrison stop asking him questions or stop the interview.

During Yeager's testimony, at the suppression hearing, he indicated he was "not sure" and did not remember whether Detective Harrison gave him the warnings. He said he did not remember whether he had a chance to read the statement prior to signing it; he supposed he did, but he was not sure. Yeager stated, "[T]hat is my signature" and "I know that it's mine." When asked whether he mentioned the word "kick" first, Yeager responded as follows:

Q. (Defense Counsel): . . . [D]o you recall . . . whether you mentioned the word, "kick" first or whether Detective Harrison did?

A. (Yeager): He asked me . . . if I hit [Lozano] and then he asked me if I kicked him.

Q. And what was your response?

A. I told him, "No". I told him, "I hit him." And then I told him that, "I didn't kick him".

Q. What was his response?

A. . . . I remember him asking me if I kicked him. I said . . . "I didn't think so." And then he asked me, if I would have, how I would have did it. And I said, "I don't know." . . . . He asked me, "Would it have been with a side kick"? And I said, "I don't know. If I kicked him -," I said "- it might have been", you know. He asked me to name some specific kind of kick. And, I mean, I couldn't really just do that for him.

. . . .

Q. And . . . then he mentioned, if you did kick him, would it have been with a side kick?

A. Yes, sir.

Q. And, you said what -

A. I told him, "I didn't know", you know. "If I was to kick somebody, I guess that might be how I would have did it".

Q. Okay. Now, I want to ask you this: did you say that - "Then I kicked him with a side kick in the chest." Is that - any part of your testimony to - -

A. Those weren't my words; no, sir.

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Q. . . . This does not reflect your voluntary statement?

A. No, sir.

On cross examination Yeager acknowledged he signed the statement at the bottom of both pages one and two, and that he initialed the warnings. Yeager indicated he knew that he had a right to remain silent, that any statements he did make could be used against him at trial, that he could stop the interview at any time, that he had a right to have an attorney present to advise him, and that if he could not employ an attorney, the judge would appoint one. He also indicated the procedure was not new to him as he had been arrested before and had been read his constitutional rights before. On redirect examination by his trial counsel, Yeager indicated he was not given the warnings and did not know what his rights were. However, he does not make that argument on appeal. Appellant's argument on appeal concerning involuntariness of the statement is based solely on the allegation of inaccuracy in the statement.

The trial judge heard conflicting, and at times confusing, testimony. He heard Yeager's testimony about the "kicking" and "sidekick" language. He heard Detective Harrison testify he paraphrased what Yeager told him during the custodial interrogation. "The law does not require that a confession be in the exact language of the accused." Bell v. State, 724 S.W.2d 780, 793 (Tex. Crim. App. 1986). So long as the confession is voluntary, an officer may reduce a defendant's oral statement into writing; the officer is allowed to paraphrase the statement. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995). The mere act of paraphrasing does not render the statement involuntary.

In effect, appellant argues that a portion of the written confession was not his statement, despite his signature on the confession. The resolution of this issue turned on the credibility of the witnesses. Based on the totality of circumstances and on the proper deference to the trial court's ruling, we hold the trial court did not abuse its discretion in denying appellant's motion to suppress. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

At trial Yeager again challenged the admissibility of the statement. Harrison repeated his testimony that he read each of the warnings to Yeager and that Yeager indicated he wanted to waive those rights and to talk to Harrison. Harrison again explained the process of typing while Yeager talked to him. During defense counsel's voir dire of Harrison, Harrison indicated the witness Teri Hardi did not mention to him anything about Yeager's kicking the victim, and that he (Harrison) first heard of the idea that "feet must have been used" during Dr. Brown's autopsy on Lozano. In response to trial counsel's questions about situations where a statement does not reflect what the defendant actually said, Harrison explained the safeguards surrounding the process he uses in taking a statement:

That's why the process is done where I type the statement and then the statement is handed to the person that made the statement and they have an opportunity to correct something or change something that they don't like because it's their statement. And if there's some word in there, then, that is their opportunity to tell me they don't like something and I can change it on the word processor.

At trial, the considerations surrounding the admissibility of the statement into evidence were much the same as those presented at the suppression hearing. A trial judge's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. See Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim. App. 2001). Under the circumstances, it was for the trier of fact to decide whether the written confession signed by appellant accurately described his actions. We conclude the trial judge did not abuse his discretion in admitting the statement into evidence. Issues two and three are overruled.

The conviction is affirmed.

AFFIRMED.

   PER CURIAM

Submitted on August 22, 2002

Opinion Delivered August 28, 2002

Do Not Publish

Before Walker, C.J., Burgess, and Gaultney, JJ.