Wiley, James v. State ( 2004 )

Affirmed and Memorandum Opinion filed August 12, 2004

Affirmed and Memorandum Opinion filed August 12, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00658-CR

____________

JAMES WILEY, Appellant

V.

THE STATE OF TEXAS, Appellee

_____________________________________________________

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 923001

_____________________________________________________

M E M O R A N D U M   O P I N I O N

Appellant entered a plea of not guilty to the offense of aggravated assault. He was convicted of the lesser offense of deadly conduct, and the trial court sentenced him to thirty-five years= confinement.  In three issues, appellant contends (1) the trial court erred by failing to file findings of fact and conclusions of law pursuant to Texas Code of Criminal Procedure article 38.22, section 6; (2) the trial court erred by denying appellant=s motion to suppress his statement; and (3) the evidence was factually insufficient to support appellant=s conviction.  We affirm.

I.  Factual And Procedural  Background

On the afternoon of September 2, 2002, James Clark and his girlfriend, Kathy Ridley, were walking from Clark=s home to Ridley=s mother=s home.  Ridley felt ill and sat down under a tree.  Appellant, whom Ridley testified was a former boyfriend, drove by and asked Ridley to get into his vehicle.  Ridley refused.  Appellant left and returned with Ridley=s brother and, asked Ridley to get into his vehicle. Ridley again refused and she and Clark continued to walk toward her mother=s home.  Appellant followed Ridley and Clark in his vehicle and confronted them. Appellant stepped out of the vehicle holding a rifle and threatened to kill Clark.  Clark pushed Ridley out of the way and ran from appellant. Appellant then shot Clark in the back. Wounded by the shot, Clark ran to a friend=s apartment and called the police and an ambulance.

Two Houston police officers responded to the call, and Clark told them appellant had shot him.  The officers learned where appellant lived and detained him in their patrol car.  Appellant informed a third officer, Daniel Snow, that he was a diabetic and needed medication before being taken to the police station.  Officer Snow knocked on appellant=s apartment door and spoke with Mary Lewis, appellant=s live-in girlfriend.  Lewis consented to a search of the apartment.  Officer Snow retrieved appellant=s insulin and seized the rifle used during the shooting.  At the police station, appellant was placed in an interview room.  He requested and was provided a glass of water.   He was also advised of his rights pursuant to Miranda v. Arizona, 384 U.S.436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and knowingly and voluntarily waived those rights.  Appellant agreed to give a statement, which was recorded on videotape. 

In his taped statement, appellant stated that on the Friday evening before the shooting, he had seen Clark attempting to burglarize his car.  He further stated that on the day of the shooting, he saw Clark walking along the side of the road.  Appellant said he recognized Clark as the man who had attempted to break into his car and confronted him about the break-in. According to appellant, Clark was alone. Appellant stated Clark advanced toward him, therefore he backed up toward his car.  When appellant reached his car, he retrieved a rifle from the trunk of the car. At that point, appellant said he became angry because Clark called him a derogatory name.  When Clark saw the rifle, he began to run.  Appellant also stated, AWhen he got so far, I just, >Pow.=@  Appellant then demonstrated his actions by holding an imaginary rifle and pretending to shoot.  After he shot the rifle, appellant put the rifle back in the trunk of the car and drove away.  Appellant stated he did not know Clark had actually been struck.  

II.  Discussion

A.  Voluntariness of Confession

1.         Findings of Fact and Conclusions of Law

In his first issue, appellant contends the trial court erred by failing to file findings of fact and conclusions of law pursuant to article 38.22, section 6 of the Texas Code of Criminal Procedure.  Section 6 of article 38.22 requires the trial court to file findings of fact and conclusions of law when a question is raised as to the voluntariness of the statement and the trial court has held the statement was voluntarily made.  State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999).  Here, after appellant=s brief was filed, the trial court filed findings of fact and conclusions of law.  Therefore, the trial court met the requirement of article 38.22 and appellant=s first issue is overruled.  See Cunningham v. State, 846 S.W.2d 147, 151 (Tex. App.CAustin 1993), aff=d, 877 S.W.2d 310 (Tex. Crim. App. 1994).

2.         Admission of Statement

In his second issue, appellant contends the trial court erred by denying appellant=s motion to suppress his statement.  The State first asserts appellant failed to preserve error for review because he did not file a written pretrial motion to suppress. A trial objection, however, is sufficient to raise the issue of voluntariness.  See Wicker v. State, 740 S.W.2d 779, 782 (Tex. Crim. App. 1987). Prior to the admission of appellant=s statement, appellant objected and requested a hearing outside the presence of the jury.  A hearing was held at which Officer Snow and appellant testified.  At the conclusion of the hearing, the trial court found appellant=s confession was voluntary and admissible. Therefore, appellant preserved error for review.

A trial court=s ruling on the voluntariness of a confession will not be set aside absent a showing of abuse of discretion.  Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the ruling.  Santos v. State, 822 S.W.2d 338, 339 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d).  As the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony, the trial court was free to believe the officer=s testimony and disbelieve appellant=s testimony.  See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

Outside the jury=s presence, Officer Snow testified appellant was advised of his Miranda rights and indicated he understood those rights. He also testified appellant asked for a glass of water and was given one.  Appellant was not deprived of food, water, or restroom breaks.  Further, there is no evidence of threats or coercion. Officer Snow also testified appellant did not appear to be under the influence of alcohol or narcotics, nor did appellant indicate that he was experiencing any problems related to his blood sugar level or diabetic condition.

However, appellant testified that he is a high-risk diabetic who must take insulin at least twice a day.  He stated he thought he took insulin the morning of the shooting, but could not be certain.  At the time he was brought to the police station, appellant thought his blood sugar was too high so he asked for a glass of water, which, he stated, usually has the effect of lowering his blood sugar level.  Appellant testified that although he stated he understood his rights, he did not voluntarily give a statement because his blood sugar was too high. 

As stated in its findings of fact, the trial court found Officer Snow was a credible witness and that appellant was not credible.  The trial court further found that Officer Snow had advised appellant of his rights and appellant understood and waived his rights. The trial court also determined that appellant was not beaten, coerced, or threatened into giving his statement, nor was he deprived of basic necessities, including water.  Appellant was found not to be under the influence of narcotics or alcohol, and the court determined he understood the process and was not suffering from any mental or physical impairment.  Considering those facts, the trial court concluded that, as required by the United States Constitution, the Texas Constitution, and the Texas Code of Criminal Procedure, appellant=s statement was made freely and voluntarily without compulsion or persuasion. We conclude the trial court did not abuse its discretion in finding appellant=s statement voluntary and denying his motion to suppress.  Appellant=s second issue is overruled.

B.  Sufficiency of the Evidence

In his third issue, appellant contends the evidence is factually insufficient to support his conviction.  Specifically, he contends he did not intend to pull the trigger on the rifle.  The court=s charge instructed the jury to find appellant guilty of felony deadly conduct if it found he Aknowingly discharge[d] a firearm at or in the direction of one or more individuals.@ Appellant contends because he did not intend to pull the trigger on the rifle, he did not knowingly discharge a firearm.

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, No. 539‑02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004).  A reviewing court may find the evidence factually insufficient in two ways. Id.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id.  Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond‑a‑reasonable‑doubt standard could not have been met.  Id.  In conducting the factual‑sufficiency review, we must employ appropriate deference so we do not substitute our judgment for that of the fact finder.  Id. at *4.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Our factual sufficiency review must include a discussion of the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant argues the evidence supporting a finding that appellant knowingly discharged a firearm is so weak that such a finding is unjust.  Appellant testified at trial he did not intend to shoot Clark, and he did not intend to pull the trigger on the rifle.  Appellant testified Clark was alone when confronted by appellant and Clark was holding a screwdriver.  Appellant was afraid Clark would use the screwdriver as a weapon so he retrieved the rifle from the trunk of the car to protect himself.  Appellant=s version of the incident differs significantly from the version relayed by Clark and Ridley.  Clark and Ridley testified that they were walking together when appellant threatened to kill Clark.  Ridley testified that appellant pointed the gun^[1] at Clark and shot him.  Appellant, in his video-taped statement, did not state Clark had a screwdriver and admitted he fired the rifle after Clark started to run away.

The disputed element is whether appellant knowingly discharged the firearm. Clark and Ridley both testified appellant knowingly fired the rifle.  Appellant, in his video-taped statement, admitted he fired the rifle. The only evidence appellant did not intend to pull the trigger is appellant=s testimony at trial.  The jury, by its verdict, chose to credit the testimony offered by the State rather than the defense.  The jury was entitled to judge the credibility of the witnesses and reconcile conflicts in their testimony.  See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  After reviewing the conflicting evidence, we conclude the evidence is factually sufficient to support the jury=s conclusion that appellant knowingly discharged the firearm.  Appellant=s third issue is overruled.

The judgment of the trial court is affirmed.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed August 12, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

---

^[1]  Ridley, Clark, and appellant use the terms Agun@ and Arifle@ interchangeably. The record reflects that the Afirearm@ mentioned in the indictment was a rifle.