Davis, Dreaglen Sylvester v. State ( 2006 )

Affirmed and Memorandum Opinion filed February 7, 2006

Affirmed and Memorandum Opinion filed February 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01142-CR

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DREAGLEN SYLVESTER DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 262nd District Court

Harris County, Texas

Trial Court Cause No. 986,106

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M E M O R A N D U M O P I N I O N

Dreaglen Sylvester Davis appeals a conviction for aggravated robbery^[1] on the ground that the trial court erroneously denied his motion to suppress four written confessions because he did not voluntarily waive his constitutional rights.^[2]  We affirm.

Appellant=s two issues contend that his written confession of the charged offense, admitted during the guilt phase of trial, and his written confessions of additional aggravated robberies, admitted during the punishment phase of trial, were coerced by physical abuse, false promises of leniency, assurances that the statements would not be used in court, Detective Eta=s failure to take appellant before a magistrate prior to interviewing him,^[3] and his lack of understanding of the word Awaive.@

When reviewing a trial court's ruling on a mixed question of law and fact, we review the trial court's application of the law to the facts of the case de novo.  Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). However, we afford almost total deference to the trial court's determinations of historical facts that involve an evaluation of the credibility and demeanor of the witnesses. Masterson v. State, 155 S.W.3d 167, 170 (Tex. Crim. App. 2005), petition for cert. filed, __ U.S.L.W. __ (U.S. May 3, 2005) (No. 04‑10283). The trial court is the sole fact-finder at a hearing on the voluntariness of a confession and may choose to believe or disbelieve any or all of the witnesses' testimony.  Sells v. State, 121 S.W.3d 748, 767 (Tex. Crim. App. 2003). We are not at liberty to disturb any finding that is supported by the record.  Id.

A defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction.  Id.  A confession is involuntary or coerced if the totality of the circumstances demonstrates that the confessor did not make the decision to confess of his own free will. Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996).

In this case, at the suppression hearing during the guilt phase of trial, Detective Eta testified that: (1) he saw appellant for the first time at the Harris County jail at around 7:00 or 7:30 p.m. after appellant had arrived from Laredo, Texas; (2) appellant did not tell Eta that he was tired from his trip, appellant looked fine, and Eta was not aware of any mistreatment appellant might have suffered in Laredo; (3) Eta offered appellant something to eat and appellant ate a sandwich and drank some milk; (4) appellant was uncuffed while he was eating; (5) Eta read appellant his rights as provided in article 38.22, section 2(a), of the Code of Criminal Procedure;^[4] (6) Eta did not make threats, innuendos, suggestions, or do anything to make appellant give his statement against his own will; (7) appellant indicated that he understood his rights and admitted committing the offense; (8) appellant gave his first statement around 8:15 p.m., which was typed out by Eta but reviewed and edited by appellant; (9) appellant understood waiving his rights and initialed the waiver of each of his rights on the written form; and (10) Eta did not tell appellant he would not use the statements against appellant.

Conversely, appellant testified that: (1) Eta promised to help him get a short sentence if he gave a confession; (2) Eta told him the confession would not be used in court; (3) he suffered physical abuse at the Laredo jail, was not allowed to eat during his trip from Laredo to Houston, and was handcuffed during the interrogation, which strained his 350 pound body; and (4) he did not understand the meaning of the word Awaive@ at the time he made the statement and thought that the word meant to wave at someone.

After hearing Eta=s and appellant=s testimony, the trial court denied appellant=s motion to suppress and made the following finding: A[appellant] . . . freely and voluntarily waived the rights after he was given those rights in very clear and unequivocal language.  I find [appellant=s] testimony to be incredible, I find the testimony of the detective that testified to be credible, and [appellant=s] motion will be denied.@

At the suppression hearing during the punishment phase of trial,^[5] Detective Eta reiterated that: (1) he saw appellant for the first time at the Harris County jail at around 7:00 or 7:30 p.m. after appellant had arrived from Laredo, Texas and asked appellant if he was willing to speak to him about cases he was investigating, to which appellant agreed; (2) appellant never complained to him or anyone else at the Harris County Sheriff=s Department that he had been mistreated in Laredo; (3) Eta provided appellant with food, drink, and an opportunity to use the restroom; (4) appellant arrived handcuffed but was uncuffed when he was received into the processing center and remained so; (5) Eta read appellant his rights as provided in article 38.22, section 2(a), of the Code of Criminal Procedure;^[6] (6) he did not threaten, promise, coerce, intimidate or do anything that would cause appellant to make statements against his will; (7) appellant was comfortable and didn=t ask for anything; in fact, appellant called his mother=s house; (8) appellant made the statements voluntarily because he stated AI ain=t tripping,@ after Eta advised him of his rights; (9) appellant initialed the statements and also initialed that Eta did not coerce, promise or offer him any rewards to induce his signature; (10) appellant understood the warnings and statements he made and even made changes in his handwriting to some of his statements; (11) Eta did not tell appellant that the statements would not be used against appellant; and (12) appellant never told Eta that he wanted to talk to an attorney.

Appellant=s brief does not cite any of his testimony or other evidence from the suppression hearing during the punishment phase to support his claims.  Because the record in this case supports the trial court=s denial of appellant=s motions to suppress, his two issues are overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed February 7, 2006.

Panel consists of Justices Anderson, Edelman and Frost.

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

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^[1]           A jury found appellant guilty of the offense and assessed punishment at 55 years= confinement.

^[2]           The requirement that a confession be voluntary to be admitted into evidence is based on the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment. Dickerson v. U.S., 530 U.S. 428, 433 (2000).

^[3]           Prior to making a statement, an accused must receive a warning from either a magistrate or the person to whom the statement is made.  Tex. Code Crim. Proc. Ann. art. 38.22 ' 2(a) (Vernon 2005). It is not required that an accused be brought before a magistrate before being interviewed.  See id. 

^[4]           See Tex. Code Crim. Proc. Ann. art. 38.22 ' 2(a).

^[5]           The record does not indicate why two suppression hearings were held.

^[6]           See Tex. Code Crim. Proc. Ann. art. 38.22 ' 2(a).