Kyle Wayne Prater v. State

NO. 07-06-0373-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MARCH 27, 2007 ______________________________

KYLE WAYNE PRATER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 31^ST DISTRICT COURT OF HEMPHILL COUNTY;

NO. 2592; HON. STEVEN R. EMMERT, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Kyle Wayne Prater (appellant) appeals from the judgment revoking his community supervision. He was originally convicted of possessing four or more but less than 200 grams of a controlled substance, a felony of the second degree. His three issues involve whether the trial judge was fair, neutral and detached and the omission of documents (the motion to revoke and conditions of community supervision) from the appellate record. We overrule each and affirm.

Background

Appellant was indicted for possession of a controlled substance, convicted by a jury and assessed punishment at ten years in prison. However, his sentence was suspended, and he was placed on community supervision for ten years. Subsequently, the State moved to revoke appellant's probation for a myriad of reasons including his continued use of controlled substances. A hearing was held whereat appellant admitted true to most of the allegations in the State's motion, including those involving controlled substances. So too was other testimony received supporting the State's motion. Thereafter, the trial court found that appellant violated his probation and sentenced him to eight (not ten) years in prison.

Issue One - Trial Court was Biased

In his first issue, appellant contends the trial court was not impartial or neutral. This supposed lack of impartiality was evinced by its comment that "I told you that if you came back in here you weren't going to like it. . . "and its decision to set bail on appeal at $50,000. Yet, appellant objected below neither to the court's comment, to the amount of bail nor to the purported lack of impartiality. Neither does the record reflect that appellant moved for a new trial based upon discovering the trial court's supposed impartiality or moved for the judge's recusal. Consequently, the complaint was not preserved for review. Tex. R. App. P. 33.1; see Baxter v. State, 936 S.W.2d 469, 471 (Tex. App.-Fort Worth 1996), pet. dism'd, improvidently granted, 960 S.W.2d 82 (Tex. Crim. App. 1998) (holding that the contemporaneous objection rule applies to allegations that the accused was denied due process); Smith v. State, 993 S.W.2d 408, 410 (Tex. App.-Houston [14^th Dist.] 1999, pet. ref'd) (holding that by failing to object to the bond conditions when they were made, appellant failed to preserve error for appeal).

Moreover, read in context, we find nothing that suggests the trial court predetermined the outcome. In referring back to the cautions uttered when probating the original sentence, the trial court simply informed appellant that he had been previously warned and afforded a chance to redeem himself. This was then followed by iterations revealing the court's reluctance to imprison appellant and its need to retain its credibility and obtain the accused's attention. Simply put, a trial court need not utter hollow warnings or advice to avoid allegations of impartiality. Surely, if children can recognize when parents do not mean what they say, then so too can felons.

Lastly, the trial court had before it appellant's own admissions as well as other evidence of his guilt. So too did it opt to render a lesser term of imprisonment than that originally levied. These circumstances remove the situation before us from those indicative of partiality. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (holding that the trial court's comments which included calling the defendant a predator did not show bias or partiality when the record reflected that the trial court reviewed the evidence and a predetermined sentence was not imposed).

Issues Two and Three - Missing Records

In his last two issues, appellant contends that the record does not support the revocation because it omits the State's motion to revoke and the conditions of probation originally imposed on him. Both appear in a supplemental clerk's record, however. Consequently, the issues are moot. See Sawyer v. State, 655 S.W.2d 226, 227 (Tex. App.-Houston [14^th Dist.] 1983, no pet.) (holding that complaints about documents missing from the record are rendered moot when the documents are included in a supplemental appellate record).     

We affirm the judgment of the trial court.

Brian Quinn

Chief Justice

Do not publish.

ber 28, 2007, the trial court held a suppression hearing on Appellant’s motion. Detective Jerod Carr was the sole witness. Detective Carr testified that, on October 4, 2007, he went to Appellant’s house shortly before 5:00 p.m. and arrested him pursuant to a warrant. Appellant was nineteen years old and indicated he had smoked marihuana earlier that day. When they arrived at the police station, he was given his Miranda rights. From the time of his arrest through booking, he cried off and on. Initially, he denied any wrongdoing, however, after less than an hour of questioning, he admitted he had sexually assaulted the victim. After his admission, Detective Carr placed him in an interrogation room and started videotaping his confession at 5:30 p.m.

          At the outset of the videotape, Detective Carr again read Appellant his rights and indicated that Appellant could terminate the interview at any time. Appellant initialed the rights he was given and signed a written statement of his rights. He also signed a statement indicating that all his statements were voluntary. Detective Carr reiterated that Appellant was free to answer his questions or not. In the twenty-seven minute interview, Appellant confessed to sexually assaulting the victim.

          After a psychiatric evaluation and hearing, on February 6, 2008, Appellant was adjudged competent to stand trial. On March 31, 2008, Appellant was tried before the court and found guilty of aggravated sexual assault and indecency with a child by contact. This appeal followed.

Discussion

          Appellant contends his confession was not voluntary because, at the time of his statements, Detective Carr was wearing his gun and Appellant was suffering from a mental disorder, scared, and crying.

          We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007). The trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007). Therefore, we give almost total deference to the trial court’s rulings on questions of historical fact and application of law-to-fact questions that turn on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673. However, when application of law-to-fact questions do not turn on the credibility and demeanor of the witnesses, we review the trial court’s rulings on those questions de novo. Id.

          The statement of the accused may be used in evidence if it was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). In deciding whether a statement was voluntary, we consider the totality of the circumstances in which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App. 1997). A confession is involuntary if circumstances show that the defendant’s will was “overborne” by police coercion. Id. at 856. The defendant’s will may be “overborne” if the record shows that there was “official, coercive conduct of such a nature” that a statement from the defendant was “unlikely to have been the product of an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995).

          Based on the evidence provided at the suppression hearing, the totality of circumstances show that Appellant knowingly and voluntarily gave his statement after being given his Miranda warnings. The record does not show that Appellant was under duress or that Detective Carr coerced him by using improper promises or undue physical or mental influence. The interview was relatively short, lasting less than an hour, and was not taken in abnormally adverse conditions. At no point did Appellant request an attorney or indicate that he wanted to terminate the interview.

          There is nothing inherently inappropriate about the nature of police questioning in this case. “Courts have long acknowledged the legitimate role of interrogation in the investigation of crime.” Vasquez v. State, 179 S.W.3d 646, 657 n.7 (Tex.App.–Austin 2005), aff’d, 225 S.W.3d 541 (Tex.Crim.App. 2007). A defendant’s mental condition alone is not determinative of the voluntariness of the confession but is only one factor to be considered. Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 977, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995). The question becomes one of whether the accused’s mental impairment is so great that it rendered him incapable of understanding the meaning and effect of his statement. Casias v. State, 452 S.W.2d 483, 488 (Tex.Crim.App. 1970). Further, while emotional confusion brought about by the stress of the situation is relevant to the voluntariness determination, it is only one of the circumstances to be considered. Licon v. State, 99 S.W.3d 918, 925-26 (Tex.App.–El Paso 2003, no pet.) (“mere emotionalism or confusion alone will not render a confession inadmissible”).

          Appellant’s demeanor throughout the interview was calm and lucid. He did not appear delusional or under the influence of drugs. Detective Carr testified that Appellant’s fear stemmed from “what he had done and the consequences,” not the result of mistreatment. Viewing the evidence in its totality, we find the trial court did not abuse its discretion in denying Appellant’s motion to suppress. Appellant’s sole point of error is overruled.

Conclusion  

          The trial court’s judgment is affirmed.

                                                                           Patrick A. Pirtle

                                                                                 Justice

Do not publish.