in Re Billy Ray Thurman

In re Billy Ray Thurman

  IN THE

TENTH COURT OF APPEALS

No. 10-04-00119-CV

IN RE BILLY RAY THURMAN

Original Proceeding

MEMORANDUM OPINION

      The petition for writ of mandamus is denied.

                                                                   PER CURIAM

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Writ denied

Opinion delivered and filed June 23, 2004

[OT06]

#160;                                                               

      Ricky Smith appeals a life sentence for murder assessed under a negotiated plea agreement. He was originally indicted for capital murder in Cause No. 91-378-C. The court dismissed the capital-murder indictment, however, in return for Smith's plea of nolo contendere to the lesser offense of murder in Cause No. 92-5-C. At Smith's request, the court took judicial notice of all matters, motions, and hearings in Cause No. 91-378-C and included them in the record of Cause No. 92-5-C. He now appeals the denial of a pretrial motion to suppress his oral confessions originally filed and determined in Cause No. 91-378-C before the charge was reduced. We will reverse and remand.

FACTUAL BACKGROUND

      Smith was a suspect in the death of Cheryl Logan because he was known to associate with Clinnie Childress, a man who had been identified as one of two black males seen in the field where Logan's body was discovered. Officers arrested Smith on December 8, 1986, after realizing that he was wanted on an outstanding burglary warrant. After his arrest, Smith talked with officers about the Logan murder case, indicating that he could account for his whereabouts on the day of the murder. His statements at this point were exculpatory. The officers did not take a statement from him at that time.

      The next day Smith sent a message through a jail guard that he again wanted to talk about the murder case, and he subsequently gave a written statement to Detective Bill Sanders in which he admitted being present at the murder but denied taking part in the offense. He stated that he left when Childress began chasing the girl.

      On December 10, Smith again told jail personnel that he wanted to talk with Detective Sanders. After talking with Sanders, Smith gave another written statement on December 10 in which he told Sanders that Childress grabbed the girl, dragged her into the brush, and began assaulting her. Smith told Sanders that he tried to make Childress stop but was unable to do so. Smith said that he became frightened and ran home. A complaint charging Smith with capital murder was filed on December 10.

      In mid-December 1986, Smith told a jail deputy that he wanted to speak with investigators of the Waco Police Department. Smith then told Detective Robert Grissom of the Waco Police Department two different versions of what had occurred. In his first verbal account to Grissom, Smith indicated that Childress had grabbed Logan and pushed her down on the ground and that Smith then ran away. Grissom interviewed Childress and realized that Smith had not told Grissom what had actually occurred.

      In his second verbal account to Grissom, Smith said that Childress had a gun and told Smith that he wanted him to "screw" the girl. Because he was scared of Childress, Smith said he did as he was told. According to this verbal account, Childress then told Smith to "screw her in the butt." Smith stated that he attempted it but was not sure that he had penetrated her anus. After the second statement, Grissom told Smith that he needed to get the whole account in writing. Grissom indicated that Smith asked him several times, "[I]f I killed the little girl can I still live?"

      At the time Smith made the oral statements, police already had in their possession a report of the murder victim's autopsy. In his description of Logan's injuries, the medical examiner noted a laceration in the anal area and further noted that the anus was noticeably dilated. In the findings addressing sexual assault, the medical examiner noted there were injuries to the mouth, external genitalia, and anus.

      Smith filed a motion to suppress the written and oral confessions on the grounds that they were involuntarily given and that the oral statements were not admissible under article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 1979 & Vernon Supp. 1993).

ADMISSIBILITY OF ORAL STATEMENTS

      Section 3(a) of article 38.22 makes in-custody oral confessions generally inadmissible. Id. art. 38.22, § 3(a). However, section 3(a) "shall not apply to any statement which contains assertions of fact or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed." Id. § 3(c) (emphasis added).

      In considering the admissibility of an oral statement under the exception in section 3(c), the crucial questions are: "Did appellant's statement assert facts, previously unknown to the police, which were later found to be true, and, if so, does this statement show appellant is guilty of the offense for which he is charged?" Almanza v. State, 839 S.W.2d 817, 821 (Tex. Crim. App. 1992). "Found to be true" means facts the police are unaware of at the time of the oral confession but are later, after the confession, found to be true. Romero v. State, 800 S.W.2d 539, 544-45 (Tex. Crim. App. 1990) (quoted in Almanza, 839 S.W.2d at 820). An oral statement's reliability under the exception in section 3(c) is established by the later discovery of previously unknown evidence independently verifying the oral statement. Almanza, 839 S.W.2d at 821. The facts asserted must be something more than a mere assertion of guilt. Id.

FINDINGS AND CONCLUSIONS

      In findings and conclusions filed in Cause No. 92-5-C, the court stated that both the written and oral confessions were freely and voluntarily given and were not obtained by a denial of due process. It further found that the oral statements led to the discovery of evidence that was not known to police officers at the time the statements were made—i.e., that the victim had been sexually assaulted in the anus. The court also found that Detective Grissom, at the time he talked with Smith in the McLennan County jail on December 17, was familiar with the Logan case and knew that an autopsy had been performed on the body, but that neither he nor Smith were aware that the autopsy report contained evidence supportive of Smith's statement that he had or had attempted anal intercourse with the murder victim.

POINTS ON APPEAL

      Smith raises two points on appeal. He claims that the court erred in admitting his oral statements because they did not contain any facts or circumstances which the officers did not know or should not have already known, and that no facts asserted in the oral statements were thereafter verified and found to be true. Smith asserts in point two that there is no evidence to verify the facts asserted in the statements. We review these points attacking the court's findings under the rules in Romero, 800 S.W.2d at 543-44.

WAIVER

      The State first argues that Smith waived any complaint about the admissibility of the oral statements because the motion to suppress was filed, presented, and denied in Cause No. 91-378-C, the prior cause that was later dismissed. Thus, the State contends that Smith failed to comply with Rule 52(a) by not formally presenting the motion and having it ruled on again in the second cause, the one being appealed. See Tex. R. App. P. 52(a).

      The court took judicial notice of all matters, motions and hearings under the original cause number and allowed those records to be included in Cause No. 92-5-C, the cause in which Smith now challenges his murder conviction. See Tex. R. Crim. Evid. 201; Turner v. State, 733 S.W.2d 218, 222 (Tex. Crim. App. 1987) (holding that the trial court may take judicial notice of its own records in a proceeding involving the same party). Rule 201 does not change this established practice. Id. Judicial notice takes the place of and is legally equivalent to evidentiary proof. Legg v. State, 594 S.W.2d 429, 432 (Tex. Crim. App. [Panel Op.] 1980). Its purpose is to save time in the proof of facts not in controversy. James v. State, 546 S.W.2d 306, 310 (Tex. Crim. App. 1977).

      When the court took judicial notice of the proceedings in the prior cause involving Smith, it thereby dispensed with the necessity of reoffering the evidence introduced in the hearing on the motion to suppress in the first cause and ruling on the motion. See Legg, 594 S.W.2d at 432. Therefore, Smith did not waive any complaint relating to the denial of the motion by not presenting the motion to suppress in the second cause and obtaining an adverse ruling on it.

       Smith consented in writing to waive the appearance of witnesses, the introduction of live testimony, and judicially confessed to the murder as a part of the negotiated plea. A judicial confession and signed stipulation and consent to testimony and evidence, however, does not waive appellate review of the denial of a motion to suppress. Morgan v. State, 688 S.W.2d 504, 507 (Tex. Crim. App. 1985). Nor does pleading guilty to a lesser-included offense prevent appellate review of pretrial motions heard before the charge is reduced. McKenna v. State, 780 S.W.2d 797, 799 (Tex. Crim. App. 1989). Accordingly, we reject the State's contention of waiver.

SMITH'S POSITION

      Some evidence exists to indicate that, at the time Smith made the oral statements, Detective Grissom may not have had personal knowledge of the contents of the autopsy report describing injuries to the victim's anus. Nevertheless, Smith argues that such knowledge must be imputed to him. He contends that this court must consider the collective knowledge of all law enforcement personnel, that the medical examiner's office is the agent of law enforcement, and that whatever the medical examiner knew should be imputed to Grissom. Thus, Smith contends that his oral statements were not admissible under article 38.22 because police never discovered evidence, previously unknown to them, verifying the truth of his assertions.

                                                  STATE'S POSITION

      The State contends that the origin and significance of the injuries to the anal area, as reflected in the autopsy report, were unknown to police when Detective Grissom questioned Smith. Thus, according to the State, law enforcement officials were able to identify the origin of the anal contusions and confirm them as having resulted from the admitted acts of Smith, thus verifying the facts or circumstances contained in Smith's statements that conduced to establish his guilt. See Chase v. State, 508 S.W.2d 605, 607-09 (Tex. Crim. App. 1974), overruled on other grounds, Ex parte Trahan, 591 S.W.2d 837, 841 (Tex. Crim. App. 1979) (police already had plywood found at the murder scene in their possession when defendant orally admitted that it came from his brother's room at home). The State argues, therefore, that Smith's statements were admissible because they "contained assertions of fact" establishing the origin of the injuries "that are found to be true," as borne out by the contusions to the anal area reported in the autopsy results. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c).

DISPOSITION

      What Smith orally asserted was that he either had or attempted to have anal intercourse with the murder victim. Did he orally assert facts, previously unknown to police, which were later found to be true, and, if so, did the asserted facts show he is guilty of the offense charged? These are the pivotal questions. See Almanza, 839 S.W.2d at 821.

      Were the asserted facts previously unknown to police? They already had in their possession the autopsy results showing injuries to the victim's anal area. Police can possess evidence and yet still be unaware of its origin or significance. Chase, 508 S.W.2d at 609. That police already knew of the anal injuries did not mean that the origin and cause of the injuries were already conclusively known. See id. We hold that the evidence is sufficient to support the finding that Smith asserted facts previously unknown to police—that he sexually assaulted the murder victim.

      Certainly, if the facts orally asserted were later found to be true, they would show Smith's guilt of the offense charged.

      The remaining dispositive question, therefore, is whether the asserted facts—i.e., Smith's completed or attempted anal intercourse—were later found to be true. See Romero, 800 S.W.2d at 544-45. Asked another way, subsequent to the oral statements, did police discover evidence previously unknown to them that independently verified the truth of the asserted facts? See Almanza, 839 S.W.2d at 821. This is where the facts fall short of the test in Almanza.

      Police knew of the injuries to the victim's anal area when Smith gave his oral confession. What was unknown to them was the cause or origin of those injuries, which Smith's oral statements established. After the statements were made, however, police never discovered evidence, previously unknown to them, that independently verified Smith's assertion that he had anal intercourse or attempted anal intercourse with the murder victim. Compare, Chase, 508 S.W.2d at 609 (police subsequently verified by independent evidence, previously unknown to them, that the plywood in their possession was indeed from the bedroom wall of defendant's brother).

      We reject the State's contention that the autopsy results were unknown to police at the time Smith made his oral statements because Detective Grissom was not then personally aware of the findings in the autopsy report. To hold otherwise would allow police, by intentionally withholding from the questioning officer knowledge of evidence already in their possession, to elude the requirement that an oral confession must be independently verified by evidence discovered subsequently to the statement. Romero, 800 S.W.2d at 544-45.

      Applying the stringent criteria for determining the reliability of an oral statement under section 3(c), there is no evidence to support the finding that Smith's oral statements led to the discovery of previously unknown evidence independently verifying the truth of his oral assertion. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c). Without verification by independent evidence subsequently discovered, Smith's assertion was nothing more than an oral confession of guilt, which is inadmissible under the exception in section 3(c). See Almanza, 839 S.W.2d at 821. Thus, the court erred when it denied the motion to suppress the oral statements because they were not admissible under the exception in section 3(c). Accordingly, we sustain points one and two.

      We remand for a new trial, however, because the evidence—both properly and improperly admitted—is sufficient to support Smith's conviction. See Riley v. State, 825 S.W.2d 699, 701 (Tex. Crim. App. 1992) (holding that the proper appellate remedy is to remand if properly and improperly admitted evidence is sufficient to support conviction). The judgment is therefore reversed and the cause is remanded for a new trial.

                                                                                     BOB L. THOMAS

                                                                                     Chief Justice

Before Chief Justice Thomas,

      Justice Cummings, and

      Justice Vance

Reversed and remanded

Opinion delivered and filed June 2, 1993

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