Stephen Lloyd Calhoun v. State

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Stephen Lloyd Calhoun

Appellant

Vs.                   No.  11-02-00071-CR B Appeal from Howard County

State of Texas

Appellee

The jury convicted appellant of murder and assessed his punishment at 45 years confinement and a $10,000 fine. Appellant brings two issues in which he argues that the trial court erred in charging the jury and in finding his statement to the police was voluntary.  We affirm.

The record shows that on July 15, 2001, Officer J. W. Fryar of the Big Spring Police Department was called to the scene of an unattended death. Officer Fryar testified that, when he arrived, appellant was standing at the door and was saying that Ahis girlfriend was dead.@ Officer Fryar said that it appeared that the victim had been dead for some time because rigor mortis had set in. Officer Fryar testified that the victim had a cut above her eye, that it appeared someone had Aput a cigarette out@ on the victim=s wrist, that there was a cigarette burn on the victim=s cheek, and that there was fecal matter around the victim.

Clifton Griffin testified that he was at appellant and the victim=s apartment on July 14, 2001, and that they were all drinking beer and watching television.  Griffin said that appellant and the victim had a half gallon of vodka and that they began arguing over the vodka.  Griffin stated that the victim was sitting on the floor and that appellant began hitting her in the face with his fist. Griffin Acouldn=t put up with that no more,@ and he left the apartment around 11:30 p.m.  Griffin returned to the apartment the following  morning. The victim was lying on the floor, and appellant was lying in the bed.  Griffin left to buy beer; and, when he returned, appellant got out of bed. Appellant went to the victim; touched her; and said:  AOh.  She=s cold. She=s dead.@   Appellant then told Griffin that he needed some of the beer and that Ahe was going to get life for it.@

Dr. Jerry Douglas Spencer, Chief Medical Examiner for Lubbock County, testified that he performed an autopsy on the victim and that she suffered a number of injuries.  Dr. Spencer said that the victim had a number of contusions, lacerations on her face, a five-by-five inch bruise on her back, a fractured rib, and a tear in her spleen.  Dr. Spencer stated that the victim died as a result of blunt force injuries to the chest and abdomen that resulted in a large amount of bleeding from the spleen.

Appellant testified at trial that he remembered watching television with the victim and some friends and that they were drinking beer and vodka.  Appellant said that everyone left except for Griffin.  Appellant testified that he Akind of@ remembered arguing with the victim about the vodka.  Appellant testified that he did not remember hitting the victim that night, although he had slapped her on previous occasions and she had also hit him. Appellant said that they would often drink, argue, go to sleep, and then make up.  Appellant further testified that the victim had fallen at a neighbor=s house and that, on the night of the offense, she said that she had fallen outside.

In his first issue on appeal, appellant complains that the trial court erred in refusing his requested instruction on the lesser offense of manslaughter.  A trial court must submit a jury instruction on a lesser included offense if the offense is included within the proof necessary to establish the offense charged and if there is some evidence in the record Athat would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense.@ Arevalo v. State, 943 S.W.2d 887, 889 (Tex.Cr.App.1997)(quoting  Rousseau v. State, 855 S.W.2d 666, 672‑73 (Tex.Cr.App.), cert. den=d,  510 U.S. 919 (1993)); Pitre v. State, 44 S.W.3d 616, 621-22 (Tex.App. ‑ Eastland 2001, pet=n ref=d).  Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser included offense, then the charge must be given.  See Medina v. State, 7 S.W.3d 633, 638 (Tex.Cr.App.1999), cert. den=d,  529 U.S. 1102 (2000).  In order to raise the lesser included offense, the evidence must affirmatively raise the issue; it is not enough that the jury could simply disbelieve Acrucial evidence pertaining to the greater offense.@ Bignall v. State, 887 S.W.2d 21, 24 (Tex.Cr.App.1994); Pitre v. State, supra.  Manslaughter is a lesser included offense of murder.  Moore v. State, 969 S.W.2d 4, 9 (Tex.Cr.App.1998). Therefore, we must determine whether there was some evidence that appellant was guilty only of manslaughter.

A person commits the offense of manslaughter if he Arecklessly causes the death of an individual.@  TEX. PENAL CODE ANN. ' 19.04(a) (Vernon 1994).  A person acts recklessly when he Ais aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.@  TEX. PENAL CODE ANN. ' 6.03(c) (Vernon 1994).  Appellant testified at trial that he did not hit the victim.  Appellant said that he had no recollection of burning the victim or kicking the victim.  When questioned by the State about the bruises and cuts on the victim=s body, appellant responded:  AI didn=t do it.@ Appellant testified that he was intoxicated on the night of the offense and that the victim had hit him on previous occasions.   However, this testimony does not permit a jury to find that he was only guilty of manslaughter.  Appellant has not shown that the trial court erred in denying his request for an instruction on the lesser offense of manslaughter.  Appellant=s first issue on appeal is overruled.

In his second issue on appeal, appellant complains that the trial court erred in finding that his statement to the police was voluntary.  Appellant gave a written statement to Officer Jim Rider  in which he admitted hitting the victim with his fist and kicking her in the stomach. Appellant also said in his statement that he burned the victim with his cigarette.  The trial court held a hearing on appellant=s motion to suppress his written statement. The trial court denied appellant=s motion to suppress, and the statement was read to the jury during the trial. 

The standard of review for the trial court's ruling on a motion to suppress is abuse of discretion.   Oles v. State, 993 S.W.2d 103, 106 (Tex.Cr.App.1999). When reviewing the trial court=s actions in a suppression hearing, we give complete deference to the trial court=s determination of historical facts.   Guzman v. State, 955 S.W.2d 85, 89 (Tex.Cr.App.1997); Davila v. State, 4 S.W.3d 844 (Tex.App. - Eastland 1999, no pet=n). We also give deference to the trial court=s rulings on mixed questions of law and fact when those rulings turn on an evaluation of credibility and demeanor. Guzman v. State, supra; Davila v. State, supra.  Where such rulings do not turn on an evaluation of credibility and demeanor, we review the trial court=s actions de novo.  Guzman v. State, supra; Davila v. State, supra. 

Appellant argues that his statement was involuntary because he was intoxicated at the time he gave the statement and because he had a reasonable belief that he was in custody at the time the statement was made. Officer Milton Horton testified at the hearing on appellant=s motion to suppress  that he had another officer transport appellant to the police station so that the police could later conduct an interview.  Officer Horton stated that, if appellant had said ANo,@ the officer would not have taken appellant to the police station.  Pursuant to the standard procedures of the Big Spring Police Department, appellant was taken to the police station in handcuffs; however, the handcuffs were removed when appellant was interviewed.  Officer Horton said that appellant was advised that he was not under arrest and that appellant=s Miranda^[1] rights were read to him.  Officer Horton stated that appellant did not appear to be intoxicated at the time of the interview.  Officer Horton smelled a faint odor of alcohol when he initially encountered appellant at 12:45 p.m., but he did not detect the odor of alcohol when appellant gave his statement at approximately 3:00 p.m.  After appellant gave his statement, the officers returned appellant to his residence.

Officer Rider testified that he read the Miranda warnings to appellant twice.  Officer Rider said that he told appellant he was not under arrest. Officer Rider would have taken appellant home if he had requested to leave.  Officer Rider stated that he did not smell alcohol on appellant and that appellant Aappeared to understand exactly what was going on.@ Officer Rider testified that he would have waited to conduct the interview if appellant had indicated he was intoxicated.

Appellant testified at the hearing on his motion to suppress that his statement was not freely and voluntarily given and that he was Adrunk@ at the time he gave the statement.   Appellant said that he was handcuffed when taken to the police station, but that the handcuffs were removed before he gave his statement.  Appellant stated that Officer Rider told him to sign the statement and then he would take appellant home.   Appellant asked Officer Rider:  AYou mean I=m not under arrest?@ Appellant said that he was informed he was not under arrest before he signed the statement.  Appellant has not shown that the trial court abused its discretion in denying his motion to suppress his written statement.  Appellant=s second issue on appeal is overruled.

The judgment of the trial court is affirmed.

February 20, 2003                                                       TERRY McCALL

Do not publish.  See TEX.R.APP.P. 47.2(b).    JUSTICE

Panel consists of: Arnot, C.J., and                                

Wright, J., and McCall, J.

Published May 22, 2003, pursuant to granting

of Appellant=s motion for publication.

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).