Keith Klepper v. State

  Opinion issued June 11, 2009  

In The  

Court of Appeals

For The  

First District of Texas

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NO. 01-07-00783-CR

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KEITH KLEPPER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 42429A

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MEMORANDUM OPINION

A jury convicted appellant, Keith Klepper, of murder and assessed punishment at 30 years' confinement. In three points of error, appellant contends the trial court erred by: (1) denying his motion to suppress a confession given to police in Alabama; (2) denying his motion to suppress a confession given to police in Texas; and (3) refusing to instruct the jury on a lesser-included offense. In a fourth point of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm.

BACKGROUND

The Shooting

On May 17, 2005, a girl named Gemma called Charlie Zehler and told him that some of her friends were interested in buying some marihuana. Charlie told Gemma "just to send her friends over" to his house. Soon after, a girl named Jesse, appellant, and appellant's codefendant, James Taylor, arrived at appellant's house, which he shared with his mother, Patricia, and sister, Hope. Also present in the house at the time was Charlie's friend, Paul Martz. While Charlie, appellant and Taylor were discussing the marihuana and its price, appellant cocked a gun and pointed it in Charlie's face. Paul tried to help Charlie, but Taylor also pulled a gun and pointed it at Paul. Charlie and appellant began to struggle as Paul fled the room. Taylor then turned his gun on Charlie as well. Charlie fell to the floor, and appellant said, "just shoot him, just shoot him. Taylor began trying to grab Charlie's marihuana. With Taylor distracted, Charlie grabbed a sword that he had in his closet and swung it at appellant, striking him in the hip. Appellant fired his gun at Charlie, but missed. As appellant and Taylor fled the house, Charlie's mother, Patricia, grabbed at Taylor, who turned around and shot her. Patricia died later that evening from a gunshot wound to the forehead.

The Alabama Confession

Later that same day, in Gulf Shores, Alabama, appellant's father contacted the Gulf Shores Police Department and told them that he wanted to bring his son in to discuss a murder that had been committed in Sugar Land, Texas. The next afternoon, appellant, his father, and his stepmother met with Officer Franklin of the Gulf Shores Police Department. Officer Franklin met with the three in the officers' break room. Appellant's father did most of the talking, and he relayed to Officer Franklin what appellant had told him about the shooting.

Officer Franklin and appellant then went into an interview room so that they could talk about what happened in Sugar Land. Officer Franklin was in plain clothes and did not carry his weapon. Franklin explained to appellant that he was not under arrest, that Franklin did not have a warrant for appellant's arrest, and that it was Franklin's understanding that appellant was there of his own free will. Franklin then read appellant his Miranda ⁽¹⁾ warnings. Appellant said that he understood the warnings, which he then initialed.

Franklin talked with appellant for approximately an hour and then took a break to change the tape on the machine that was recording their conversation. During the break, appellant went to the restroom and visited with his parents, who were still in the break room. The entire interview lasted one hour and 40 minutes, and, during the course of the interview, appellant admitted that he knew Taylor had a gun when they went to Charlie's house.

After the interview was concluded, Officer Franklin contacted the Sugar Land Police Department and told them about the interview. The Sugar Land Police Department then prepared a warrant for appellant's arrest.

The Texas Confession

On June 2nd, Detective Thompson of the Sugar Land Police Department, drove to Alabama to pick up appellant. When they arrived back in Texas, Thompson unhandcuffed appellant and took him to an interview room. Thompson made the following statements on the video before obtaining appellant's confession:

Today is June 3rd. It's about 12:15 a.m. on June 3rd, and I need to read something to you real quick before I get started.

Keith, you have the right to remain silent and not make any statement at all. Any statement you make may be used against you at your trial. Any statement you make you may be used as evidence against you in court. You have the right to have a lawyer present to advise you during any questioning. If you are unable to employ a lawyer, one will be appointed to you. You have the right to terminate any interview at any time.

Having read you your rights, do you wish, by shaking you head up and down, saying "yes," or side to side, saying "no," to tell your side of the story?

Appellant responded, "yes, sir," and then gave a statement to police that lasted approximately 30-40 minutes. In this statement, appellant admitted that he went to the house with the intention of robbing Charlie by taking his marihuana.

MOTION TO SUPPRESS CONFESSIONS

In his first two points of error, appellant contends the trial court erred in denying his motion to suppress both his Alabama confession and his Texas confession.

Standard of Review

We review the trial court's ruling on a motion to suppress evidence for abuse of discretion, using a bifurcated standard. See Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give "almost total deference" to the trial court's findings of historical fact that are supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Id. at 89. We review de novo the trial court's determination of the law and its application of law to facts that do not turn upon an evaluation of credibility and demeanor. Id. When the trial court has not made a finding on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the trial court's ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)

Alabama Confession

Appellant contends the Alabama confession was taken in violation of his rights under Miranda and Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2006). The State responds that Miranda and article 38.22 are not applicable because appellant was not in custody at the time he gave his statement. We agree.

Custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. The determination of custody is entirely objective, and the subjective intent of law-enforcement officials is not relevant unless communicated through their words or actions to the suspect. Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1966). Station-house questioning, as occurred here, does not in and of itself constitute custodial interrogation. Id. at 255. Simply being the focus of a criminal investigation does not amount to being in custody. Martinez v. State, 131 S.W.3d 22, 32 (Tex. App.--San Antonio 2003, no pet.) When a person voluntarily accompanies officers to an interview, and he knows or should know that the police officers suspect he may be implicated in the crime under investigation, he is not "restrained of his freedom of movement" and is not in custody. Shiftlet v. State, 732 S.W.2d 622, 630 (Tex. Crim. App. 1985).

However, an interview that begins as noncustodial may escalate into a custodial interrogation because of police conduct during the encounter. Dowthitt, 931 S.W.2d at 255. In determining whether a noncustodial encounter has escalated into custodial interrogation, we look to the four factors discussed in Dowthitt: (1) when the suspect is physically deprived of his freedom of action in any significant way; (2) when law enforcement officers tell a suspect that he cannot leave; (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted; and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave. Id. at 255.

In this case, appellant was not deprived of his freedom in any significant way. He came to the police station of his own accord and without any request from the police. While at the station, he first talked with police in the break room and then later in an interview room. Appellant was never told that he could not leave. In fact, Officer Franklin specifically told appellant that he was not under arrest and that there was no warrant for his arrest. There were no circumstances indicating to appellant that he could not leave. Officer Franklin was not in uniform and did not carry a weapon. Appellant and his family were never placed under guard. Appellant was allowed to take breaks and to visit with his family during those breaks. The encounter was not unreasonably long--just one hour and 40 minutes. Further, police did not have probable cause to arrest appellant until after he made his statement. In fact, after being contacted by appellant about his desire to talk to them, Gulf Shores Police had to verify that there had been a shooting in Texas.

Therefore, the record supports the State's assertion that appellant was not in custody when he gave his statement to Gulf Shores Police. As such, Miranda and article 38.22 are not applicable.

Thus, the trial court did not abuse its discretion in denying appellant's motion to suppress the Alabama statement. Accordingly, we overrule point of error one.
Texas Confession

Appellant also argues that his Texas confession was involuntary for the same reasons that he gave for suppressing his Alabama confession. He admits that he was read his Miranda and statutory warnings, but contends that his waiver of those rights was not voluntary. Specifically, appellant argues that agreeing to "tell his side of the story" was not a voluntary waiver of his Miranda rights. The State concedes that police obtained the Texas confession while appellant was in custody, but argues that appellant was properly given his Miranda and statutory warnings and that his subsequent statement was not involuntary.

Any waiver of Miranda rights on behalf of an accused must be made knowingly, intelligently, and voluntarily. See Miranda, 384 U.S. at 475, 86 S. Ct. at 1628. Whether an accused has effectively waived his rights has two distinct inquiries: first, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 1141 (1986). Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Id. An express waiver is not necessary; waiver may be inferred from the actions and words of the person interrogated. North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1758 (1979); Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000). We consider the totality of the circumstances when determining whether an accused has waived his Miranda rights. Fare v. Michael C., 422 U.S. 707, 725, 99 S. Ct. 2560, 2571-72 (1979). Simply making an inculpatory statement cannot alone indicate a waiver of the right to remain silent, but a statement of "desire to talk" to police, accompanied by an inculpatory statement can show the waiver of the right to remain silent. See Butler, 441 U.S. at 372-73, 99 S. Ct. at 1756-57; McDonald v. Lucas, 677 F.2d 518, 521-22 (5th Cir. 1982).

First, nothing in the record indicates that appellant was coerced, intimidated, or deceived into giving a statement. Detective Thompson testified that he made no promises or threats to appellant. Appellant, in fact, does not argue that he was coerced, threatened, or deceived into waiving his rights.

Second, the recorded confession clearly shows that Detective Thompson read appellant his Miranda and statutory warnings, and, immediately after being told that he had the right to remain silent and that anything he said could be used against him in court, appellant verbally acknowledged that he wished to "tell his side of the story." There was also evidence in the record that during the ride from Florida to Texas, appellant indicated that he wanted to talk about the event and was told by Detective Thompson that he would have the opportunity to tell his side of the story later. From this sequence of events, the trial court could have reasonably concluded that appellant was aware of his rights, the consequences of waiving those rights, and that appellant did, in fact, waive his rights by choosing to continue to speak with police after being warned that he did not have to do so.

Because he had been in police custody for several days, there was no issue of intoxication impairing appellant's judgment. Additionally, there was no issue of sleep deprivation. Detective Thompson testified that appellant slept for much of the trip from Alabama to Texas. Despite appellant's claims that he suffers from attention deficit hyperactivity disorder and bipolar disorder and has only a ninth grade education, in appellant's statement, he appears coherent and fully able to understand the questions. His responses are articulate. Thompson testified that appellant appeared to understand the warnings that were read to him and that he never indicated that he wished to quit talking or to have an attorney present.

Thus, considering the totality of the circumstances, we cannot conclude that the trial court abused its discretion in ruling that appellant's Texas statement was voluntarily given after waiving his Miranda rights. Accordingly, we overrule point of error two.

LESSER-INCLUDED OFFENSE

In point of error three, appellant contends the trial court erred by refusing to instruct the jury on the lesser-included offense of manslaughter. Specifically, he argues that there was evidence that Taylor fired his gun recklessly and without the specific intent required for murder.

We use a two-step analysis to determine whether an appellant is entitled to a lesser-included offense instruction.    Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007)  ; Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). First, the lesser offense must come within article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). An offense is a lesser included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. See Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).   Our analysis does not depend on the evidence to be produced at the trial, but is performed by comparing the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense. Hall, 225 S.W.3d at 535-36.    

Second, some evidence must exist in the record that would permit a jury to rationally find that if the appellant is guilty, he is guilty only of the lesser offense. Hall, 225 S.W.3d at 536;   Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672-73. The evidence must be evaluated in the context of the entire record. Moore, 969 S.W.2d at 8. There must be some evidence from which a rational jury could acquit the appellant of the greater offense while convicting him of the lesser-included offense. Id. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Id. Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Hall, 225 S.W.3d at 536  . Relying on Kuykendall v. State, 609 S.W.2d 791, 796 (Tex. Crim. App. 1981), appellant argues that manslaughter can be a lesser-included offense of felony murder because manslaughter requires only a reckless mens rea rather than an intentional mens rea. He further argues that the evidence raised the issue of manslaughter because there was evidence that Taylor acted recklessly, not intentionally, when he turned and fired towards the house without first aiming.

It is true that Kuykendall holds that criminally negligent homicide is a potential lesser-included offense of felony murder when the underlying felony is a robbery. See 609 S.W.2d at 797-98. Because manslaughter and criminally negligent homicide differ only in the required mens rea, ⁽²⁾ it follows that, under Kuykendall, manslaughter is also a potential lesser-included offense under similar circumstances. Jones v. State, 100 S.W.3d 1, 6 (Tex. App.--Tyler 2002, pet. ref'd).

In Kuykendall, the court relies on the theory of transferred intent to supply a mens rea for the murder committed during the robbery. 609 S.W.2d at 795-96. In other words, the culpable mental state for the act of murder was supplied by the mental state accompanying the underlying robbery felony giving rise to the murder. Id. Because the robbery transferred an intentional mens rea to the murder, criminally negligent homicide, which contained a lesser mens rea, was a potential lesser-included offense. Id. at 796. In so holding, the Kuykendall court relied on Rodriguez v. State, which stated:

[T]he culpable mental state for the act of [felony] murder is supplied by the mental state accompanying the underlying committed or attempted felony giving rise to the act. The transference of the mental element establishing criminal responsibility for the original act to the resulting act conforms to and preserves the traditional mens rea requirement of the criminal law.

548 S.W.2d 26, 28-29 (Tex. Crim. App. 1977).

However, the Court of Criminal Appeals has overruled "that portion of the holding in Rodriguez that a culpable mental state is required for 'the act of murder' in a felony-murder prosecution and that the mental state of the underlying felony supplies this culpable mental state." Lomax v. State, 233 S.W.3d 302, 307 (Tex. Crim. App. 2007). The Lomax court expressly disavowed the theory of transferred intent and held that "any culpable mental state accompanying the underlying felony cannot supply the culpable mental state for 'the act of murder,' because the very nature of the felony-murder rule is that there is no culpable mental state 'for the act of murder.'" Id. at 306-07. The court held that section 19.02(b)(3)--the felony murder statute--plainly dispenses with a culpable mental state. Id. at 305.

With this in mind, we compare the elements of the offense as they are alleged in the indictment or information with the elements of the potential lesser-included offense. Hall, 225 S.W.3d at 535-36.  

Under the indictment in this case, the State was required to show that appellant:

(1) intentionally or knowingly committed or attempted to commit the offense of aggravated robbery by then and there, while in the course of committing theft and with the intent to obtain and maintain control of property of Charles Zehler, to wit: United States Currency or marijuana without the effective consent of the said Charles Zehler and with intent to deprive the said Charles Zehler of said property, did then and there by using and exhibiting a deadly weapon, to wit: a firearm intentionally and knowingly threaten Charles Zehler with imminent bodily injury and death, and

(2) while in the course of and furtherance of the commission or attempted commission of said offense and while in immediate flight from the commission of or the attempt to commit said offense did commit an act clearly dangerous to human life, to wit: discharge a firearm in the direction of Patricia Zehler and

(3) did thereby cause the death of Patricia Zehler.

In contrast, the statutory elements of manslaughter would require proof that appellant recklessly caused the death of Patricia Zehler. See Tex. Penal Code Ann. § 19.04 (Vernon 2003) (Emphasis added).

As made clear by Lomax, felony murder attaches no culpable mental state to the death of an individual. See 223 S.W.3d at 306-07. Therefore, manslaughter actually requires proof of a higher culpable mental state for the death of an individual than felony murder requires. As such, the elements of the requested lesser-included offense are not established by proof of the same or less than all of the facts required to establish the commission of the charged offense, nor does the proposed lesser-included offense differ from the offense charged only in the respect that a less culpable mental state suffices to establish its commission. See Tex. Code Crim. Proc. Ann. art. 37.09.

Under prong one of the test set forth in Hall, manslaughter cannot be a lesser-included offense of felony murder. Thus, we need not address prong two of Hall. See Hall, 225 S.W.3d at 535-36.  

We overrule point of error three.

SUFFICIENCY OF THE EVIDENCE

Standards of Review & Applicable Law

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses because this is the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); see also Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Adelman, 828 S.W.2d at 422. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. See Matson, 819 S.W.2d at 843.

In a factual-sufficiency review, we view all of the evidence, both for and against the finding, in a neutral light and set aside the verdict only if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., if the verdict seems "clearly wrong and manifestly unjust" or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We will reverse the jury's verdict only if the record clearly shows that a different result is required to prevent a manifest injustice. See id. at 416-17; see also Johnson v. State, 23 S.W.3d 1, 12 (Tex. Crim. App. 2000). In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's implicit credibility determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The jury is free to accept or to reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Reconciling conflicting testimony is within the exclusive province of the jury. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001); see also Cleveland v. State, 177 S.W.3d 374, 380 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd).  

To convict appellant of the charged offense, the State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly committed or attempted to commit the offense of aggravated robbery, and, in the course of and furtherance of the commission or attempted commission of aggravated robbery, or in immediate flight from the commission or attempted commission of aggravated robbery, committed or attempted to commit an act clearly dangerous to human life, which cause the death of Patricia Zehler. See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2006). The jury was also charged on the law of parties. See Tex. Penal Code Ann. § 7.02 (Vernon 2006).

Legal Sufficiency  

The jury heard evidence that appellant and Taylor went to Charlie's house intending to rob him by taking his marihuana. While there, appellant and Taylor pulled and fired their weapons during a confrontation with Charlie. As they were fleeing, Taylor turned and fired a shot, which struck and killed Patricia Zehler. Appellant confessed to his participation in the robbery and to the fact that he knew that Taylor was armed. Appellant was seen after the robbery with marihuana that he took from Charlie's house. He also had a wound that matched the injury Charlie said that he had inflicted on the perpetrator with a sword. From this evidence, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Drichas, 175 S.W.3d at 798. Accordingly, we overrule appellant's legal sufficiency challenge.  

Factual Sufficiency  

In support of his claim that the evidence is factually insufficient, appellant argues that, while he knew Taylor was armed, he had no reason to believe that Taylor would aimlessly discharge his weapon as they were fleeing.

Relying on Tippitt v. State, 41 S.W.3d 316, 325 (Tex. App--Fort Worth 2001, no pet.), appellant argues that the evidence is insufficient to show that he should have anticipated that the shooting was a possible result of his and Taylor's agreement to rob Charlie. We disagree. Tippitt is distinguishable because, in that case, there was no evidence to show that the defendant knew that his codefendant was armed when they committed the robbery. Id. at 325-26. In this case, appellant admitted that he knew that Taylor was armed. Indeed, appellant himself was armed and fired the first shots.

Therefore, we cannot say that the verdict seems clearly wrong and manifestly unjust or the proof of guilt is against the great weight and preponderance of the evidence. See Flores v. State, 681 S.W.2d 94, 96 (Tex. App.--Houston [14th Dist.] 1984) (holding murder should have been anticipated as a possible result of burglary when appellant knew companion had a gun), aff'd, 690 S.W.2d 281 (Tex. Crim. App. 1985). Accordingly, we overrule appellant's factual sufficiency challenge.

We overrule point of error four.  

CONCLUSION

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.

Do not publish. Tex. R. App. P. 47.2(b).

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