Elton MacK Maxie, Jr. v. State

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-02-370 CR ____________________

ELTON MACK MAXIE, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 15,832

---

MEMORANDUM OPINION

A jury convicted Elton Mack Maxie, Jr. of aggravated robbery and sentenced him to forty years' confinement in the Texas Department of Criminal Justice, Institutional Division. Maxie appeals raising two issues.

In issue one, appellant argues his right to due process under the Texas Constitution was violated when the State lost "potentially useful evidence." The record reflects the security tape from the store could not be located at the time of trial. Still prints were made from the tape and were included in the State's file and made available to defense counsel. The State informed the trial court that he and defense counsel had discussed it and agreed that "it neither inculpates nor exculpates the defendant." Defense counsel did not disagree with the State's assertion. Accordingly, we find the issue has not been preserved for review. See Tex. R. App. 33.1. Issue one is overruled.

Issue two contends the trial court erred in denying Maxie's motion to suppress his statement to police. Maxie claims the statement was involuntary and inadmissible because it was obtained in response to a promise. See Freeman v. State, 723 S.W.2d 727, 730 (Tex. Crim. App. 1986). Detective Sanderson testified at the hearing on motion to suppress that no promises were made. Maxie's statement contains the declaration "I have not been offered anything or have any promises been made to me to make this statement." In a hearing on a motion to suppress, the trial court is the sole finder of fact and we will not disturb the trial court's ruling where supported by the record. See Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). The evidence presented at the pretrial hearing was sufficient to support the trial court's denial of the motion to suppress. Because the trial court did not abuse its discretion, issue two is overruled.

The judgment of the trial court is affirmed.

PER CURIAM

Submitted on August 25, 2003

Opinion Delivered September 3, 2003

Do not publish

Before McKeithen, C.J., Burgess, and Gaultney, JJ.