Daniel Travis Durham v. State

Affirmed and Memorandum Opinion filed January 21, 2021.
In The
Fourteenth Court of Appeals
NO. 14-18-00152-CR
DANIEL TRAVIS DURHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1433944
MEMORANDUM OPINION
Appellant Daniel Travis Durham appeals his conviction for murder. After the
jury found appellant guilty, the jury sentenced appellant to fifty years’ confinement.
In three issues on appeal, appellant challenges his conviction. We affirm the trial
court’s judgment.
I. BACKGROUND
At approximately 1:00 a.m., on July 4, 2014, in a West Houston residential
neighborhood, the decedent and his wife noticed the electricity in their home went
off. Within a minute, their generator restored power, at which time they observed
motion sensor lights in the backyard of their home had been activated. Believing
there was an intruder, the decedent instructed his wife to stay in the house, then put
a gun in his pajama pocket and went out the back door.
The decedent’s wife went to the bedroom window, pulled back the blind, and
saw her husband with appellant; she heard her husband tell appellant to get off their
property. She saw appellant take a few steps in the driveway, but then saw appellant
charge at her husband, pushing him into the garage. Because she was scared, she
locked the bedroom door, went into the closet, and called 911 to request police
assistance. While walking to the closet, she heard two gunshots, approximately a
minute apart.
Harris County sheriff’s deputies arrived at the home and discovered decedent
dead in his garage from gunshot wounds.
A description of appellant was broadcast over the deputies’ radio. While in
route to the scene, Deputy Robert Merrow observed appellant with blood on his
clothes, arms, knees, and legs, walking a few blocks from the decedent’s home.
Deputy Merrow approached appellant and advised him that the sheriff’s office
had been dispatched in reference to a weapons disturbance in the area. When Deputy
Merrow asked what appellant was doing in the general area, appellant said he was
taking a walk and visiting his mother. Deputy Merrow asked appellant if he was
injured, and he responded that he was not. Appellant had a cellular telephone in his
2
hand and identification in his pocket. Appellant did not have a weapon in his
possession.
Because Deputy Merrow believed appellant and the clothes appellant was
wearing matched the description being broadcast of the suspect in the weapons
disturbance call, appellant was detained in the back seat of Deputy Merrow’s patrol
car. Deputy Merrow placed bags around appellant’s hands to preserve evidence,
placed him in handcuffs, and returned him to the decedent’s house.
Sergeant Dennis Wolfford, a homicide detective, arrived at decedent’s house
at approximately 3:10 a.m. Appellant was in the back seat of Deputy Merrow’s
patrol car. The murder weapon had not been located.
After removing appellant from the patrol car, Sergeant Wolfford told
appellant that children were going to be waking up soon and he was concerned that
one of them would find the gun. Without reading appellant his Miranda rights,1
Sergeant Wolfford asked appellant one question—where the gun was located.
Appellant responded with the gun’s location—it was in a trash can in front of his
mother’s house. Sergeant Wolfford did not record appellant’s statement at the scene.
A crime scene investigator recovered the gun from the trash can in front of
appellant’s mother’s house, which was less than half a mile from the decedent’s
home. Deputy Merrow transported appellant to homicide unit headquarters.
After starting a video recorder, Deputy Mario Quintanilla read appellant his
Miranda and article 38.22 rights; appellant can be heard and seen waiving those
rights. Sergeant Mark Reynolds and Deputy Quintanilla questioned appellant. The
1
Miranda v. Arizona, 384 U.S. 436 (1966) (expanded and codified in Tex. Code Crim. P. art.
38.22).
3
interview took place over a few hours, during which appellant confessed to killing
the decedent, providing details of the altercation preceding the homicide.
Appellant was charged with murder. After being booked into the Harris
County Jail, records indicate that appellant was seen for a routine intake health
screening on July 4, 2014. Appellant was observed to be alert and responsive and
did not appear to be withdrawing from or under the influence of drugs or alcohol.
Because appellant reported a history of mental illness (schizophrenia and
depression), he was referred for psychiatric assessment. On that same day, the
Mental Health and Mental Retardation Authority (“MHMRA”) conducted an initial
psychiatric assessment, diagnosing appellant with Schizoaffective Disorder and
Polysubstance Dependence; he was prescribed medication to manage his psychiatric
symptoms. The examiner observed appellant to be stable and not in need of
specialized mental health housing. On July 7, 2014, after being reported to have
“behave(d) oddly,” appellant underwent another initial psychiatric assessment. The
assessing psychiatrist added Cocaine Abuse and Alcohol Abuse to appellant’s
diagnostic profile, changed his medication regime, and referred him to housing in
the mental health unit of the jail for stabilization. Appellant refused cognitive
behavior therapy, was discharged from the mental health unit, and moved to
administrative separate housing where he was monitored by MHMRA staff.
In February 2015, the trial court ordered an assessment of appellant’s
competency to stand trial. Upon examination, a psychologist with MHMRA
determined appellant to be incompetent to stand trial. The trial court signed an order
of commitment and transferred appellant to a state mental hospital for psychiatric
treatment and competency restoration.
After a period of observation, in August 2015, a psychologist with Rusk State
Hospital evaluated appellant’s competency and determined him to be competent to
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stand trial. Thereafter, the trial court ordered an evaluation of appellant’s sanity; the
psychologist opined that appellant was sane at the time of the alleged offense.
On February 7, 2018, appellant filed a motion to suppress his statements.
After conducting a suppression hearing on February 9, at which Sergeant Wolfford
testified as to appellant’s statement at the scene, and a video recording of appellant’s
interrogation at the homicide unit was admitted into evidence, the trial court denied
appellant’s motion to suppress both the oral statement made at the scene, and the
subsequent videotaped statement. In regard to the motion to suppress the oral
statement made at the scene, the trial court found that the circumstances fell within
the public safety exception to Miranda. On the motion to suppress the recorded
statement, the trial court found that, based on the totality of the facts, appellant’s
statement was freely and voluntarily given. Additionally, the trial court signed an
order for restoration of competency, finding appellant mentally competent to stand
trial.
A jury trial commenced and, after approximately a week of testimony, the jury
found appellant guilty and sentenced appellant to fifty years’ imprisonment. On
February 20, 2018, the trial court signed its Judgment and Conviction in accordance
with the jury’s verdict.
This appeal timely followed. On August 23, 2018, we entered an abatement
order directing the trial court to reduce to writing its findings of fact and conclusions
of law on the voluntariness of appellant’s statement. On December 17, 2018, the
trial court entered its Findings of Fact and Conclusions of Law and the appeal was
reinstated.
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II. ANALYSIS
Appellant presents the following three issues on appeal:
1) Whether the trial court erred in denying the motion to suppress his
statement made at the scene that led to the recovery of the weapon
because it was taken in violation of his Fifth Amendment privilege
against self-incrimination and Sixth Amendment right to assistance
of counsel under the U.S. Constitution as recognized by Miranda
and article 38.22 of the Texas Code of Criminal Procedure.
2) Whether the trial court erred in denying the motion to suppress his
recorded custodial statement to police due to his mental defect at the
time of the statement.
3) Whether the trial court erred in denying appellant’s request to allow
Dr. Sherry, appellant’s psychiatric expert, to remain in the
courtroom after the witness sequestration rule had been invoked.
A. MOTION TO SUPPRESS
1. STANDARD OF REVIEW
When reviewing a trial court’s ruling on a motion to suppress, we apply an
abuse of discretion standard: we overturn the trial court's ruling only if it is outside
the zone of reasonable disagreement. State v. Cortez, 543 S.W.3d 198, 203 (Tex.
Crim. App. 2018); Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011).
We use a bifurcated standard of review. Ramirez-Tamayo v. State, 537 S.W.3d 29,
35 (Tex. Crim. App. 2017). An appellate court gives almost total deference to the
trial court’s determination of historical facts but conducts a de novo review of the
trial court’s application of the law to those facts. See State v. Kerwick, 393 S.W.3d
270, 273 (Tex. Crim. App. 2013); Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim.
App. 2010). “As the sole trier of fact during a suppression hearing, a trial court may
believe or disbelieve all or any part of a witness’s testimony.” See id. An appellate
court examines the evidence in the light most favorable to the trial court’s ruling.
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See id. A trial court will abuse its discretion only if it refuses to suppress evidence
that is obtained in violation of the law and that is inadmissible under Texas Code of
Criminal Procedure article 38.23. See id.When, as here, the trial court has made express findings of fact, an appellate
court views the evidence in the light most favorable to those findings and determines
whether the evidence supports the fact findings. See State v. Rodriguez, 521 S.W.3d
1, 8 (Tex. Crim. App. 2017); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.
App. 2010). “We will sustain the trial court’s ruling if that ruling is ‘reasonably
supported by the record and is correct on any theory of law applicable to the case.’”
Valtierra, 310 S.W.3d at 447–48.
2. AT-THE-SCENE STATEMENT
In his first issue, appellant contends that the trial court erred in denying the
motion to suppress his statement made at the scene which led to the recovery of the
gun because the interrogation was in violation of his Fifth Amendment privilege
against self-incrimination and Sixth Amendment right to assistance of counsel2
under the U.S. Constitution, as recognized by Miranda and article 38.22 of the Texas
Code of Criminal Procedure.
The State concedes that appellant was in custody and subject to interrogation
when Sergeant Wolfford asked appellant about the location of the gun. The State,
however, argues that the public safety exception applies and did not bar the use of
the statements at appellant’s trial.
2
The Sixth Amendment right to counsel generally does not attach until adversary judicial process
has been initiated. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). Here, there is no indication
that this had occurred while appellant was still at the scene. Additionally, there is no evidence that
appellant invoked his right to counsel at the scene. Finally, appellant does not brief how the Sixth
Amendment was implicated under these circumstances.
7
a. TRIAL COURT FINDINGS OF FACT AND CONCLUSIONS OF LAW
After conducting a suppression hearing at which Sergeant Wolfford testified,
the trial court made several findings of fact, including:
• This Court finds that Sergeant Wolfford, a supervisor with the homicide
unit of the Harris County Sheriff’s Office, who testified in the Motion
to Suppress hearing, was a credible and reliable witness.
• This Court finds that on July 4, 2014, Wolfford was assigned to assist
in the investigation of the murder of [decedent] . . . on the same day.
• This Court finds that [the decedent’s] death appeared to Wolfford to be
the result of gunshot wounds.
• This Court finds that on July 4, 2014, Defendant was at the scene of the
murder with what appeared to Wolfford to be blood on [Defendant’s]
shorts.
• This Court finds that the Defendant was handcuffed, placed in the rear
seat of a marked police vehicle, and detained at the scene in custody.
• This Court finds that when the defendant, Daniel Durham, was
detained, he was not in possession of a firearm.
• This Court finds that at the time Wolfford spoke to the Defendant,
Wolfford feared that the firearm used to shoot [the decedent] had been
discarded somewhere in the surrounding neighborhood, where it might
be discovered by a child. Wolfford therefore reasonably believed that
there was a danger to public safety.
• This Court finds that Wolfford did not read the Defendant his Miranda
warnings at the time of Defendant’s statement concerning the location
of the weapon.
• This Court finds that the Defendant told Wolfford the gun would be
located in a trash can in front of Defendant’s mother’s house, where the
gun was then found.
Additionally, the trial court made the following conclusion of law:
“Defendant’s at-the-scene statements to Wolfford were admissible because a
weapon in a residential area posed a threat to public safety requiring expediency on
the part of Wolfford.”
8
b. MIRANDA AND ARTICLE 38.22
Miranda and Article 38.22 of the Texas Code of Criminal Procedure require
a defendant be given specific warnings for statements that are the result of custodial
interrogation in order to be admissible. See Miranda v. Arizona, 384 U.S. 436(1966); Tex. Code Crim. Proc. art. 38.22. The Miranda warnings are “‘not
themselves rights protected by the Constitution but [are] instead measures to insure
that the [suspect’s] right against compulsory self-incrimination [is] protected.’” New
York v. Quarles, 467 U.S. 649, 654 (1984) (quoting Michigan v. Tucker, 417 U.S.
433, 444 (1974)). “The purpose of the Miranda warnings instead is to dissipate the
compulsion inherent in custodial interrogation and, in doing so, guard against
abridgement of the suspect’s Fifth Amendment rights.” McCambridge v. State, 712
S.W.2d 499, 506 (Tex. Crim. App. 1986) (en banc).
Article 38.22 of the Texas Code of Criminal Procedure governs the
admissibility of statements made by a defendant during custodial interrogation in a
criminal proceeding. Tex. Code Crim. Proc. art. 38.22. Section 3 provides that an
oral statement is admissible against a defendant in a criminal proceeding if, among
other things: (1) the statement was electronically recorded; (2) the defendant was
given the warnings set out in Section 2(a) before the statement was made and it is
included on the recording; and (3) the defendant “knowingly, intelligently, and
voluntarily” waived the rights set out in the warnings. Id. at § 3 “The warnings
provided in Section 2(a) are virtually identical to the Miranda warnings, with one
exception—the warning that an accused ‘has the right to terminate the interview at
any time’ as set out in Section 2(a)(5) is not required by Miranda.” Herrera v. State,
241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (citations omitted); see Wilkerson v.
State, 173 S.W.3d 521, 527 n. 14 (Tex. Crim. App. 2005) (observing that Article
38.22 “requires a slightly more elaborate set of warnings than Miranda [.]”). “As
9
with the Miranda warnings, the warnings in Section 2(a) of Article 38.22 are
required only when there is custodial interrogation.” Herrera, 241 S.W.3d at 526.
Absent an exception, a confession is illegal and must be suppressed if it is
obtained pursuant to a “custodial interrogation” without the benefit of Miranda
warnings. See, e.g., McCambridge v. State, 712 S.W.2d 499, 504–05 (Tex. Crim.
App. 1986); DeLeon v. State, 758 S.W.2d 621, 624–25 (Tex. App.—Houston [14th
Dist.] 1988, no pet.)
The United States Supreme Court created a public safety exception to
Miranda. See Quarles, 467 U.S. at 655–57; see also Hutchison v. State, 424 S.W.3d
164, 180 (Tex. App.—Texarkana 2014, no pet.). The “public safety” exception
exempts from Miranda those situations in which an officer has reason to believe that
immediate and summary questioning is necessary to protect members of the public
from serious harm. Quarles, 467 U.S. at 656. The Supreme Court concluded that
“the need for answers to questions in a situation posing a threat to the public safety
outweighs the need for the prophylactic rule protecting the Fifth Amendment’s
privilege against self-incrimination.” Id. at 657; see Russell v. State, 215 S.W.3d
531, 534 (Tex. App.—Waco 2007, pet. ref’d).
c. APPLICATION
It is undisputed that appellant was in custody at the time Sergeant Wolfford
asked him where gun was located. Because Sergeant Wolfford neither read
appellant his Miranda rights nor complied with article 38.22 regarding appellant’s
statements at the scene, the interrogation must fall within an exception in order for
appellant’s at-the-scene statements to be admissible.
Appellant argues that Sergeant Wolfford’s interrogation regarding the
location of the gun was solely to elicit testimonial evidence and did not fall under
10
the public safety exception to the Miranda warnings. Thus, appellant contends, it
should have been suppressed. We disagree.
At the suppression hearing, Sergeant Wolfford testified that he wanted one
specific question answered: the location of the gun. Sergeant Wolfford stated that
he did not read appellant his Miranda warnings “[b]ecause of the exigency of the
situation, that I believed that there was a firearm that was out in that neighborhood.
The day was July 4th. It will be daylight soon. And I was concerned that a child
would find that gun in the morning in the front yard of somebody’s — somebody’s
residence.” Additionally, through Sergeant Wolfford’s testimony, several
photographs (e.g., an aerial map of the decedent’s neighborhood, the body of the
decedent at the scene with gunshot wounds, a live round of ammunition and a spent
shell casing at the scene, blood on the appellant’s clothes and body, the trash can in
which the gun was located, and blood on the slide of the recovered gun) were
admitted into evidence.
We give almost total deference to a trial court’s determination of historical
facts, especially if those determinations turn on witness credibility or demeanor, as
here. See Neal v. State, 256 S.W.3d 264, 281 (Tex. Crim. App. 2008). Given the
evidence before the trial court at the suppression hearing, we conclude the trial court
did not abuse its discretion in denying appellant’s motion to suppress and admitting
appellant’s statement at the scene because Sergeant Wolfford’s single inquiry
concerning the location of the gun was reasonable and clearly fell within the public
safety exception to Miranda and article 38.22 of the Texas Code of Criminal
Procedure. Quarles, 467 U.S. at 655–57; see DeLeon, 758 S.W.2d at 625.
d. HARMLESS ERROR ANALYSIS
Appellant asserts that “the erroneous denial of a motion to suppress a
statement taken in violation of Miranda is constitutional error subject to review
11
under the standard set forth in Rule 42.2(a) of the Texas Rules of Appellate
Procedure.”
Assuming, arguendo, that the trial court erred in denying the motion to
suppress with regard to appellant’s statement at the scene about the location of the
gun, contrary to appellant’s contentions, the record does not establish that appellant
was harmed. See Tex. R. App. P. 44.2(a)3 (setting forth standard for determining
constitutional error).
As an initial matter, appellant’s argument that suppression of appellant’s
statement in regard to the location of the gun would have led to suppression of the
gun itself is flawed. Contrary to appellant’s assertion, violations of Miranda do not
call for the exclusion of derivative physical evidence found as a result of a
defendant’s unwarned statement. United States v. Patane, 542 U.S. 630, 636–38
(2004) (plurality). As applied here, even if appellant’s statement regarding the
location of the gun to Sergeant Wolfford was improper, the location of the gun would
not have been suppressed. See id. at 643–44 (gun found as a result of a defendant’s
unwarned statement need not be suppressed); Quarles, 467 U.S. at 667–74
(O’Connor, J., concurring) (noting that even if the statement of the defendant had
been suppressed the gun itself need not be excluded from evidence).
Moreover, the evidence connecting the appellant to the gun made the
introduction of appellant’s statement harmless. Decedent’s wife identified appellant
as the person who had been struggling with her husband. The decedent was killed
with his own gun; the decedent’s gun was found in the trashcan in front of the
appellant’s mother’s house. The decedent’s wife observed appellant lunge toward
3
“If the appellate record in a criminal case reveals constitutional error that is subject to harmless
error review, the court of appeals must reverse a judgment of conviction or punishment unless the
court determines beyond a reasonable doubt that the error did not contributed to the conviction or
punishment.” Tex. R. App. P. 42.2(a).
12
her husband moments before hearing the gunshots that killed her husband.
Appellant was in the area of the shooting after the murder. Appellant was observed
with blood on his clothes. Finally, in addition to the identification of appellant by
decedent’s wife, and the compelling circumstantial evidence, the subsequent video
recorded admission by appellant that he shot and killed the decedent renders
harmless appellant’s statement at the scene that he had placed the gun in the trashcan.
See, e.g., Miller v. State, No. 04-14-00041-CR, 2015 WL 3775097, *2 (Tex. App.—
San Antonio Dec. 16, 2015, pet. ref’d) (mem. op.) (not designated for publication)
(“Moreover, even if we held the trial court erred in denying the motion to suppress
with regard to Miller’s [custodial] statements about the location of the knife, the
record does not establish how Miller was harmed by the admission of these
statements given that Miller’s [non-custodial] statement that he stabbed his father
was admissible.”).
For the foregoing reasons, we hold that the trial court did not err in admitting
appellant’s statement at the scene that identified the location of the gun.
Appellant’s first issue is overruled.
3. RECORDED STATEMENT
Appellant contends in his second issue that the trial court erred in denying the
motion to suppress his recorded custodial statement to police due to his mental defect
at the time of the statement. Appellant concedes that his waiver was not “involuntary
due to coercive police conduct.”
The State argues that appellant’s concession that his waiver was not coerced
forecloses appellant’s federal claim under Miranda.4 As to appellant’s statutory
4
Due process claims and Miranda claims of involuntariness involve an objective assessment of
police behavior. Oursbourn v. State, 259 S.W.3d 159, 171 (Tex. Crim. App. 2008); Umana v.
State, 447 S.W.3d 346, 350 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
13
claim under article 38.22 of the Texas Code of Criminal Procedure, the State
contends that the totality of the circumstances demonstrate that appellant knowingly,
intelligently, and voluntarily waived his rights. Thus, the State asserts that denial of
suppression and inclusion of a jury instruction was the proper remedy.
a. TRIAL COURT FINDINGS OF FACT AND CONCLUSIONS OF LAW
For purposes of the suppression hearing only, appellant’s recorded confession
was admitted without objection. Thereafter, the trial court made several findings of
fact, including:
• This Court finds that Sergeant Mark Reynolds, a more than thirty-four-
year veteran of the Harris County Sheriff’s Office, was a credible and
reliable witness.
• This Court finds that Deputy Mario Quintanilla of the Harris County
Sheriff’s Office was a credible and reliable witness.
• This Court finds that on July 4, 2014, Reynolds and Quintanilla
conducted an interview of the Defendant in an interview room at the
homicide unit office.
• This Court finds that the interview was recorded in its entirety.
• This Court finds that Miranda and Tex. Code Crim. Pro. Art. 38.22
(sic) warnings were read to Defendant by Quintanilla.
• This Court finds that Reynolds was present in the room while
Quintanilla read the Defendant his Miranda and Tex. Code Crim. Pro.
Art. 38.22 (sic) warnings.
• This Court finds that the Defendant was not interrogated by police or
their agents regarding the offense prior to the reading of his Miranda
and Tex. Code Crim. Pro. Art. 38.22 (sic) warnings.
• This Court finds that the Defendant vocally acknowledged that he
understood the Miranda and Tex. Code Crim. Pro. Art. 38.22 (sic).
• This Court finds that the Defendant physically acknowledged that he
understood the Miranda and Tex. Code Crim. Pro. Art. 38.22 (sic)
warnings by affirmatively nodding his head.
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• This Court finds that the Defendant was fully advised of his rights
pursuant to Miranda and Tex. Code Crim. Pro. Art. 38.22 (sic).
• This Court finds that the Defendant was not promised anything in
exchange for his statement.
• This Court finds that the Defendant’s statement was not the result of
any threat or coercion.
• This Court finds that the Defendant did not remain silent or choose to
remain silent during the interview.
• This Court finds that the Defendant did not request the presence of an
attorney during the interview.
• This Court finds that the Defendant did not terminate the interview.
• This Court finds that the Defendant showed that he was able to speak
and understand the English language.
• This Court finds that the Defendant did not claim that he had been
diagnosed with any mental illness or learning deficiency.
• This Court finds that the [D]efendant’s educational background and IQ
did not prevent him from understanding his Miranda and Tex. Code
Crim. Pro. Art. 38,22 (sic) warnings.
• This Court finds that the Defendant understood his rights.
• This Court finds that the Defendant freely and voluntarily waived his
rights.
• This Court finds that the Defendant freely and voluntarily participated
in the interview.
Additionally, in its conclusions of law, the trial court determined that Texas
Code of Criminal Procedure article 38.22 and Miranda apply where a person is
subject to custodial interrogation. The trial court further concluded:
• Defendant’s statements to Reynolds and Quintanilla, which followed
the reading of his Miranda and Tex. Code Crim. Pro. Art. 38.22 (sic)
warnings, were given after he made a voluntary, knowing, and
intelligent waiver of his rights. Defendant gave his statement freely and
voluntarily.
15
• In compliance with Tex. Code Crim. Pro. Art. 38.22 (sic), the statement
was recorded and provided to defense counsel at least 20 days in
advance of trial.
b. VOLUNTARINESS
The State bears the burden of establishing by a preponderance of the evidence
that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights.
Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010); Diamond v. State, 496
S.W.3d 124, 137 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The statement
of an accused may be used in evidence against him only if it appears that the
statement was made freely and voluntarily, without compulsion or persuasion. See
Tex. Code Crim. Proc. art. 38.21.
A waiver of rights may be inferred from the actions and words of the person
interrogated. Joseph, 309 S.W.3d at 25. In evaluating whether appellant knowingly,
intelligently, and voluntarily waived his Miranda rights, we use a two-pronged test,
in which we ask: (1) whether the relinquishment of the right was voluntary by
determining whether it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception, and (2) whether the waiver was made with full
awareness of the nature of the rights being abandoned and the consequences of the
decision to abandon them. Id. We look to the totality of the circumstances in
determining whether a statement was made voluntarily. Id.While not alone determinative, evidence of mental impairment is a factor to
be considered by the factfinder in evaluating voluntariness. Oursbourn v. State, 259
S.W.3d 159, 173 (Tex. Crim. App. 2008); Umana v. State, 447 S.W.3d 346, 350
(Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). A confession is involuntary if
the totality of the circumstances demonstrate that the confessor did not make the
decision to confess of his own free will. Id. at 351.
16
c. APPLICATION
Appellant asserts that “any perceived waivers were not knowingly and
intelligently given due to mental illness which prevented him from comprehending
the significance of the waivers and overbearing his resistance to waiving them.”
Appellant does not claim that his waiver was involuntary due to coercive
police conduct. Thus, appellant’s contention that his Miranda and/or Due Process
rights were violated is foreclosed. A confession is involuntary “only when there is
police overreaching.” Oursbourn, 259 S.W.3d at 169; Umana, 447 S.W.3d at 350.
“Absent police misconduct causally related to the confession, there is no deprivation
of due process of law by a state actor and therefore no violation of the Due Process
Clause.” Cevantes-Guervara v. State, 532 S.W.3d 827, 833 (Tex. App.—Houston
[14th Dist.] 2017, no pet.) (citing Oursbourn, 259 S.W.3d at 170; Umana, 447
S.W.3d at 350). Likewise, Miranda protects against government coercion to
surrender Fifth Amendment rights. Oursbourn, 259 S.W.3d at 170; Umana, 447
S.W.3d at 350. Appellant concedes police coercion was not present here. See
Oursbourn, 259 S.W.3d at 171; Umana, 447 S.W.3d at 350.
Unlike a claim of involuntariness under Miranda, appellant’s claim that his
waiver of rights under article 38.22 was involuntary need not be predicated on
evidence of police overreaching. See Leza v. State, 351 S.W.3d 344, 352 (Tex. Crim.
App. 2011). Under the totality of the circumstances test, many factors, including
mental illness, may be relevant in determining whether a defendant’s waiver of
rights under Article 38.22 was voluntary—the product of his free and deliberate
choice. See Oursbourn, 259 S.W.3d at 172–73; Williams v. State, 502 S.W.3d 262,
272 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). “[T]he waiver must be
made with a full awareness both of the nature of the right being abandoned and the
17
consequences of the decision to abandon it.” Leza, 351 S.W.3d at 349 (internal
citations omitted).
The question is whether the accused’s mental impairment is so severe that he
is incapable of understanding the meaning and effect of his confession. See Casias
v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970). A defendant’s mental
condition, by itself and apart from its relation to official coercion, will never require
a conclusion of involuntariness. See Colorado v. Connelly, 479 U.S. 157, 164
(1986). Thus, while not alone determinative, mental impairment is a factor in
ascertaining the voluntariness of a confession. See Penry v. State, 903 S.W.2d 715,
744 (Tex. Crim. App. 1995).
It is undisputed that Deputy Quintanilla advised appellant of his Miranda and
statutory rights. Appellant expressly waives his rights on the video recording. It
also is undisputed that during the recording, appellant makes statements regarding
malware, ransomware, and/or spyware. Although Sergeant Reynolds redirected
appellant to the question, Sergeant Reynolds testified that appellant was “making
sense.” Sergeant Reynolds elaborated, stating that appellant was putting his words
together and using full sentences; he was able to “conversate” and get his thought
across.
In addition to the testimony adduced at the suppression hearing the trial court
could have reasonably relied on appellant’s rendition of the events of the day in
question as supporting lucid thinking and voluntariness—appellant knew his date of
birth, home address and the address of his mother; he explained that he needed to
exit the decedent’s garage after turning off the breaker and activating the generator;
he stated that he realized he should not have been on the decedent’s property; he
attempted to conceal that he had been in the garage by lying to the decedent about
having seen someone running away from the garage; he described the details of the
18
struggle with the decedent, telling the decedent not to reach for the gun, wrestling
for the gun, being angry and wanting to hit the decedent, describing the words the
decedent used while begging for his life,5 and what he did with the gun after the
shooting. Additionally, appellant expressed remorse and regret for killing the
decedent, which are behaviors the trial court could have reasonably believed were
indicative of awareness of the wrongfulness of the alleged conduct.6 See Valtierra,
310 S.W.3d at 447–48 (“If the trial judge’s decision is correct on any theory of law
applicable to the case, however, it will be sustained.”).
At the suppression hearing, the defense did not present any witnesses or offer
any exhibits for the trial court’s consideration. In determining whether the trial
court’s ruling on a motion to suppress is supported by the record, we generally
consider only evidence adduced at the suppression hearing.7 See Perez v. State, 495
S.W.3d 374, 387 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“[T]his Court
may only consider evidence available to the trial court when it ruled on the motion
to suppress.”).
We conclude the trial court did not abuse its discretion in denying appellant’s
motion to suppress, as there is support in the record for the trial court’s
5
Sergeant Reynolds testified that appellant supplied information about decedent pleading “Please
Jesus, I’m a preacher. Please Jesus I’m a minister. Please Jesus, I’m a cop” before appellant shot
the decedent in the head.
6
Moreover, the issue of appellant’s voluntariness was presented to the jury. The jury was
instructed to disregard appellant’s confession if they did not believe that the confession was
voluntary. See Grayson v. State, 438 S.W.2d 553, 555 (Tex. Crim. App. 1969) (upholding trial
court’s ruling that statement was admissible despite defendant’s mental retardation and stating that
the jury was given proper instruction to re-determine voluntariness: “Whether appellant had the
mental competency or intelligence required to waive his right to remain silent and to have counsel
present was for the court and the jury. The issue was fairly presented and resolved against
appellant.”).
7
There is an exception to this rule if the parties consensually relitigate the suppression issue during
trial. See Perez, 495 S.W.3d at 387. The record does not reflect that the parties agreed to do so
here.
19
determinations of voluntariness. We must give deference to the trial court’s factual
finding that appellant’s waiver of his rights during the recorded statement was the
“free will” or “free choice” of appellant. The evidence does not reflect any
overreaching or misconduct on the part of the police, and appellant does not argue
that any occurred. See Umana, 447 S.W.3d at 356. The evidence shows that Deputy
Quintanilla advised appellant of his Miranda rights and article 38.22 statutory rights;
appellant had the basic reasoning skills to understand them, and voluntarily waived
them; appellant did not give any indication that his educational background or
mental capabilities prevented him from understanding Deputy Quintanilla’s
questions.
Accordingly, we conclude the totality of the circumstances here support the
trial court’s determination that any alleged mental illness of appellant did not render
him incapable of understanding the meaning and effect of his waiver and confession
and, thus, that both were voluntarily made. See Umana, 447 S.W.3d at 351.
Accordingly, we conclude that the trial court did not err in denying appellant’s
motion to suppress and admitting appellant’s recorded statement.
d. HARM ANALYSIS
As set forth above, appellant conceded he was not coerced and did not lodge
a federal complaint under Miranda. Rather, appellant’s issue is based on the
statutory requirement of voluntariness under article 38.22 of the Texas Code of
Criminal Procedure. When only a statutory violation is claimed, the error must be
treated as non-constitutional for the purpose of conducting a harm analysis under
Texas Rule of Appellate Procedure 44.2(b). Gray v. State, 159 S.W.3d 95, 98 (Tex.
Crim. App. 2005); Tex. R. App. P. 44.2(b). Rule 44.2(b) provides that: “Any other
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.” See Tex. R. App. P. 44.2(b)
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Here, appellant’s identification as the killer of the decedent was not in doubt
because of other evidence admitted at trial that connected appellant to the murder.
Without the recorded statement, the jury would know that the decedent, a 69-year-
old bishop, went outside to see why someone was intruding on his property.
Appellant struggled with the decedent, took the decedent’s gun from him, and killed
the decedent with the gun. Forensic evidence showed that one shot went off in the
decedent’s pocket and the other shot was made at a distance of at least two feet and
went directly into the decedent’s head. The appellant then took the gun and threw it
into the trashcan in front of his mother’s house before wandering around the
neighborhood covered in the decedent’s blood.
For these reasons we hold that even if there was error in the admission into
evidence of appellant’s video recorded statement, any such error would be harmless
beyond a reasonable doubt. See Dowthitt v. State, 931 S.W.2d 244, 263 (Tex. Crim.
App. 1996) (finding admission of a confession harmless under higher standard of
constitutional harm, in part, because the physical evidence—appellant’s fingerprints
on a beer bottle that had the victim’s blood on it and the murder weapon was a
distinctive knife carried —strongly connected appellant to the murders without
regard to any inconsistencies in his statements).
Appellant’s second issue is overruled.
B. WITNESS SEQUESTRATION
In his third issue, appellant argues the trial court erred by excluding the
presence of Dr. Alissa Sherry, a clinical psychologist, during the testimony of
Officer Quintanilla.
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1. STANDARD OF REVIEW AND APPLICABLE LAW
“The procedure of excluding witnesses from the courtroom is commonly
called putting the witnesses ‘under the rule.’” Russell v. State, 155 S.W.3d 176, 179
(Tex. Crim. App. 2005); Tex. R. Evid. 614 (codifying the witness sequestration
rule). “The purpose of placing witnesses under the rule is to prevent the testimony
of one witness from influencing the testimony of another, consciously or not.”
Russell, 155 S.W.3d at 179; Parks v. State, 463 S.W.3d 166, 174 (Tex. App.—
Houston [14th Dist.] 2015, no pet.).
Rule 614 of the Texas Rules of Evidence contains four exceptions to the
witness exclusion requirement,8 including an exception for “a person whose
presence a party shows to be essential to presenting the party’s claim or defense.”
Tex. R. Evid. 614(c); Russell, 155 S.W.3d at 180; Parks, 463 S.W.3d at 174. The
party seeking to exempt a witness has the burden of showing that the witnesses’
presence is essential and that the claimed exception applies. Russell, 155 S.W.3d at
180. Enforcement of the rule and its exceptions lies within the sound discretion of
the trial court. Id. (citing Caron v. State, 162 S.W.3d 614, 618 (Tex. App.–Houston
[14th Dist.] 2005, no pet.)); see Lewis v. State, 486 S.W.2d 104, 106 (Tex. Crim.
App. 1972) (stating the trial court is vested with discretion and may permit expert
witnesses to be exempt from the rule so they may hear other witnesses testify and
then base their opinions on such testimony). A trial judge abuses his discretion if he
acts arbitrarily or unreasonably without reference to any guiding rules or principles.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
8
Tex. R. Evid. 614 (a)-(d).
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2. APPLICATION
Here, before Officer Quintanilla testified, defense counsel requested that Dr.
Sherry be permitted to remain in the courtroom during the testimony of Officer
Quintanilla, stating as follows:
THE COURT: You say she’s a psychologist. Are you asking her
to remain because of somebody’s testimony she needs to hear?
[DEFENSE COUNSEL]: Yes, Your Honor. I think one of the
witnesses, the police officer of course, ‘cause she’s the expert. That
goes to the voluntariness of the statement. Her testimony impacts that
directly so this officer’s testimony , some aspect of the statement as
well as it gets deputy Donna Durham, who will testify as well who
observed the defendant before this happened before he —-.
THE COURT: If she’s going to testify to the voluntariness of the
statement I don’t understand why this Court, based on what I’m
understanding she’s rendered an opinion based on reviewing the
recording.
[DEFENSE COUNSEL]: She’s reviewed the report and records as well
and jail records and medical records, reviewed all that material but
reviewing Donna Durham’s statement because he (sic) was there during
the interrogation. Some of the things that happened off the video or
anything of that nature she would also be able to be assisted in that as
well but if the Court want her to remain outside —
THE COURT: What’s the State’s position?
[THE STATE]: I would object to her being in the courtroom. If
she’s had an opportunity to view the video, which is the best evidence
of what the defendant said that night and whether or not a statement’s
given voluntary anything that she surmises from deputy Quintanilla’s
testimony would be inflamed by questions that [Defense counsel] is
going to ask and have no relevance to her ability to view a video and
[whether]the statement was waived voluntary (sic).
The trial court denied defense counsel’s request that Dr. Sherry remain in the room
when Officer Quintanilla testified.
23
The record does not reflect that Dr. Sherry did not have enough material to
make an assessment. In making her assessment, Dr. Sherry reviewed appellant’s
interrogation video, “the various things that went on with regards to his arrest,” who
the police interviewed, appellant’s Rusk Hospital records, his competency
evaluation, his sanity evaluation, and the Harris County Jail records. Dr. Sherry
diagnosed appellant with “paranoid schizophrenia” Given the range of information
at her disposal, there is no indication that being present in the courtroom for Officer
Quintanilla’s trial testimony was necessary. The State expressed concern that the
defense counsel’s questions to Officer Quintanilla could signal to Dr. Sherry what
her testimony should contain. Although appellant argues in his brief that he was
harmed by the expert not being able to sit in on the testimony of his mother, this was
not the trial court’s ruling. The trial court only ordered Dr. Sherry to step out when
Officer Quintanilla testified.
We conclude the trial judge properly balanced the policies behind the Rule
when excluding Dr. Sherry from being present during the testimony of Officer
Quintanilla. We cannot say that appellant has adequately demonstrated that the trial
court abused its discretion in doing so. See Tex. R. Evid. 614.
Appellant’s third issue is overruled.
III. Conclusion
The trial court’s judgment is affirmed.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Jewell, and Poissant.
Do Not Publish – Tex. R. App. P. 47.2(b).
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