DONOVAN CHRISTOPHER LILLY v. THE STATE OF TEXAS (2011)

OPINION

Opinion By Justice Richter

Appellant was charged in two indictments with aggravated assault with a deadly weapon and pleaded not guilty on both charges.   A jury convicted appellant on both charges and sentenced him to eight years' imprisonment, probated for ten years on the first charge and four years' imprisonment on the second charge, with the sentences to run concurrently.   In three issues on appeal, appellant contends he was wrongfully convicted on the uncorroborated testimony of accomplice witnesses, the trial court erred in admitting his oral statement to police, and the trial court erred in failing to instruct the jury on the voluntariness of the statement.   Concluding appellant's arguments are without merit, we affirm the trial court's judgments.

Background

On Memorial Day weekend in 2008, three students from Allen High School (“Allen”), Ben Hafizovic, Jordan Long, and Mike Ferdinand, got into a disagreement with two boys from Liberty High School (“Frisco”).   When one of the Frisco boys started calling friends to join the fight, Hafizovic decided he would also call friends to join the fight.   The students decided “not to fight then and there,” but arranged for a subsequent meeting at a different location.   There was no plan to involve weapons, but only to have “a random just fist fight.”

The Allen group left to gather more of their friends for the fight, and picked up appellant and his younger brother.   Ricky Standberry also joined the group, but later testified he did not know about the fight.   Instead, Standberry said he believed the group was just going to see some girls.

When the Allen group reached the apartment complex where the fight was to occur, they found the Frisco group and parked nearby.   The boys in the Frisco group took off their shirts, and handed their shirts and cell phones to several girls who were standing nearby to watch, including Victoria Williams and Alandria Robinson.   None of the Frisco group carried any type of weapons.   The boys in the Allen group started to get out of their cars to fight, but appellant shouted for them to get back inside and fired several shots out the window of the car.   Robinson and Williams were both shot in the leg.

Appellant was eventually arrested and interviewed at the police station by Detective Rich. Detective Rich commenced the interview by reading the Miranda warnings and inquiring as to whether appellant understood his rights and wished to proceed with the interview.   After appellant affirmed his desire to waive his rights and proceed, he denied being present at the fight.   After approximately forty minutes, appellant requested that the interview be terminated, and he was returned to his cell.

Approximately two hours later, appellant told the jail staff he wanted to speak to the police again.   Detective Rich read the Miranda warnings again and confirmed that appellant wanted to speak with him.   Then, appellant stated that his initial story was not true and described a different version of events.   After about thirty minutes, Detective Rich told appellant he did not believe him.   Eventually, appellant admitted that he shot “the first time,” and said “I shot in the air, but I did not shoot those girls.”   Then, appellant asked to terminate the interview.   The police did not immediately comply with appellant's request, and the interview continued for approximately fifteen minutes more.   During these last fifteen minutes, appellant cried and asked for his mother and made certain other statements not at issue here.

At trial, the court conducted a hearing outside the presence of the jury to determine the admissibility of recordings of appellant's first and second interviews.   The trial court excluded the portion of appellant's second interview following appellant's request to terminate the interview, but admitted the remainder of the two interviews into evidence (together, the “Statement”).

Analysis

Was the Statement Voluntary?

In his first issue, appellant asserts the trial court erred in admitting the Statement he gave to police during custodial interrogation.   Appellant contends the Statement was inadmissible because the State failed to demonstrate a knowing, intelligent, and voluntary waiver of his rights as required by article 38.22 of the code of criminal procedure and Miranda.   See Tex.Code Crim. Proc. Ann. art. 38.22 § 3(a)(2) (West 2005);  Miranda v. Arizona, 384 U.S. 436, 444, 475 (1966).

Article 38.22 of the Code of Criminal Procedure establishes procedural safeguards for securing the privilege against self-incrimination.  Tex.Code Crim. Proc. Ann. art. 38.22.   Among its requirements, it provides that no oral statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding unless (1) the statement was recorded and (2) prior to the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights.  Tex.Code Crim. Proc. Ann. art. 38.22, § 3. The State has the burden of showing that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights.   See Miranda, 384 U.S. at 444;  Hill v. State, 429 S.W.2d 481, 486 (Tex.Crim.App.1968).   The State must prove waiver by a preponderance of the evidence.  Joseph v. State, 309 S.W.3d 20, 24 (Tex.Crim.App.2010) (citing Colorado v. Connelly, 479 U.S. 157 (1986)).

The general rule is that “neither a written nor an oral express waiver is required.”  Watson v. State, 762 S.W.2d 591, 601 (Tex.Crim.App.1988).  “A valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”  Miranda, 384 U.S. at 475.   But a waiver need not assume a particular form and, in some cases, a “waiver can be clearly inferred from the actions and words of the person interrogated.”  North Carolina v. Butler, 441 U.S. 369, 373 (1979);  see also Berghuis v. Thompkins, 130 S.Ct. 2250, 2262 (2010) (“As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.”);  Joseph, 309 S.W.3d at 24.

The inquiry does not turn on whether Appellant “explicitly” waived his Miranda rights, but rather whether the waiver was knowing, intelligent, and voluntary.   See Joseph, 309 S.W.3d at 25.   In evaluating whether a waiver is intelligently and voluntarily made, a court must determine whether:  (1) the relinquishment of the right was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception;  and (2) the waiver was made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.  “Only if the totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.  Id. (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986));  see also Leza v. State, No. AP–76157, 2011 WL 4809816, at *4 (Tex.Crim.App. Oct 12, 2011).

In the present case, the record supports a conclusion that appellant's waiver resulted from free and deliberate choice without intimidation or coercion.   Detective Rich orally advised appellant of his rights at the beginning of each interview.   In the first interview, when he did not understand one of the rights Detective Rich read to him, appellant asked Detective Rich to repeat himself.   In response, Detective Rich clarified that appellant had the right to terminate the interview at any time.   When asked if he understood his rights, appellant muttered “yeah,” and nodded affirmatively.   Appellant did not ask to speak to an attorney, and after speaking with Detective Rich for approximately forty minutes, appellant exercised his right to terminate the interview.   Two hours later, appellant initiated the second interview.   Before the second interview commenced, Detective Rich again asked appellant if he understood his rights, and appellant nodded.   Detective Rich also asked, “you do want to talk to us, right?”   Appellant nodded affirmatively and requested that Detective Rich allow him to speak uninterrupted.   Detective Rich did not raise his voice or physically intimidate appellant.   To the contrary, the detective spoke in a calm voice and remained seated across the table from appellant.   Appellant's tone and demeanor are also not indicative of coercion or intimation, and his request to terminate the first interview demonstrates his understanding of his rights.   During the second interview, appellant stated that he wanted to speak with his mother.   Detective Rich told him that the phone hold would be over in about twenty-five minutes, and appellant would be able to speak with her then “no matter what you say in here.”

Appellant concedes that “a good deal of the intimidation” took place during the last fifteen minutes of the interview—the portion of the interview the trial court suppressed.   Yet appellant insists the excluded portion of the interview is somehow relevant to demonstrate the overall tone of pressure and coercion throughout the interview.   We disagree.   Although Detective Rich's behavior changed toward the conclusion of the second interview, the jury was not allowed to see this portion of the interview.   Moreover, appellant's voluntary waiver of his rights occurred long before this allegedly intimidating conduct occurred.¹  Considering only the portions of the interview that were admitted, appellant's words and conduct demonstrate that he knowingly, intelligently, and voluntarily waived his rights.   Therefore, the trial court did not err in admitting appellant's Statement.   Appellant's first issue is overruled.

Was a Jury Instruction Required?

In his second issue, appellant contends the trial court erred in failing to instruct the jury on the voluntariness of his statement.   We review claims of jury charge error by first determining whether error occurred.  Sakil v. State, 287 S.W.3d 23, 25 (Tex.Crim.App.2009).   If so, we then evaluate whether sufficient harm resulted so as to require reversal.   See id. at 25–26.   When the defendant did not request an instruction to which he was entitled, we review the effect of the instruction's omission under the Almanza egregious harm standard.   See Oursbourn v. State, 259 S.W.3d 159, 182 (Tex.Crim.App.2008) (citing Ellison v. State, 86 S.W.3d 226, 228 (Tex.Crim.App.2002));  see also Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985).

When a question is raised and litigated about whether a statement of an accused was voluntary, article 38.22, section 6 requires that the court give a general voluntariness instruction to the jury.   See Tex.Code Crim. Proc. Ann. art. 38.22 § 6;  Oursbourn, 259 S.W.3d at 173.²  A question is raised when a party notifies the trial court or the trial court raises the issue itself.  Id. The procedure for a section 6 challenge is as follows:  (1) a party notifies the trial court that there is an issue about the voluntariness of the statement, or the trial court raises the issue sua sponte;  (2) the trial court holds a hearing outside the presence of the jury;  (3) the trial court decides whether the confession was voluntary and makes written findings of fact and conclusions of law in support of the ruling;  (4) if the trial court decides that the confession was voluntary, it will be admitted, and a party may offer evidence before the jury contesting voluntariness;  (5) if such evidence is offered before the jury, the trial court shall give the jury a voluntariness instruction.   See id. at 175 n. 55.

In the present case, however, the record does not reflect, and appellant does not identify, any evidence before the jury to contest the voluntariness of the Statement.³  When, as here, the only question as to the voluntariness of the statement is raised outside the jury's presence, a jury instruction is not required.   See Oursbourn, 259 S.W.3d at 175;  Vasquez v. State, 225 S.W.3d 541, 545–46 (Tex.Crim.App.2007).   Therefore, the trial court did not err in failing to so instruct the jury.   Appellant's second issue is overruled.

Was There Uncorroborated Accomplice Witness Testimony?

In his third issue, appellant argues the State failed to corroborate the testimony of accomplice witnesses Benjamin Hafizovic, Mike Ferdinand, Jordan Long, Ricky Standberry, and Jamar Maurice.   The State responds that corroboration was not required because none of the complained-of witnesses were accomplices, or alternatively, that the testimony was adequately corroborated.

An accomplice is someone who participates with the defendant before, during, or after the commission of a crime and acts with the requisite culpable mental state.  Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App.2007);  Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004).   To be considered an accomplice witness, the participation with the defendant must have involved an affirmative act that promotes the commission of the offense with which the defendant is charged.  Druery, 225 S.W.3d at 498;  Paredes, 129 S.W.3d at 536.   A witness's mere presence at the scene of the crime does not render that witness an accomplice witness.  Cocke v. State, 201 S.W.3d 744, 748 (Tex.Crim.App.2006).   If the witness cannot be prosecuted for the same offense with which the defendant is charged, or a lesser-included offense, the witness is not an accomplice witness as a matter of law.  Druery, 225 S.W.3d at 498;  Cocke, 201 S.W.3d at 748 (“There must exist evidence sufficient to connect the alleged accomplice to the criminal offense as a ‘blameworthy participant,’ but whether the alleged accomplice witness is actually charged or prosecuted for his participation is irrelevant.”).

The code of criminal procedure provides that a conviction cannot stand on accomplice testimony unless it is corroborated by other testimony, and corroboration is not sufficient if it merely shows the commission of the offense.   See Tex.Code Crim. Proc. Ann. art. 38.14 (West 2005).   The accomplice witness rule is a statutorily imposed sufficiency review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards.  Cathey v. State, 992 S.W.2d 460, 462–63 (Tex.Crim.App.1999).   When evaluating the sufficiency of corroboration evidence under the accomplice witness rule, we “eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime.”  Clark v. State, 324 S.W.3d 620, 629 (Tex.App.—Fort Worth 2010, pet. ref'd) (quoting Solomon v. State, 49 S.W.3d 356, 361 (Tex.Crim.App.2001)).   The corroborating evidence need not prove the defendant's guilt beyond a reasonable doubt by itself.  Id. Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense.  Id. Rather, the evidence must simply link the accused in some way to the commission of the crime and show that rational jurors could conclude that this evidence sufficiently tended to connect the accused to the offense.  Simmons v. State, 282 S.W.3d 505, 508 (Tex.Crim.App.2009);  see also Malone v. State, 253 S.W.3d 253, 257 (Tex.Crim.App.2008) (stating that while mere presence at the scene of a crime is insufficient to corroborate accomplice testimony, “[p]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction”).   When there are conflicting views of the evidence—one that tends to connect the accused to the offense and one that does not—we defer to the fact finder's resolution of the evidence.  Simmons, 282 S.W.3d at 508;  Brown v. State, 270 S.W.3d 564, 567 (Tex.Crim.App.2008).

Appellant's argument that the state failed to corroborate the testimony of Hafizovic, Ferdinand, Long, Standberry and Maurice is erroneously premised on the assumption that these witnesses were accomplices.   But there was no determination that these witnesses were accomplices as a matter of law.   See generally Smith v. State, 332 S.W.3d 425, 439 (Tex.Crim.App.2011) (discussing accomplice as a matter of law).   Rather, the trial court gave the jury an accomplice as a matter of fact instruction.⁴  Specifically, the term accomplice was defined, and the jury was instructed that if they found the witnesses were accomplices, they could not convict appellant unless there was additional evidence that tended to connect appellant with the offense.   The jury returned a general verdict of “guilty.”

Appellant was charged with intentionally, knowingly, or recklessly causing bodily injury while exhibiting a deadly weapon.   See Tex. Penal Code Ann. § 22.02(a)(2) (West 2005).   Despite the fact that Hafisovic, Ferdinand, Long, and Standberry were present at the shooting, there is no evidence that any of these witnesses engaged in any affirmative acts to participate in the offense.   They did not plan, promote, or assist appellant in causing bodily injury while exhibiting a deadly weapon.   Indeed, none of the witnesses knew appellant had a gun or that a shooting would occur.   Three of the four witnesses believed they were going to participate in a fist fight where no weapons would be present.   The fourth witness, Standberry, did not even know the group was going to a fight.   Appellant insists the four witnesses were accomplices because they agreed, after the fact, not to talk about appellant shooting the gun.   But a person is not an accomplice simply because he knew about the offense and did not disclose it.  Druery, 225 S.W.3d at 499.

Although the fifth witness, Maurice, was not present at the fight, appellant contends he was an accomplice because he attempted to conceal evidence of the offense by disposing of the gun.   Helping an accused conceal an offense, however, does not make a person an accomplice.  Smith, 332 S.W.3d at 439.   On this record, the jury could reasonably have concluded that the complained-of witnesses were not accomplices.   See Solomon, 49 S.W.3d at 362.

Because the jury returned a general verdict, we do not know whether the jury actually concluded that the witnesses were accomplices.   But even if they concluded that one or more of the witnesses were accomplices, eliminating the accomplice testimony from consideration, the record contains ample evidence to meet article 38.14's corroboration requirement.

A defendant's own statements can be used as corroboration.   See Joubert v. State, 235 S.W.3d 729, 731 (Tex.Crim.App.2007);  see also Jackson v. State, 516 S.W.2d 167, 171 (Tex.Crim.App.1974) (stating defendant's admission or confession is, under most circumstances, sufficient to corroborate accomplice testimony).   Here, appellant ultimately admitted that he was present at the scene and fired the gun at least once.   Thus, his Statement was sufficient to corroborate any accomplice testimony.   Moreover, if any one of the five alleged accomplice witnesses were deemed not an accomplice, his testimony would also corroborate the accomplice testimony.   Viewing this evidence in a light most favorable to the verdict, a rational fact finder could have concluded the evidence sufficiently connected appellant to the offense with which he was charged.   Appellant's third issue is overruled.   The trial court's judgments are affirmed.

FOOTNOTES

FN1. Because this portion of the videotape was suppressed, we do not assess whether these interrogation techniques are the type of “brutal third-degree techniques” that would render appellant's statements involuntary.   See Estrada v. State, 313 S.W.3d 274, 297 (Tex.Crim.App.2010)..  FN1. Because this portion of the videotape was suppressed, we do not assess whether these interrogation techniques are the type of “brutal third-degree techniques” that would render appellant's statements involuntary.   See Estrada v. State, 313 S.W.3d 274, 297 (Tex.Crim.App.2010).

FN2. The “general” voluntariness instruction essentially asks the jury “Do you believe beyond a reasonable doubt that the defendant's statement was voluntarily made?   If it was not, do not consider the defendant's confession.  Oursbourn, 259 S.W.3d at 173..  FN2. The “general” voluntariness instruction essentially asks the jury “Do you believe beyond a reasonable doubt that the defendant's statement was voluntarily made?   If it was not, do not consider the defendant's confession.  Oursbourn, 259 S.W.3d at 173.

FN3. Appellant summarily states that the question was raised before the court, and then argues he suffered egregious harm..  FN3. Appellant summarily states that the question was raised before the court, and then argues he suffered egregious harm.

FN4. If conflicting evidence is presented, the trial judge may allow the jury to decide whether an inculpatory witness is an accomplice witness as a matter of fact.   This is accomplished by an instruction defining the term “accomplice.”   See Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App.1998);  see also Druery, 225 S.W.3d at 512 (Keller, J., concurring) (noting that general verdict is permissible on question of accomplice)..  FN4. If conflicting evidence is presented, the trial judge may allow the jury to decide whether an inculpatory witness is an accomplice witness as a matter of fact.   This is accomplished by an instruction defining the term “accomplice.”   See Blake v. State, 971 S.W.2d 451, 455 (Tex.Crim.App.1998);  see also Druery, 225 S.W.3d at 512 (Keller, J., concurring) (noting that general verdict is permissible on question of accomplice).

MARTIN RICHTER JUSTICE