Brookshire Lending Group v. R. Judd Cribbs--Appeal from 113th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 06-02-00179-CV

Case Date: 11/27/2002

Plaintiff: Jason Marc Norton

Defendant: The State of Texas--Appeal from 23rd District Court of Brazoria County

Preview:Jason Marc Norton v. The State of Texas--Appeal from
23rd District Court of Brazoria County
IN THE
TENTH COURT OF APPEALS
No. 10-03-00053-CR
Jason Marc Norton,
Appellant
v.
The State of Texas,
Appellee
From the 23rd District Court
Brazoria County, Texas
Trial Court # 39,156
Memorandum Opinion
Jason Norton was indicted on one count of sexual assault and two counts of delivering drugs to a minor. A jury found
him guilty of sexual assault and one count of delivering drugs to a minor. Norton pled true to an enhancement
paragraph alleging a prior conviction for aggravated assault. The jury assessed punishment of life imprisonment and a
$10,000 fine for the sexual assault, and forty years imprisonment and a $5,000 fine for delivering drugs to a minor.
Norton appeals on three issues. His first two issues claim that his motion to suppress his statement should have been
granted: first, because it was not made voluntarily; second, because of delay in being magistrated. His third issue
claims improper argument by the prosecution during the punishment phase.
Finding no error, we will overrule Norton s issues and affirm the judgment.
BACKGROUND
N.N., the alleged victim, is Norton s niece. On May 5 through May 7, 2000, N.N. stayed at her grandmother s house,
along with her brother and Norton s son and stepdaughter. Norton also stayed in the house that weekend. N.N. was 17
years old at the time. She was taking lithium, Tegretol, and Risperdal for depression and has a learning disability. Her
brother testified that on the night of May 6, Norton had given N.N. orange juice to drink that N.N. said tasted bad and
that had blue swirls in it. Her brother testified that Norton woke him up in the night and asked him to wake up N.N. He
tried three times to wake her but she would not wake up. He testified that Norton picked N.N. up, carried her into the
computer room where Norton had been sleeping, and closed the door. On the morning of May 7, N.N. woke up in the
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computer room. She was very groggy, had difficulty controlling her body, and her speech was slurred. She testified
that there was blood on her blanket, sleeping bag, and nightgown. N.N. s grandmother and her father both testified that
Norton told them that he had given N.N. something to help her sleep, and N.N. s father testified that Norton told him
that he had given her Klonopin. N.N. s grandmother takes Klonopin to treat her bipolar disorder and keeps Klonopin
in her house. N.N. was taken to the hospital on May 7 and examined by a certified sexual assault nurse. She had a
large laceration inside the outer lips of her genitals.
Norton was arrested on the afternoon of May 7 for public intoxication. During the booking, Norton claimed to have
taken 20 Zoloft pills and 50 to 60 Ativan pills in an attempt to kill himself. He was taken to the hospital and released
back to the jail on the same day. On the afternoon of May 8, a detective with the police department took a written
statement from Norton in which Norton admitted having had sex with N.N. but described the encounter as consensual.
The State introduced a letter into evidence written by Norton to N.N. s father (Jason s brother) apologizing to N.N. and
the family, stating that everything that happened was my fault and that N.N. had absolutely nothing to do with what
happened. N.N. testified that Norton had attempted to have sex with her.
Motion to Suppress
In two issues, Norton contends that the trial court erred in denying his motion to suppress his statement to police.
The trial court held a Jackson v. Denno hearing in response to Norton s motion to suppress on the basis that the
statement was not made voluntarily. At the hearing, the court heard testimony from the arresting officer and from the
detective who took Norton s statement. The trial court denied the motion without issuing findings of fact. We therefore
abated the appeal and ordered the trial court to enter findings of fact and conclusions of law regarding the
voluntariness of Norton s written statement. Norton v. State, No. 10-03-00053-CR, 2005 Tex. App. LEXIS 624 (Tex.
App. Waco Jan. 26, 2005, order). The trial court entered findings of fact and concluded that the statement was made
voluntarily.
The determination of whether a statement is voluntary is a mixed question of law and fact. Garcia v. State, 15 S.W.3d
533, 535 (Tex. Crim. App. 2000). In reviewing a trial court s decision on a suppression motion, we afford almost total
deference to the trial court s application of law to fact questions. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim App.
1997). We must sustain the trial court s ruling if it is reasonably supported by the record and is correct on any theory
of law applicable to the case. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
A written statement by an accused may be used in evidence against him if it appears that the statement was freely and
voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). However, a
written statement is inadmissible unless it is appears on the face of the statement that the accused, prior to making the
statement, received his Miranda warnings either from a magistrate or from the person to whom the statement is made.
Tex. Code Crim. Proc. Ann. art. 38.22 2 (Vernon 1979).
Norton s first issue contends that the statement should not have been admitted because it was not made knowingly,
intelligently, and voluntarily. He claims that his statement was involuntary because of intoxication. Although he was
being held on a public intoxication charge, there is no evidence that he was intoxicated at the time he made his
statement. Norton was arrested on the afternoon of the 7th, taken to a hospital for treatment, released by the hospital
and returned to jail, and not questioned until the afternoon of the 8th. Two police officers who observed Norton at the
time of questioning testified that he did not appear to be intoxicated. Further, intoxication, in and of itself, is
insufficient to render a confession involuntary. Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994). Rather,
the intoxication is only a factor in determining whether a defendant was capable of making an independent, informed
decision to waive his rights. Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001). We find no evidence that
Norton was intoxicated at the time he made his statement.
Next, Norton complains that the length of delay in arraignment caused an involuntary confession. Article 15.17 of the
Texas Criminal Procedure Code requires that one making an arrest take the arrestee before a magistrate without
unnecessary delay. Tex. Code Crim. Proc. Ann. art. 15.17(a) (Vernon Supp. 2003). However, failure to do so will not
invalidate a confession unless there is proof of a causal connection between the delay and the confession. Cantu v.
State, 842 S.W.2d 667, 680 (Tex. Crim. App. 1992). Here, Norton was magistrated roughly twenty-fours hours after
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his arrest. Norton has failed to demonstrate how not being magistrated on his public intoxication charge until the day
after his arrest caused him to involuntarily make a statement.
Moreover, an unreasonable delay in presenting an arrested person before a magistrate will not vitiate an otherwise
voluntary confession if the arrestee was properly advised of his Miranda rights. Id. The record reflects that Norton had
been magistrated on the public intoxication charge, and the magistrate read him his warnings. At the interview, Norton
was given the statement form and asked to read the Miranda rights at the top of the statement and initial each of them
if he understood them. He initialed each one and stated that he understood his rights. He was given an opportunity to
read his completed statement before signing it. Although he complains that the detective taking his statement did not
verify that he could read, it is clear from the record that Norton could read and write the English language.
The trial court did not abuse its discretion by denying the motion to suppress. We overrule issues one and two.
Improper Argument
Norton s final issue claims that the prosecution s argument at the punishment stage was improper and that the trial
court erred in denying his motion for mistrial. Specifically, he complains that a remark made by the prosecutor to the
jury was an improper comment on his failure to testify.
During closing argument at the punishment stage, defense counsel argued that Norton s letter of apology demonstrated
that he had taken responsibility for what he had done. In response, the prosecutor told the jury: I would argue to you
that that remorse is another lie. It s false. How much remorse was demonstrated by having [N.N.] sit in front of you?
The trial court sustained defense counsel s objection to the remark and instructed the jury to disregard it. A motion for
mistrial was denied.
A proper jury argument must fall within one of four general areas: (1) summation of the evidence; (2) reasonable
deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. Guidry v.
State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). Following an objectionable argument, an instruction by the court to
disregard the comment will normally obviate the error, unless the remark is so inflammatory that its prejudicial effect
cannot reasonably be removed by such an admonishment. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App.
1993). If an instruction is given and the defendant moves for a mistrial which the court denies, error results if the
argument was extreme, manifestly improper, injected new and harmful facts into the case, or violated a mandatory
statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the
minds of the jurors. Hernandez v. State, 819 S.W.2d 806, 820 (Tex. Crim. App. 1991); John son v. State, 698 S.W.2d
154, 167 (Tex. Crim. App. 1985), cert. denied, 479 U.S. 871, 107 S. Ct. 239, 93 L .Ed.2d 164 (1986).
Comments by a prosecutor referring to a defendant s failure to testify violate article 38.08 of the Texas Code of
Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.08 (Vernon 1979). However, for a statement to constitute a
comment on the failure to testify, the language must either be manifestly intended or of such a character that the jury
would naturally and necessarily take it to be a comment on the defendant s failure to testify. Montoya v. State, 744
S.W.2d 15, 35 (Tex. Crim. App. 1987). Here, the prosecutor s remark is not manifestly a comment on the defendant s
unwillingness to testify. The meaning of the remark is unclear. It appears to allude more to Norton s forcing the State
to make its case and thereby forcing N.N. to testify than it does to Norton s unwillingness to testify himself. At trial,
defense counsel objected to the comment on the basis that to argue to the jury that he didn t show remorse because he
requested a jury trial is improper. The trial court sustained that objection, and instructed the jury to disregard the
remark. We do not find the prosecution s remark to be a comment on Norton s failure to testify. Furthermore, his issue
on appeal does not comport with his complaint at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
We overrule the third issue.
CONCLUSION
Having overruled all of the issues, we affirm the judgment.
BILL VANCE
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Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed May 4, 2005
Do not publish
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