HI-TECH IRRIGATION, INC. v. GENE MITTAG--Appeal from County Court at Law No. 5 of Hidalgo County

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State: Texas

Court: Criminal Court of Appeals

Docket No: 13-07-00743-CV

Case Date: 12/11/2008

Plaintiff: HI-TECH IRRIGATION, INC.

Defendant: GENE MITTAG--Appeal from County Court at Law No. 5 of Hidalgo County

Preview:Michael Ray Clay v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-03-00326-CR Michael R. CLAY, Appellant v. The STATE of Texas, Appellee From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2002CR4755A Honorable James E. Barlow, Judge Presiding Opinion by: Phylis J. Speedlin, Justice Sitting: Alma L. L pez, Chief Justice Sarah B. Duncan, Justice Phylis J. Speedlin, Justice Delivered and Filed: July 21, 2004 AFFIRMED Michael R. Clay ("Clay") pled guilty to the offense of murder and was sentenced to thirty years in prison. The sole issue raised on appeal is whether the trial court erred in denying Clay's motion to suppress after concluding that Clay's written statement was admissible in evidence. We affirm the trial court's judgment. Standard of Review We review a trial court's ruling on a motion to suppress under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997); Perez v. State, 103 S.W.3d 466, 468 (Tex. App.--San Antonio 2003, no pet.). We view the evidence in the light most favorable to the trial court's ruling, and we afford almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468. We review de novo the court's application of the law to the facts. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468. Discussion Clay contends that the trial court abused its discretion in denying his motion to suppress because he was not read his Miranda (1) rights and his statement was involuntary. The State responds that whether Clay was read his Miranda rights and whether his statement was voluntary were contested factual issues that were resolved adversely to Clay. Article 38.21 of the Code of Criminal Procedure provides that an accused's statement "may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion." Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). In order to meet constitutional standards, a confession must be both voluntary and taken in compliance with Miranda. Moss v. State, 75 S.W.3d 132, 139 (Tex. App.--San Antonio 2002, pet ref'd). A confession is not voluntary if it was induced by a promise. Davis v. State, 961 S.W.2d 156, 159 (Tex. Crim. App. 1998). The Texas Court of Criminal Appeals has held that for a promise to render a confession invalid under Article

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38.21, the promise must be "positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully." Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). In addition, a statement is not voluntary if there was "official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker." Moss, 75 S.W.3d 139 (citation omitted). In evaluating the voluntariness of a statement, the factfinder must examine the totality of the surrounding circumstances and the entire course of police conduct with respect to the suspect. Jones v. State, 119 S.W.3d 766, 773 (Tex. Crim. App. 2003); Moss, 75 S.W.3d at 139. Once the accused claims that the confession was not voluntary, the burden is upon the State to prove its voluntariness. Moss, 75 S.W.3d at 139. Three witnesses testified at the suppression hearing: (1) the detective who arrested Clay and took the statement; (2) one of the witnesses to the statement; and (3) Clay. The testimony of the detective and Clay was diametrically different with regard to whether Clay was read his Miranda rights and with regard to the voluntariness of his statement. Detective John Marshall testified that before he questioned Clay about the murder, he read Clay his Miranda rights from SAPD Form 66-E, which Clay then signed. When questioning proceeded, Clay initially denied any knowledge of the shooting. After Detective Marshall told Clay that he had a significant amount of information that Clay was involved, Clay became emotional and started to explain the details of the shooting. Clay then agreed to give Detective Marshall a written statement. After the written statement was prepared, Detective Marshall called two civilian witnesses into the office, introduced them to Clay, and gave them the opportunity to question Clay to determine whether his statement was being provided of his own free will. Clay then signed the statement in the witnesses' presence. Detective Marshall stated that Clay never asked to stop the interview and never requested an attorney. Detective Marshall testified that neither he nor any other officer threatened Clay into giving the statement or promised him anything in exchange for the statement. Finally, Detective Marshall stated that he did not deny Clay any basic necessities, such as food, water, or access to the bathroom, during the taking of the statement. On cross-examination, Detective Marshall denied telling Clay that if he failed to cooperate, he could be charged with capital murder and possibly face a death sentence. Detective Marshall admitted that he told Clay that he had a significant amount of information and that he knew that Clay was "part of the reason why it actually happened." Detective Marshall also denied that he slammed a co-defendant's statement on the desk or put the statement in Clay's face. Detective Marshall stated that he did not tell Clay that the co-defendant had already told on him. Although one of the witnesses to Clay's statement, Warren D. Hubert, Jr., did not recognize Clay in the courtroom, Hubert stated that he is called to witness statements approximately three to four times a month, and he does not recall the faces of the people giving the statements. Hubert explained that when he is called, the written statement has been printed. The detective asks the person in Hubert's presence if the statement was given of his own free will. One hundred percent of the time the person responds affirmatively. Hubert never signs a statement as a witness outside the presence of the person making the statement and never witnesses a statement that has already been signed by the person before Hubert entered the room. Hubert stated that he witnessed Clay's statement and recognized his own signature on the statement as a witness. Clay testified that he was taken to the interview room and remained in handcuffs during the interview process. Clay stated that he was never read his Miranda rights, and he did not sign the SAPD Form 66-E. Clay testified that he was told that if he did not cooperate "it was possible that [he] would be giving [sic] a death penalty or even a life sentence." Clay stated that he was promised a lesser punishment if he cooperated. Clay was told that other people in the car had given statements and was provided one co-defendant's statement to read. Clay further stated that no witnesses were present when he signed the written statement other than the transporting officer. Clay stated that he was never given the opportunity to finish reading the written statement before he signed it. On cross-examination, Clay stated that he was only aware that he had a right to an attorney in the courtroom. Clay was not told that he did not have to talk to the detectives or that he could terminate the interview. Clay was not told that his statement could be used against him at trial. As previously noted, we afford almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468. In this case, determining whether Clay was informed of his Miranda rights and whether his statement was voluntary requires

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an evaluation of the credibility and demeanor of the witnesses. Because we defer to the trial court's evaluation, we hold that the trial court did not abuse its discretion in denying the motion to suppress. Conclusion The judgment of the trial court is affirmed. Phylis J. Speedlin, Justice DO NOT PUBLISH 1. Miranda v. Arizona, 384 U.S. 436 (1996).

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