Grayson, Alonzo Jr. ( 2015 )

1602-IH
NO. PD-1603-14
IN THE
TEXAS
COURT OF CRIMINAL APPEALS
ALONZO GRAYSON, JR.,
Petitioner, „ DECEIVED IN
COm ^ CRIMINALAPPEALS
THE STATE OF TEXAS,
FEB 13 2015
Respondent. ^MAOOB^QtBI
From the Fifth District Court of Appeals
No: 05-13-00832-CR
PETITIONER'S PETITION FOR DISCRETIONARY REVIEW
FILED IN
COURT OF CRIMINAL APPEALS
FEB 13 20^5
Abel Acosta, Clerk
Alonzo Grayson, Jr.
Clements Unit - 1867695
9601 Spur 591
Amarillo, TX 79107-9606
Pro-se
TABLE OF CONTENTS
PAGE
Table of Contents i
Index of Authorities ii
Statement Regarding Oral Argument. . 1.
Statement of the Case 1.
Statement of Procedural History ... 1.
Grounds For Review 2.
Argument 2-6,
Prayer For Relief 7.
Certificate of Service 7.
Appendix
INDEX OF AUTHORITIES
PAGE
Brown v. State, 955 S.W.2d 724 (Tex.App.-Tyler 1998) 2
Chavez v, Martinez, 538 U.S. 760 (2003) 4
U.S. v. Collins, 40 F.3d 95 (5th Cir. 19940 5
Hayes v. Wash, 373 U.S. 503 (1963) 4
Henderson v. State, 962 S.W.2d 544 (Tex.Crim.App. 1997) 5
U.S. v. Hughes, 640 F.3d 428 (5th Cir. 2011) 5
U.S. Michael C, 442 U.S. 707 (1979) 5
Mincey v. Arizona, 437 U.S. 385 (1978) 5
Miranda v. Arizona, 384 U.S. 436 (1966) 5
U.S. v. Reynolds, 367 F.3d 294 (5th Cir. 2004) 5
Shaw v. State, 243 S.W.3d 647 (Tex.Crim.App. 2007) 3
U.S. v. Solis, 299 F.3d 420 (5th Cir. 2002) 5
U.S. v. Thongsophorn, 503 F.3d 51 (2007) 5
Tidmore v. State, 976 S.W.2d 724 (tex.App.-Tyler 1998) 2
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) 4, 6
Woodfox v. State, 742 S.W.2d 408 (Tex.Crim.App. 1987) 3
Texas Penal Code § 9.31(a) 2, 3
Texas Penal Code § 2.03(d) 3
Texas Code of Criminal Procedure § 38.21 5
li
STATEMENT REGARDING ORAL ARGUMENT
Petitioner is a state prisoner and the issues presented
herein are not complex requiring oral argument. Therefore,
the need for oral argument is not needed and Petitioner waives
oral argument.
STATEMENT OF THE CASE
After nearly thirty years, the Collin County Sheriff's
Office investigate Petitioner for a murder. Two Deputies take
and question Petitioner, an MHMR patient with mental disabilities.
The interview was intense and conducted in a hospital police
interview room that resulted in Petitioner nearly having to
have medical attention. Under extreme pressure Petitioner gave
a confession to the Deputies and an arrest warrant immediately
followed with subsequent conviction.
STATEMENT OF PROCEDURAL HTSTORY
In May of 2013 and after a plea of not guilty, a jury
convicted Petitioner of murder and sentenced him to fifty (50)
years imprisonment and a fine of $5,000.00. Petitioenr gave
timely notice of appeal and on November 17, 2014, the Fifth
District Court of Appeals affirmed the conviction in a non
published opinion in case number 05-13-00832-CR from the 296th
District Court of Collin County, Texas in cause number 296-81500-
2012. Petitioner now seeks Discretionary Review.
Page 1,
GROUNDS FOR REVIEW
GROUND ONE:
THE FIFTH COURT OF APPEALS ERRED IN CONCLUDING THAT AN
INSTRUCTION TO THE JURY ON SELF-DEFENSE WAS NOT REQUIRED
BASED UPON THE EVIDENCE OF THE CASE.
GROUND TWO:
THE FIFTH COURT OF APPEALS ERRED IN DETERMINING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE
PETITIONER'S MOTION TO SUPRESS HIS CONFESSION.
ARGUMENT
GROUND ONE RESTATED:
THE FIFTH COURT OF APPEALS ERRED IN CONCLUDING THAT AN
INSTRUCTION TO THE JURY ON SELF-DEFENSE WAS NOT REQUIRED
BASED UPON THE EVIDENCE OF THE CASE.
"The defendant has the initial burden of producing some
evidence to justify submission of a self-defense instruction."
Tidmore v. State, 976 S.W. 2d 724, 729 (Tex.App.-Tyler 1998).
Evidence of Petitioner's belief that force was immediately
necessary to protect himself against Bobby Ray Taylor was clearly
evident in the case and justified the use of force as allowed
under Texas law. Texas Penal Code §9.31(a).
If the evidence raises the issue of self-defense, the trial
court must submit a jury instruction on the defensive theory,
regardless of whether such evidence is strong, feeble, impeached,
or contradicted, and even if in the trial court's opinion the
testimony is not entitled to belief. Brown v. State, 955 S.W.
2d 276, 279 (Tex. Crim.App. 1997(. Such instruction must be
submitted to the jury even if the trial court does not believe
the evidence, because the jury, not the judge, must decide the
Page 2,
the credibility of. the evidence. Woodfox v. State, 742 S.W.
2d 408, 410 (Tex. Crim.App. 1987).
If a defense is raised by the evidence, the trial court
must charge the jury that a reasonable doubt on the issue
requires the jury to aquit the defendant. Texas penal Code
§2.03(d); Shaw v. State, 243 S.W.3d 647, 657-58 (Tex.Crim.App.
(2007). The evidence presented at trial was clearly presented
to raise the self-defense theory as required by law. The victim,
Bobby Ray Taylor had commited an attempted aggravated assault
with a deadly weapon by trying to run over the Petitioner with
a car. (RR v. 4 pp. 157-158). Further, the victim did in fact
assault Petition with a weapon by hitting him with a pool cue
or other . unknown weapon., (RR v.4 pp. 159-160). The victim
also told Petitioner in the presence of many witnesses that
"mother fucker, I'm going to get a gun" in which minutes later
a group of people returned with the victim and surrounded
Petitioner and came at him. (State's Ex. 89C @ 31:25).
Petitioner, as anyone else, would have believed that force
was necessary in the present sitution to avoid further attack,
assault or death at the hands of the victim. This clearly
establishes and raises the issue of self-defnse in accordance
with Texas law. Texas Penal Code § 9.31. Petitioner requested
the court to give jury instruction on self-defense but ws denied.
(RR v.6 p. 14).
Page 3,
A trial court has no "discretion" in determining what the
law is or applying the law to the facts. Thus, a clear failure
by the trial court to annalyze or apply the law correctly will
constitute an abuse of discretion, and may result in appellate
reversal by extraordinary writ. Walker v. Packer, 827 S.W.
2d 833, 840 (Tex. 1992). The law of jury instruction on self-
defense is clear and the evidence presented in the case was
legally sufficient to give the jury an instruction on self-
defense but the trial court abused it's discretion and refused
the request for the instruction!
GROUND TWO RESTATED:
THE FIFTH COURT OF APPEALS ERRED IN DETERMINING THAT THE
TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE
PETITIONER'S MOTION TO SUPPRESS HIS CONFESSION.
Petitioner is a mentally disabled person and at the time
of the intense interrogation by Collin County Sheriff's Deputies
Petitioner was heavely medicated and confussed. The tactics
used by the Deputies were of such an intense mesure upon the
Petitioner that he was asked if he needed medical attention.
(State's Ex. 89C @ 44:40).
Confessions and other coerced evidence from a defendant
are not admissible at trial. Chavez v. Martinez, 538 U.S. 760,
770 (2003). To determine if a defendant's statements were
involuntary, a court must ask whether, under the totality of
the circumstances, law enforcement officials obtained the
evidence by overbearing the will of the accused. Haves v.
Wash, 373 U.S. 503, 513-14 (1963) This inquiry centers upon:
(1) the conduct of law enforcement officials in creating pressure,
Page 4.
and (2) the suspect's capacity to resist that pressure. Mincey
v. Arizona, 437 U.S. 385, 399-401 (1978).
More specifically, to determine whether a defendant's state
ment is the product of coercion and therefore involuntary, courts
commonly consider: (1) the location of the questioning(Miranda
v. Arizona, 384 U.S. 436, 457-58 (1966)), (2) whether Miranda
warnings were given (U.S. v. Solis, 299 F.3d 420, 439-40 (5th
Cir. 2002)), (3)and whether the accused initiated contact with
law enforcement officials ( U.S. v. Thonqsophaprn, 503 F.3d
51, 56 (5th Cir. 2007)), An accused's personal characteristics,
such as youth (U.S. v. Michael C., 442 U.S. 707, 725-26 (1979)),
drug problem:- (U.S. v. Reynolds, 367 F.3d 294, 299 (5th Cir.
2004)), physicial condition (U.S. v. Huahes, 640 F.ed 428, 439
(5th Cir. 2011)), and experience with the criminal justice system
(U.S. v. Collins, 40 F. 3d 95, 98 (5th Cir. 1994)) are also
factors used to determine voluntariness of a confession.
Due to the strategy of the Sheriff's Deputies the confession
by the Petitioner was involuntary as it was based on deceit
and coercion in violation of the U.S. Constitution and Article
38.21 of the Texas Code of Criminal Procedure. Henderson v. State,
962 S.W. 2d 544, 564 (Tex.Crim.App. 1997). Petitioenr being
an MHMR patient was under heavy medical treatment and under
extreme emotional and physical pressure as his wife was in the
hospital where the interrogtion was conducted. As clearly
outlined in the appellate brief on pages 17-19, the Deputies
Page 5.
continuously pressured Petitioner by coercion in telling him
they would have done the same thing and what the victim had
done was unacceptable. Further, tellinq Petitioner that after
all was said and done they would all go their separate ways
which clearly made Petitioner believe that no further action
would be taken against him after the interrogation. The totality
of illegal tactics used by the Sherif's Deputies and the mental
disability of Petitioner and that his being under psychiatric
medication, the confession was untruthful and involuntary and
should have been suppressed by the trial court.
Even the Deputies claimed that they were putting "words
in [Petitioner's] mouth." (State's Ex. 89C @ 26:45) However,
the illegal interrogation continued and clearly resulted in
?>n involuntary confession that the trial court should have
suppressed. it was an abuse of discretion for the trial court
to allow the illegal confession to be heard and presented to
the jury as it resulted in Petitioner being convicted of a murder
he never committed! Id. Walker @ 840.
T'he fifth District Court of Appeals has committed a grave
error in making a rulinq that affirms the murder conviction
in this case based on an involuntary confession and this Court
should revers with instructions to suppress the confession and
order a new trial.
Page 6.
PRAYER FOR RELIEF
Wherefore, Petitioner prays that this Court will give
review of this case and after said review:
(1) enter an Order reversing the Appeals Court's opinion;
(2) enter an Order that the trial court abused it's
discretion and erred in not including a jury instruction on
self-defense,
(3) enter an Order that the trial court abused it's
discretion in not suppressing the involuntary confession, and
(4) enter an Order granting Petitioner any and all further
relief to which he is justly entitled.
Respectfully submitted,
Alonaft Gi
Clements Unit-1867695
9601 Spur 591
Amarillo, TX 79107-9606
Jan'aury 20, 2015
CERTIFICATE OF SERVICE
This is to certify that I have on this .day of January,
2015, served a true and exact copy of this document on the
Respondent by placing the same in the prison mail system, postage
paid, addressed to:
Wes Wynn,
Assistant District Attorney
2100 Bloomdale Rd., Suite 20004
McKinney, TX 75071
Alonz357 S.W.3d 645, 649 (Tex. Crim. App. 2012); Abdnor v. State, 871 S.W.2d 726,
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731 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
First, we must determine whether error occurred. Wooten v. State, 400 S.W.3d 601, 606 (Tex.
Crim. App. 2013); Abdnor, 871 S.W.2d at 732. If there is error in the charge, we must then
analyze whether sufficient harm resulted from the error to require reversal. Wooten, 400 S.W.3d
at 606. Under this second step, the degree of harm necessary for reversal generally depends on
whether the appellant properly preserved the error by objection. Middleton v. State, 125 S.W.3d
450, 453 (Tex. Crim. App. 2003). If error has been properly preserved, reversal is required if the
error is "calculated to injure the rights of defendant," meaning there must be some harm. Tex.
Code Crim. Proc. Ann. art. 36.19 (West 2006); Sakil v. State, 287 S.W.3d 23, 25-26 (Tex.
Crim. App. 2009); Almanza, 686 S.W.2d at 171. This standard requires the reviewing court to
find that the defendant "suffered some actual, rather than merely theoretical, harm from the
error." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). In evaluating whether
there was some harm from the error, we consider "the entire jury charge, the state of the
evidence, including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a whole."
Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting Almanza, 686 S.W.2d at
171). In analyzing harm from a jury charge error, neither the State nor the defense has a burden
to show harm. Reeves, 420 S.W.3d at 816.
We review a trial court's decision not to include a requested instruction on a defensive
issue in the jury charge for abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex.
Crim. App. 2000). In doing so, "we view the evidence in the light most favorable to the
defendant's requested submission." Bufkin v. State, 207 S.W.3d 779, 781 (Tex. Crim. App.
2006).
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B. Applicable Law
A trial court is required to submit a jury charge that sets out the law applicable to the
case. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). A defendant who requests a
self-defense instruction is entitled to that instruction "if the issue is raised by the evidence,
whetherthat evidence is strong or weak, unimpeached or contradicted, and regardless of what the
trial court may think about the credibility of the defense." Ferrel v. State, 55 S.W.3d 586, 591
(Tex. Crim. App. 2001). "Raised by the evidence" means "there is some evidence, from any
source, on each element of the defense that, if believed by the jury, would support a rational
inference that th[e] element is true." Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App.
2007).
Section 9.31(a) of the Texas Penal Code, titled "Self-Defense," provides in part that "a
person is justified in using force against another when and to the degree the actor reasonably
believes the force is immediately necessary to protect the actor against the other's use or
attempted use ofunlawful force." Tex. Penal Code Ann. § 9.31(a) (West 2011). To use deadly
force in self-defense, the actor must be authorized to use force under section 9.31 and must
reasonably believe that deadly force is immediately necessary to (1) protect the actor against the
other's use or attempted use of unlawful deadly force or (2) prevent the other's imminent
commission of aggravated kidnapping, murder, sexual assault, or robbery. Id. §§ 9.32(a),
9.31(d). '"Reasonable belief means a belief that would be held by an ordinary and prudent man
in the same circumstances as the actor." Id. § 1.07(a)(42) (West Supp. 2014); see also Valentine
v. State, 587 S.W.2d 399, 401 (Tex. Crim. App. 1979) (in accordance with penal code, "a
reasonable apprehension ofdanger, whether it be actual or apparent, is all that is required before
one is entitled to exercise the right of self-defense against his adversary"). The use of force
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against another is not justified in response to verbal provocation alone. Tex. Penal Code Ann.
§ 9.31(b)(1).
C. Application ofLaw to Facts
In his first issue, appellant contends the trial court erred by not including his requested
jury instruction on self-defense in the charge of the court because there was "some evidence" at
trial that appellant was entitled to that instruction. Specifically, appellant asserts,
Evidence presented at trial was that Bobby Ray Taylor had attempted to run over
Appellant with a car. There was some indication that on the night he was killed,
Taylor may have hit Appellant with a pool cue, or some other type of stick. Also
on the night he was killed, Taylor told Appellant, "[expletive], I'm going to get a
gun" and Appellant stated that a group of people then returned with the victim and
"came at him."
(citations to record omitted). According to appellant, "the jury, not the court should have made
the determination as to which account of the incident to believe."
The State responds that the evidence did not support an instruction on self-defense.
According to the State,
There was no evidence indicating that the victim had used or attempted to use
deadly force against Appellant in order to justify Appellant's conduct. Appellant
relies on incidents that occurred before—not during—the offense and were no
more than threats. These did not demonstrate either an immediate need for self-
defense or a use or attempted use of deadly force and thus did not require a self-
defense instruction.
Further, the State argues any error was harmless.
The record shows that in the 2012 interview described above, appellant stated "they"
tried to "run over" him. During trial, appellant testified (1) he was referring to an incident
approximately a week before Taylor was shot and (2) Taylor was not in the vehicle involved. In
support of his assertion on appeal that "[e]vidence presented at trial was that [Taylor] had
attempted to run over Appellant with a car," appellant cites Selman's testimony described above.
However, the record does not show Selman testified as to who attempted to "run over" appellant.
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Further, Selman testified the alleged attempt to "run over" appellant was "unspecified in date."
Appellant's testimony that such incident took place on a date other than the date Taylor was
killed is not contradicted by Selman's testimony or any other evidence in the record. We cannot
agree with appellant that the evidence shows conflicting accounts of that incident.
Next, we address appellant's assertion that "[tjhere was some indication that on the night
he was killed, Taylor may have hit Appellant with a pool cue, or some other type of stick."
Again, appellant cites Selman's testimony described above to support that assertion. However,,
that testimony does not include any statement by Selman that Taylor "may have hit Appellant"
with a stick. Rather, Selman testified that during the 2012 interview, appellant (1) described
Taylor "chasing" him with "a stick of some sort" and (2) stated he was not hit with a pool stick.
Selman's testimony did not address the timing of the stick incident. The record shows
appellant's only mention of a stick during the interview was the following statement: "We didn't
fight. [Taylor] picked up a stick on me and ran through the fence. And that's when he got his
momma and them." Appellant's statement as to the timing of that incident, i.e. that it preceded
Taylor running away, is not contradicted by any evidence in the record.
Finally, appellant contends that on the night Taylor was killed, (1) Taylor told him,
'"[expletive], I'm going to get a gun'" and (2) Taylor returned with a group of people and "they
came at [appellant]." In support of that contention, appellant cites the video recording of the
2012 interview. However, appellant stated in the interview that subsequent to that incident, he
encountered Taylor again later that evening at the pool hall. Further, appellant testified at trial
(1) the people in the group "were just calling me names" and (2) he walked away and was not
followed.
On this record, we cannot agree with appellant that there is some evidence to support a
reasonable belief by him that the shooting in question was "immediately necessary" to protect
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him from any of the three alleged dangers he describes. See Tex. Penal Code Ann. §§ 9.31(a),
9.32(a); Shaw, 243 S.W.3d at 657-58; see also Trammell v. State, 287 S.W.3d 336, 341 (Tex.
App.—Fort Worth 2009, no pet.) (threat made several hours earlier did not justify use of deadly
force).
Further, any error in denying the requested self-defense instruction is reversible only if
the record shows "some harm" to appellant. See Sakil, 287 S.W.3d at 25-26; Barron, 353
S.W.3d at 883. The evidence in this case included appellant's trial testimony that the "threat"
upon which his claim of self-defense was based consisted of "just words." Additionally, (1) the
charge of the court allowed for conviction on the lesser included offense of voluntary
manslaughter, (2) the jury was instructed in part that "adequate cause" for purposes of voluntary
manslaughter included "cause that would commonly produce a degree of. . . terror in a person of
ordinary temper sufficient to render the mind incapable of cool reflection," and (3) the closing
arguments of both sides addressed alleged "threats" made against appellant. The jury rejected
the option to convict appellant on the lesser included offense ofvoluntary manslaughter. On this
record, we conclude any error by the trial court in denying appellant's requested self-defense
instruction was harmless. See Cornet v. State, 417 S.W.3d 446, 453-54 (Tex. Crim. App. 2013)
(omission of defendant's requested defensive jury instruction was harmless error where verdict
was strong indication jury rejected defendant's defensive theory).
We decide appellant's first issue against him.
III. DENIAL OF APPELLANT'S MOTION TO SUPPRESS
A. Standard ofReview
In reviewing a trial court's ruling on a motion to suppress, an appellate court must apply
an abuse of discretion standard and overturn the trial court's ruling only if it is outside the zone
of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011)
-17-
(citing State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006)). We give almost complete
deference to the trial court's determination of historical facts and mixed questions of law and fact
that rely upon an assessment of the credibility and demeanor of a witness, but apply a de novo
standard of review to pure questions of law and mixed questions that do not depend on
credibility determinations. Id. at 923. If the trial court makes express findings of fact, we review
the evidence in the light most favorable to the trial court's ruling and determine whether the
evidence supports those factual findings. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim.
App. 2010). We must uphold the trial court's ruling if it is reasonably supported by the record
and correct under any applicable theory of law. Wade v. State, All S.W.3d 661, 667 (Tex. Crim.
App. 2013); Hereford v. State, 339 S.W.3d 111, 117-18 (Tex. Crim. App. 2011).
Generally, we limit the scope of our review to the evidence adduced at the suppression
hearing. See Gutierrez v. State, 111 S.W.3d 680, 687 (Tex. Crim. App. 2007); Rachal v. State,
917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, when the parties subsequently re-
litigate the suppression issues at the trial on the merits, we consider the evidence from both the
suppression hearing and the trial in our review of the trial court's determination. Gutierrez, 111
S.W.3d at 687.
B. Applicable Law
Article 38.21 of the Texas Code of Criminal Procedure provides "[a] statement of an
accused may be used in evidence against him if it appears that the same was freely and
voluntarily made without compulsion or persuasion, under the rules hereafter prescribed." Tex.
Code Crim. Proc. Ann. art. 38.21; see Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim.
App. 2008). In assessing whether the voluntariness requirement of article 38.21 has been met,
we consider the totality of the circumstances surrounding the acquisition of the statement,
including such factors as intelligence, age, experience, education, and maturity. Creager v.
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State, 952 S.W.2d 852 (Tex. Crim. App. 1997) (citing Armstrong v. State, 718 S.W.2d 686, 693
(Tex. Crim. App. 1985)); Delao v. State, 235 S.W.3d 235, 241 (Tex. Crim. App. 2007). "The
ultimate question is whether the suspect's will was overborne." Creager, 952 S.W.2d at 852.
Pursuant to article 38.22, section 6, of the code of criminal procedure, "[i]n all cases
where a question is raised as to the voluntariness of a statement of an accused, the court must
make an independent finding in the absence of the jury as to whether the statement was made
under voluntary conditions." Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West. Supp. 2013).
Additionally, "[i]f the statement has been found to have been voluntarily made and held
admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the
court must enter an order stating its conclusion as to whether or not the statement was voluntarily
made, along with the specific finding of facts upon which the conclusion was based, which order
shall be filed among the papers of the cause." Id. Section 6 of article 38.22 applies to both an
accused's custodial and non-custodial statements. Oursbourn, 259 S.W.3d at 171.
Inquiries as to voluntariness under article 38.22 do not turn solelyon police overreaching.
See id. at 172; Leza v. State, 351 S.W.3d 344, 352 (Tex. Crim. App. 2011). Circumstances
unattributable to the police that nevertheless adversely impact an accused's ability to resist
reasonable police entreaties, such as intoxication, are "factors" in the voluntariness inquiry,
though they "are usually not enough, by themselves, to render a statement inadmissible under
Article 38.22." Leza, 351 S.W.3d at 353.
Article 38.23(a) of the code of criminal procedure provides in part that no evidence
obtained in violation of any provisions of the constitution or laws of Texas or the United States
shall be admitted in evidence against the accused on the trial of any criminal case. Tex. Code
Crim. Proc. Ann. art. 38.23(a) (West 2005).
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C. Application ofLaw to Facts
In his second issue, appellant contends the trial court abused its discretion by denying his
motion to suppress his confession because "the detectives engaged in coercive tactics and
trickery and deception to induce Appellant to confess to shooting the victim, thereby rendering
Appellant's confession involuntary." According to appellant, (1) he was "intimidated" by "the
presence of not one, but two sheriffs deputies, one of whom shows his gun to Appellant at one
point in the interview" and the fact that the room where the interview took place was "an actual
police interrogation room" within the hospital where he was visiting his wife; (2) he informed
the officers during the interview that he was currently taking "psych" medication; (3) he was
"distracted" by the medication he was takingand his wife's "condition"; (4) he was experiencing
"health problems that are so severe that at one point Driver asks him if he needs a doctor"; (5)
the officers made a number of statements "clearly calculated to appeal to [his] sympathies"; (6)
the officers misled him by "continually making statements that would lead him to believe thathis
actions were justified and there would be no consequences of a confession"; (7) the officers
made "promises" that he was "going to be able to walk out of the interrogation room at the
conclusion of the interview" and such "promises" were "phrased" in a way that led him "to
further believe that there would be no future consequences to a confession because the officers
failed to inform him that they would be charging him with murder"; and (8) the officers "fill[ed]
in details for [him]" after he "insisted] that he does not remember the details of the incident."
According to appellant, "each of these facts, standing alone, would not necessarily support a
conclusion that his confession was coerced." However, he argues, "under the totality of the
circumstances,... the combined factors listed above rendered the statement involuntary."
The State responds in part that the trial court properly admitted the evidence respecting
the 2012 interview in question because appellant's statement was voluntary. According to the
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State, the officers' conduct during the interview was not coercive, they did not make any threats
or promises to induce appellant's confession, and there was no evidence of any physical or
mental problems that would render appellant unable to give a voluntary statement.
The record shows that although the trial court held a voluntariness hearing outside the
jury's presence as required by section 6 of article 38.22, no written conclusion and findings of
fact as described in that section were filed in the trial court.3 See Tex. Code Crim. Proc. Ann.
art. 38.22, § 6; see also Oursbourn, 259 S.W.3d at 171 (section 6 of article 38.22 applies to both
an accused's custodial and non-custodial statements). Therefore, we abated this appeal and
requested the trial court to comply with the requirements of article 38.22, section 6. See Vasquez
v. State, 411 S.W.3d 918, 920 (Tex. Crim. App. 2013). Subsequently, the trial court made
written conclusions and findings of fact that have been filed in this Court in a supplemental
clerk's record.
The trial court's findings of fact include the following: (1) appellant was middle-aged and
had an extensive history with the criminal justice system; (2) the police officers were in plain
clothes, polite, and nonconfrontational during the interview; (3) the officers' tone was
conversational, not angry, and they did not threaten appellant; (4) the officers' sympathetic
statements were not the type of statements that would overbear a person's will; (5) the officers'
statements that suggested appellant's actions might have been justified as self-defense were not
coercive; (6) such statements are a long-accepted interview technique that are not inherently
coercive; (7) the officers did not promise appellant that he would not be charged or face further
consequences for his actions; (8) Driver expressly told appellant that he would have to talk to the
police and likely the grand jury at a later date, demonstrating he did not promise appellant he
would not be charged; (9) appellant did not express any concern about his wife's medical
' Neither party made arequest atany level ofthe proceedings for such conclusion and findings.
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condition during the interview, nor does the record reflect whether her condition was serious or
minor; (10) the mere fact of his wife's hospitalization does not render appellant's statements
involuntary; (11) appellant mentioned during the interview that he was on "psych medications,"
but he did not identify the medications or suggest they affected his mental state; (12) simply
being on medication does not make appellant's statements involuntary; (13) appellant suffered
several coughing fits during the interview; (14) he was offered waterby the officers and declined
any medical attention; (15) appellant's coughing did not appear to affect his mental state in any
way and did not render his statements involuntary; (16) the testimony of Driver and Selman
regarding appellant's interview was consistent with the recorded interview; and (17) the
testimony of Driver and Selman is credible.
Additionally, the trial court filed written conclusions of law that state as follows: (1)
appellant knowingly, intelligently, and voluntarily waived his rights before being questioned by
the police; (2) the police interview was not coercive; (3) the interview was recorded and met the
requirements of Article 38.22 of the code of criminal procedure; and (4) the statements from
appellant's 2012 interview were admissible.
First, we address appellant's complaint that he was "distracted" due to his medications.
When the record reflects evidence of narcotics, medication, or other mind-altering agents, the
question becomes whether those intoxicants prevented the accused from making an informed and
independent decision to confess. See Paolilla v. State, 3A1 S.W.3d 783, 792 (Tex. App —
Houston [14th Dist] 2011, pet. ref d) (citing Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim.
App. 1996)). The record shows appellant told the officers during the 2012 interview that he was
on "psych" medication, but did not identify that medication at that time. During trial, appellant
testified (1) he was on "Trazodone, Restidone, and Benadryl" at the time ofthe 2012 interview;
(2) he feels those medications "affect" his memory; and (3) his memory was better at the time of
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the 2012 interview than at the time of trial. However, appellant does not explain, and the record
does not show, how such medications affected his decision to confess. See id. Further, the
record in this case shows Driver testified he felt appellant was "lucid" at the time of the 2012
interview and the trial court found Driver's testimony credible.
Second, appellant does not explain, and the record does not show, how his "health
problems" or those of his wife affected the voluntariness of his confession. Appellant told
Selman at the start of the interview that his wife was going to "be all right." Appellant did not
otherwise address her health during the interview. Further, appellant's only apparent "health
problem" during the interview was a cough for which he was offered, and declined, medical
attention.
Third, we address appellant's contention that he was "intimidated" by (1) being in "an
actual police interrogation room" and (2) the presence of two officers, "one of whom shows his
gun to Appellant." The record shows (1) the officers were in plain clothes and were seated
across a small table from appellant in an otherwise empty interview room; (2) Driver rarely
spoke during the interview; (3) when asking appellant about the type of gun he used, Selman
touched, but did not remove, a gun that was in plain view in a holster on his belt; (4) Driver
testified no "scare tactics" or "anything like that" were used during the interview; and (5) the
trial court found Driver's testimony credible. Additionally, the record shows appellant had been
arrested and incarcerated for other offenses and thus had experience with the criminal justice
system. See Green v. State, 934 S.W.2d 92, 100 (Tex. Crim. App. 1996) (stating that prior
experience with criminal justice system weighs in favor of finding appellant's confession
voluntary); cf. Sample v. State, No. 10-12-00038-CR, 2014 WL 1268827, at *6 (Tex. App.—
Waco Mar. 27, 2014, no pet.) (rejecting appellant's complaint that he was intimidated by
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presence of two officers at interview, where appellant had previous experience with police
interrogation) (mem. op., not designated for publication).
Fourth, appellant complains the officers made statements "clearly calculated to appeal to
[his] sympathies."4 There is no per se rule against the use of psychological tactics in
interrogations. See Hernandez v. State, All S.W.3d 712, (Tex. App.—Amarillo 2014, pet.
ref d); Mason v. State, 116 S.W.3d 248, 260 (Tex. App.—Houston [14th Dist.] 2003, pet. ref d).
"For example, an interrogator may play on a suspect's sympathies or explain that honesty might
be the best policy for a criminal who hopes for leniency." Mason, 116 S.W.3d at 260. These
ploys may play a part in the suspect's decision to confess, but so long as that decision "is a
product of the suspect's own balancing of competing considerations," the confession is
voluntary. Id.; see also Gomes v. State, 9 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.]
1999, pet. ref d) ("false friend" technique was merely an "attempt to facilitate communication by
being friendly and supportive" and did not overcome voluntariness of confession). Appellant
does not address, and the record does not show, how the statements described by him respecting
his "sympathies" overbore his own balancing of competing considerations.
Fifth, appellant asserts the officers "continuefd] to fill in details for [him]" after he
"insisted] that he does not remember the details of the incident." According to appellant,
Selman stated, "I'm putting words in your mouth and I don't want to," then "continue[d] to do
so." Appellant does not explain, and the record does not show, how Selman's continuing to "fill
in details" overbore his will. Further, the record shows Selman also stated during the interview
(1) "I don't want anything out of here that ain't true" and (2) "I don't want anything that didn't
happen."
4In support ofthis complaint, appellant cites the following statements by Selman and Driver from the recordings: (1) "Things like this, they
weigh ona man"; (2) "You've had a lot ofbad things happen toyou"; (3) "You've got a soul and a heart"; and (4) "Have you ever wondered why
bad things happen to you?"
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Finally, we address together appellant's contentions that the officers (1) misled him by
"continually making statements that would lead him to believe that his actions were justified and
there would be no consequences of a confession" and (2) made "promises" respecting appellant
being able to "walk out of the interrogation room" that were phrased in a way that led appellant
"to further believe that there would be no future consequences to a confession because the
officers failed to inform him that they would be charging him with murder."5 The record shows
none of the statements cited by appellant that allegedly suggested his actions were "justified"
addressed any "consequences of a confession." Further, for a promise to render a confession
invalid under article 38.21, the promise must have been 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, 111 S.W.3d 792, 794 (Tex. Crim. App. 2004). While appellant
cites several alleged "promises" by the officers that he would be allowed "to walk out of here,"
appellant does not cite or address Selman's statement, "You'll probably talk to us later. At some
point we'll have to take it to the grand jury." That statement made clear that although appellant
was not going to be arrested at the time of the interview, criminal charges were possible. We
cannot agree with appellant that the record shows any "promise" of "no future consequences to a
confession." See id.
On this record, considering the totality of the circumstances, we conclude the trial court
did not err by concluding appellant's statement in question was voluntary. See Creager, 952
S.W.2d at 852.
5In support ofthese contentions, appellant cites the following statements ofthe officers from the recordings: (1) "IfI was being beat up or
assaulted, and I was defending myself and something happened, and I somehow managed to geta gun and shoot someone and panicked and
didn't know what to do and didn't want to getin trouble, I might take the person out to therock pitand try to hide him and nottell anybody—
that's understandable"; (2) "I would have probably done thesame thing back then"; (3) "It sounded like more of a self-defense thing"; (4) "Had
Bobby not been running his gums, we probably wouldn't be here today"; (5) "Bobby got himself killed —I can see that"; (6) "[Bobby is]
obviously a racist"; (7) "Ithink he was threatening and challenging you"; (8) "He called you a [expletive]. That's unacceptable"; (9) "He pushed
the wrong buttons"; (10) "Tell us why and we're going towalk out ofhere"; and (11) "Like Itold you, you're going towalk out ofhere and we're
going to go our separate ways."
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We decide against appellant on his second issue.
IV. CONCLUSION
We decide appellant's two issues against him. The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47.2(b)
130832F.U05
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Court of Appeals
Jffiftlj district of ®exas at Ballas
JUDGMENT
ALONZO GRAYSON, JR., Appellant On Appeal from the 296th Judicial District
Court, Collin County, Texas
No. 05-13-00832-CR V. Trial Court Cause No. 296-81500-2012.
Opinion delivered by Justice Lang, Justices
THE STATE OF TEXAS, Appellee Bridges and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 17th day of November, 2014.
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