Terral Tawon Murray v. State ( 2012 )

Affirmed and Memorandum Opinion filed January 24, 2012.
In The
Fourteenth Court of Appeals
NO. 14-11-00283-CR
TERRAL TAWON MURRAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 1262906
MEMORANDUM OPINION
Appellant Terral Tawon Murray appeals his conviction for capital murder on the
grounds that an inculpatory statement admitted before the jury was involuntary. We
affirm.
BACKGROUND
In March 2009, a Houston Police Department (“HPD”) officer was dispatched to a
report of a suspicious vehicle in the parking lot of a flea market and shopping center. He
arrived at the location and located the vehicle. When he ran the license plate, he learned
the vehicle belonged to Joseph Bivens, Jr., who had been reported missing two days
before. The bodies of Bivens and his cousin, Deandre Goodson, were found
decomposing in the vehicle. HPD Homicide Sergeant Eli Cisneros responded to the
scene and began investigating the deaths of Bivens and Goodson.
Cisneros discovered that appellant‟s cell phone number was the last one called by
Goodson‟s phone. Cisneros contacted appellant, and appellant agreed to come into HPD
homicide division to give a videotaped statement on March 20, 2009. During this
interview, Cisneros and appellant discussed the law of parties in Texas. Appellant
indicated that he understood that “in Texas I guess everybody goes down.” Cisneros
responded that it depends on how much “cooperation” is involved. This interview
produced no leads for the investigation. The investigation was transferred to other HPD
officers, who were unable to develop any suspects.
A little over a year later, Cisneros became the lead investigator again and returned
to the only lead they had: the phone call to appellant from one of the decedent‟s phones.
Examining appellant‟s cell phone records, Cisneros discovered that appellant had been
untruthful about his location when the offense occurred. Cisneros contacted appellant,
and appellant again agreed to come to the homicide division for another videotaped
interview. During this interview on May 7, 2010, appellant implicated two others in the
deaths of Bivens and Goodson and said that he had witnessed part of the offense, but left
before they were killed. Appellant told Cisneros that he would call Cisneros over the
weekend with these individuals‟ names and agreed to come back to the division to show
Cisneros where the offense had occurred.
Appellant contacted Cisneros and told him that Kendrick Lewis and Jeremy
Portier had been involved in the deaths of Bivens and Goodson. On May 10, 2010,
appellant came to the HPD homicide division to direct Cisneros to the location where the
murders had occurred. The conversation between appellant, Cisneros, and his fellow
officer, Ferguson, on the drive to the location and at the location was audio-recorded.
Cisneros indicated to appellant that he could have had either appellant or his
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girlfriend/common-law wife arrested for making false statements, but had not because
appellant was cooperating with the investigation. It is undisputed that during each of
these interactions with police, appellant was considered a witness, not a suspect, in the
deaths of Bivens and Goodson. Appellant voluntarily came to the HPD station for each
interview, was never in custody, and left after each interview.
Cisneros contacted appellant again on May 12, and appellant agreed to come into
the station with more information. Appellant returned to the homicide division and was
again interviewed on videotape by Cisneros. About halfway through this interview,
appellant implicated himself as a party to the deaths of Bivens and Goodson by stating
that he had used a gun to threaten one of the victims when an altercation about a drug
deal started. He stated that he saw Lewis and Portier bind Bivens and Goodson with duct
tape and drag them into another room of the apartment. He also admitted that he saw
Lewis put a bag over Goodson‟s head. He further implicated himself when he admitted
that he helped move the bodies out of the location where the offense occurred. After this
interview, Cisneros arrested appellant.
Appellant was indicted for capital murder on August 10, 2010. Appellant filed a
motion to suppress his fourth statement. The trial court held a hearing on his motion on
March 10, 2011. During this hearing, appellant agreed that the interviews were non-
custodial and asserted that he gave the fourth statement only because the police made
promises of leniency to him. Cisneros testified regarding the four interviews and stated
that he made no promises to appellant during the fourth interview, in which appellant
inculpated himself. Cisneros admitted that he had encouraged appellant to cooperate and
tell the truth. Cisneros further stated that he agreed to help appellant because appellant
was concerned about his safety as a witness to the offense.
At the close of the hearing, the trial court concluded that “[n]o officers threatened,
coerced, intimidated or induced the defendant to give any of his statements” and denied
the motion to suppress. After a trial, a jury found appellant guilty of the charged offense,
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and the trial court sentenced him to life without parole in the Texas Department of
Criminal Justice, Institutional Division. This appeal timely followed.
ANALYSIS
In a single issue,1 appellant asserts that his fourth statement, in which he
inculpated himself, was involuntary because (1) Cisneros misrepresented the law of
parties to appellant during the first interview and (2) Cisneros and Ferguson made
implied promises of leniency during appellant‟s first and third statements.2 Appellant did
not present the first argument to the trial court. Accordingly, he has failed to preserve
any error on this issue, and it is overruled. See Tex. R. App. P. 33.1(a). We thus
consider only whether any “implied promises of leniency” made during appellant‟s first
and third statements rendered appellant‟s inculpatory statement involuntary.
The trial court is the “sole and exclusive trier of fact and judge of the credibility of
witnesses” and evidence at a hearing on a motion to suppress based on the voluntariness
of a confession. Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App. 2007). We give
great deference to the trial court‟s decision to admit or exclude a confession and will
reverse only when the trial court flagrantly abuses its discretion. Id.
Article 38.21 of the Texas Code of Criminal Procedure provides that the
statements of a person accused of a crime “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. art. 38.21. To determine whether a confession
1
Appellant filed a pro se brief in this case. It is well established that appellant is not entitled to
hybrid representation. Ex parte Taylor, 36 S.W.3d 883, 887 (Tex. Crim App.2001) (“Appellants are not
allowed to have „hybrid representation‟ on appeal, in which an appellant and an attorney can present
independent points to an appellate court.”); see Marshall v. State, 210 S.W.3d 618, 620 n. 1 (Tex. Crim.
App. 2006) (court refused to address points raised in appellant‟s pro se brief filed after appellate counsel
filed brief on appellant‟s behalf because appellant had no right to hybrid representation); Patrick v. State,
906 S.W.2d 481, 498 (Tex. Crim. App.1 995) (appellant‟s pro se supplemental brief filed after brief was
filed by appellant‟s appointed counsel presented nothing for review). We therefore do not consider the
arguments appellant made in his pro se brief.
2
Our record contains neither the first two videotaped interviews, nor the audio recording made
when appellant directed the officers to the scene of the crime. Only the fourth videotaped interview was
made part of the record.
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was voluntarily made, we examine the totality of the circumstances. See Delao, 235
S.W.3d at 239. A promise made during a police interrogation may render a confession
involuntary if it was positive, made or sanctioned by someone with apparent authority,
was of some benefit to the defendant, and was of such a character as would likely cause a
person to speak untruthfully.3 E.g., Garcia v. State, 919 S.W.2d 370, 388 (Tex. Crim.
App. 1994) (en banc) (op. on reh‟g). To determine if the alleged promise were likely to
influence appellant to speak untruthfully, we must consider whether the circumstances
surrounding the promise made appellant inclined to confess to a crime he did not commit.
Id. General offers to help a defendant are not likely to induce an accused to make an
untruthful statement, and therefore will not invalidate a confession. Id. (citing Dykes v.
State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983)).
Here, there is no dispute that all four of appellant‟s statements were non-custodial
interviews. Indeed, according to Cisnero‟s testimony during the suppression hearing,
Cisneros considered appellant to be only a witness to the offense, up to the point that
appellant inculpated himself during the fourth interview. Appellant does not direct us to
any “promises” made to him during the fourth interview. In fact, any alleged “promises”
the officers made in this case were made to appellant as a witness, not as a suspect.
Cisneros and Ferguson simply told appellant that he should tell the truth, that cooperating
with the investigation would help him, and that they would assist him through the process
of being a witness to the offense. Cisneros also explained to appellant that he could have
executed a warrant to arrest appellant for making his first false statement, but had not
because appellant was being helpful with the investigation and had agreed to be a witness
against Lewis and Portier, the two individuals appellant had implicated in the offense.
Such statements, even when made to an accused, are not likely to induce him to make a
confession. See id.; see also Muniz v. State, 851 S.W.2d 238, 254 (Tex. (Tex. Crim. App.
App. 1993) (stating that general statements made to a suspect that a confession may result
3
We note that appellant does not allege that the inculpatory statement made during his fourth
interview was untruthful; rather, he argues he would not have made this statement had the officers not
promised him leniency or to help him during the previous three interviews.
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in leniency do not render a confession involuntary because they are statements of fact,
not promises in exchange for a confession); Espinosa v. State, 899 S.W.2d 359, 364 (Tex.
App.—Houston [14th Dist.] 1995, pet. denied) (concluding that even specific and
unequivocal promises may lack the persuasive impact needed to show they would induce
an accused to make an untruthful statement).
The trial court‟s conclusion that appellant‟s statement was admissible was not an
abuse of discretion. Delao, 235 S.W.3d at 238. We overrule appellant‟s sole issue and
affirm the trial court‟s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Brown and Christopher.
Do Not Publish — Tex. R. App. P. 47.2(b).
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