Leonard Perry Hammons v. State ( 2005 )

                              NUMBER 13-01-668-CR

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

LEONARD PERRY HAMMONS,                                                     Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                  Appellee.

      On appeal from the 36th District Court of Aransas County, Texas.

                               MEMORANDUM OPINION

                       Before Justices Yañez, Rodriguez, and Garza

                            Memorandum Opinion by Justice Yañez

A jury found appellant, Leonard Perry Hammons, guilty of aggravated robbery.^[1]  The trial court assessed his punishment at sixty-five years= imprisonment and a $10,000.00 fine.  In four issues, appellant contends (1) the trial court erred in failing to make and file findings of fact and conclusions of law concerning the voluntariness of appellant=s written confession (issue one); (2) the trial court erred in denying his motion to suppress his confession because it was obtained (a) after he invoked his right to counsel (issue two) and (b) as a result of threats and a promised benefit (issue three); and (3) the evidence is legally insufficient to support the jury=s finding that the knife used in the robbery qualified as a deadly weapon (issue four). We affirm.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court=s decision and the basic reasons for it.^[2]

The record contains the trial court=s certification that this Ais not a plea-bargain case, and the defendant has the right of appeal.@^[3]

                                       Findings of Fact and Conclusions of Law

In his first issue, appellant contends the trial court erred by failing to make and file written findings of fact and conclusions of law regarding the voluntariness of his confession.  On August 31, 2004, we abated appellant=s appeal and remanded the cause to the trial judge for compliance with article 38.22, section 6 of the code of criminal procedure.^[4]  On September 3, 2004, the trial court filed written findings of fact and conclusions of law regarding the voluntariness of appellant=s confession. The trial court=s findings and conclusions were provided to this Court by means of a supplemental clerk=s record on September 9, 2004.  Accordingly, appellant=s first issue is moot.

                                                            Motion to Suppress

 In his second and third issues, appellant contends the trial court erred in denying his motion to suppress his confession because it was obtained (a) after he invoked his right to counsel (issue two) and (b) as a result of threats and a promised benefit (issue three).

A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion.^[5]  In a suppression hearing, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony.^[6]  In reviewing a trial court's ruling on a motion to suppress, we afford almost total deference to the trial court's determination of the historical facts that the record supports, especially when the trial court's findings turn on evaluating a witness's credibility and demeanor.^[7]  We afford the same amount of deference to the trial court's rulings on Aapplication of law to fact questions,@ also known as Amixed questions of law and fact,@ if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor.^[8]  However, we review de novo questions of law and Amixed questions of law and fact@ that do not turn on an evaluation of credibility and demeanor.^[9]  We uphold a trial court=s ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case.^[10]

The determination of whether a statement is voluntary, which is the issue in this case, is a mixed question of law and fact which turns on the credibility of the witnesses.^[11]  Accordingly, the trial court's determination should be granted almost total deference on appeal.^[12]

In its findings of fact and conclusions of law, the trial court found appellant was given Miranda^[13] warnings and waived his rights prior to giving each of his written statements.^[14]  The court concluded that appellant knowingly and voluntarily waived his rights and made the statements and that the statements were not the result of any inducement, threat or promise. 

In his second issue, appellant contends the trial court erred in failing to suppress his written statement because it was Aobtained by interrogation after he had requested in writing to speak to an attorney.@  At a May 29, 2001 hearing on appellant=s motion to suppress, the evidence concerning appellant=s request for an attorney was conflicting.  In support of his argument that his November 27, 2000 statement^[15] was obtained after he had requested an attorney, appellant introduced into evidence a hand-written general request form, signed by appellant and dated November 27, 2000, in which appellant wrote, AI would like a [sic] Attorney as soon as it can be done.  Thank you for your time.@  In the AAction Taken@ portion of the form, an officer made the notation, APlease fill out Attny request form.@  The officer=s signature is dated A11-28-00  06:14.@  At the suppression hearing, appellant testified that he submitted his written request for an attorney on the morning of November 27th, before the investigating officer, Jerry Lawing, came to the jail to talk to him and before he gave his statement later that day.  Appellant also testified that when he gave his statement on November 27th, he told Officer Lawing he had requested an attorney, but claimed  the officer nonetheless continued to ask him questions.

In contrast, Officer Lawing testified that when appellant was brought to his office on the afternoon of November 27th, he again advised appellant of his Miranda rights, including his right to have an attorney present during questioning. Officer Lawing also testified that (1) appellant did not ask for an attorney at any time before or during the interview on November 27th; (2) prior to the interview, Lawing directly asked appellant if he wanted an attorney and appellant said he did not; and (3) when Lawing took appellant=s statement, he was unaware appellant had requested an attorney.

Appellant contends his written statement is inadmissible because it Awas obtained by interrogation after he had requested in writing to speak to an attorney.@^[16]  Citing Edwards v. Arizona, 451 U.S. 477, 484-85 (1988), appellant argues his written waiver of  rights is invalid because after he invoked his right to counsel, the police were prohibited from questioning him unless he initiated the contact with the police and it is undisputed that the police initiated the contact that resulted in the statement. 

The State responds that because the request form does not reflect what time  it was submitted and it was signed by a jailer on November 28th, it can be inferred that the request was not completed until some time on November 28th.  The State also argues that appellant=s written request was not a valid invocation of his Fifth Amendment right to counsel because such a request must be, Aat a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.@^[17] 

As noted, the trial court expressly found that prior to making his statement on November 27th, appellant knowingly and voluntarily waived his rights.  The trial court is the sole trier of fact and judge of the weight and credibility of the evidence.^[18]  The trial court could have determined that appellant voluntarily gave his statement prior to requesting an attorney or that he voluntarily withdrew his request when he was interviewed by Officer Lawing.^[19]  The testimony of Officer Lawing supports the trial court=s findings.^[20]  We hold the trial court did not abuse its discretion in denying appellant=s motion to suppress based on his claim that his statement was obtained after he requested an attorney.^[21]  We overrule appellant=s second issue.

In his third issue, appellant contends his written statement is inadmissible because it was obtained as a result of threats and a promised benefit.  At the suppression hearing, appellant testified he gave his statement in exchange for Officer Lawing=s promise that he would receive a sentence of only twenty years.  He testified he would never have signed the statement if he had not been promised a twenty-year sentence.

Officer Lawing testified that although he informed appellant of the range of punishment for habitual offenders, he did not promise appellant a twenty-year sentence if he confessed.  The trial court found that the statement was made voluntarily and was not the product of inducement, threat, or promise.  Officer Lawing=s testimony supports the trial court=s findings.^[22]  We hold the trial court did not abuse its discretion in denying appellant=s motion to suppress based on his claim that his statement was obtained as a result of threats and a promised benefit.^[23]  We overrule appellant=s third issue.

                            Sufficiency of Evidence of Knife as a Deadly Weapon

In his fourth issue, appellant contends the evidence is legally insufficient to support the jury=s finding that the knife allegedly used in the robbery was a deadly weapon.  Specifically, appellant argues that the knife used in the robbery was not introduced at trial and that the evidence is therefore insufficient to prove that a deadly weapon was used.

In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.^[24]  This standard gives Afull play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.@^[25]

We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case.^[26]  ASuch a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.@^[27]

The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence.^[28]  As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony.^[29]  The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony.^[30]

The Texas Penal Code defines a deadly weapon as Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@^[31]  Knives are not deadly weapons per se, and the State carries the burden of proving a knife used in an offense was a deadly weapon.^[32]

In determining whether a knife is a deadly weapon, a jury may consider all the facts of a case, including: (1) words spoken by the appellant; (2) appellant's threats and gestures; (3) whether appellant inflicted any injuries; (4) physical proximity of the parties; (5) size, shape, and sharpness of the knife; (6) manner of its use or intended use; and (7) its capacity to cause serious bodily injury or death.^[33]  No single factor is determinative.^[34]  The jury may determine a weapon is deadly even if the weapon is not in evidence.^[35]  In reviewing the record, we consider whether a rational trier of fact could find beyond a reasonable doubtB based on the testimony and evidenceBthat the manner in which appellant used the knife, or intended to use the knife, was capable of causing death or serious bodily injury.^[36]

Here, the victim testified that appellant displayed a knife that Ahad a white handle, like ivory color, a long blade and a point to it, about twelve inches long.@  The victim testified that appellant put the knife up to her chin and neck area and said, AI haven=t hurt you yet, but I will kill you if I have to.@  At trial, the victim identified a knife as being Asubstantially similar@ to the knife used by appellant. She also testified that appellant waved the knife around and that she was afraid he would kill her and her two small children.  We conclude that there was sufficient evidence for a jury to find that the manner of the knife=s  use or intended use was capable of causing death or serious injury.^[37]  We overrule appellant=s fourth issue.

We affirm the trial court=s judgment. 

LINDA REYNA YAÑEZ

Justice

Do not publish.  Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed this

the 21st day of September, 2005.

---

^[1] See Tex. Pen. Code Ann. ' 29.03 (Vernon 2003). Appellant was also charged with aggravated sexual assault, but the jury found him not guilty of that offense. 

^[2] Tex. R. App. P. 47.4.

^[3] See Tex. R. App. P. 25.2(a)(2).

^[4] See Tex. Code Crim. Proc. Ann. art. 38.22, ' 6 (Vernon 2005); Urias v. State, 155 S.W.3d 141, 142 (Tex. 2004) (holding that where trial court fails to issue requisite findings of fact and conclusions of law pursuant to article 38.22, section 6, proper procedure is to remand for compliance with statute).

^[5] See Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)).

^[6] State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).

^[7] State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

^[8] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89.

^[9] Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d. at 89.

^[10] Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

^[11] See Garcia v. State, 15 S.W.3d 533, 535 (Tex. Crim. App. 2000).

^[12] Id.; see Chavero v. State, 36 S.W.3d 688, 697 (Tex. App.BCorpus Christi 2001, no pet.) (holding where evidence concerning appellant=s possible invocation of right to counsel was conflicting, requiring evaluation of witnesses= credibility and demeanor, appellate court reviews suppression issues under an abuse of discretion standard, and must defer to trial court=s findings that are supported by the record). 

^[13] See Miranda v. Arizona, 384 U.S. 436, 467-68 (1966).

^[14] Appellant gave three written statements:  two on November 21, 2000 (State=s Exhibits AA@ and AB@ involving  two other robberies) and one on November 27, 2000 (State=s Exhibit AC@). At issue in this appeal is appellant=s November 27, 2000 statement.

^[15] Appellant=s November 27, 2000 statement reflects it was taken at 3:00 p.m.

^[16] Although appellant cites neither the Fifth nor Sixth Amendment to the United States Constitution, we construe his argument as an alleged Fifth Amendment violation because he argues his statement was obtained after he had requested an attorney.  In support of his argument, appellant cites Edwards v. Arizona, 451 U.S. 477, 484-85 (1988). In Edwards, the U.S. Supreme Court held that once a suspect invokes his Fifth Amendment right to counsel, he cannot be further interrogated by the police until counsel has been provided, or the suspect himself initiates further communication with the police.  See id.

An accused=s Sixth Amendment right to counsel attaches at the initiation of adversarial proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, and no request for counsel need be made by the accused.  See Chavero, 36 S.W.3d at 697.  When an indictment occurs prior to arraignment or any other legal proceeding, the Sixth Amendment right to counsel does not attach before indictment.  See id.  Here, appellant had been in custody since his arrest on November 21, 2000. He was not indicted for the present offenses until February 21, 2001.  Accordingly, we conclude no Sixth Amendment claim is implicated.    

^[17] McNeil v. Wisconsin, 501 U.S. 171, 178 (1991) (emphasis in original).

^[18] See Ballard, 987 S.W.2d at 891.

^[19] See Brownlee v. State, 944 S.W.2d 463, 466 (Tex. App.BHouston [14th Dist.] 1997, pet. ref=d) (holding appellant voluntarily withdrew request for attorney where, during taping of confession, he was asked and expressly stated he did not want a lawyer).

^[20] See Ballard, 987 S.W.2d at 891.

^[21] See Ford, 26 S.W.3d at 672.

^[22] See Ballard, 987 S.W.2d at 891.

^[23] See Ford, 26 S.W.3d at 672.

^[24] Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

^[25] Jackson, 443 U.S. at 319.

^[26] Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).

^[27] Malik, 953 S.W.2d at 240.

^[28] Booker v. State, 929 S.W.2d 57, 60 (Tex. App.BBeaumont 1996, pet. ref'd).

^[29] Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1981); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

^[30] Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).

^[31] Tex. Pen. Code Ann. ' 1.07(a)(17)(B) (Vernon 2004).

^[32] Tisdale v. State, 686 S.W.2d 110, 111 (Tex. Crim. App. 1984).

^[33] Brown v. State, 716 S.W.2d 939, 946‑47 (Tex. Crim. App. 1986).

^[34] Bailey v. State, 46 S.W.3d 487, 491 (Tex. App.BCorpus Christi 2001, pet. ref'd).

^[35] Brown, 716 S.W.2d at 946; Bailey, 46 S.W.3d at 492.

^[36] Tex. Pen. Code Ann. ' 1.07(a)(17)(B) (Vernon 2004); Tisdale, 686 S.W.2d at 114.

^[37] See Tex. Pen. Code Ann. ' 1.07(a)(17)(B) (Vernon 2004); Tisdale, 686 S.W.2d at 114.