Eric Byron Crayton v. State ( 2015 )

ACCEPTED
03-14-00570-CR
3977757
THIRD COURT OF APPEALS
AUSTIN, TEXAS
2/2/2015 9:23:43 AM
JEFFREY D. KYLE
CLERK
No. 03-14-00570-CR
IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD DISTRICT AUSTIN, TEXAS
AT AUSTIN, TEXAS 2/2/2015 9:23:43 AM
JEFFREY D. KYLE
Clerk
__________________________________________________________________
ERIC BYRON CRAYTON, Appellant
v.
THE STATE OF TEXAS
ON APPEAL FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
TRIAL COURT CAUSE NUMBER CR2012-225
__________________________________________________________________
BRIEF FOR APPELLANT
__________________________________________________________________
Richard E. Wetzel
State Bar No. 21236300
1411 West Ave., Suite 100
Austin, Texas 78701
(512) 469-7943
(512) 474-5594
wetzel_law@1411west.com
Attorney for Appellant
Eric Byron Crayton
Identity of Parties and Counsel
Appellant: Eric Byron Crayton
Trial Counsel for Appellant: Josh and Amanda Erwin
Attorneys at Law
109 E. Hopkins
San Marcos, TX
78666
Appellate Counsel for Appellant: Richard E. Wetzel
Attorney at Law
1411 West Ave. Ste., 100
Austin, TX 78701
Trial and Appellate Counsel for Appellee: Jennifer Tharp
Criminal District Attorney
150 N. Seguin St., Ste. 307
New Braunfels, TX 78130
Trial Judge: Hon. Jack Robison
Presiding Judge
207th District Court
ii
Table of Contents
Page
List of Parties . . . . . . . . . . . . . . . . . . .ii
Table of Contents . . . . . . . . . . . . . . . . . iii
Index of Authorities ...................v
Statement of the Case ...................1
Issues Presented ..................2
Statement of Facts ...................3
Summary of the Argument ..................9
Point of Error One . . . . . . . . . . . . . . . . . . 12
The trial court abused its discretion by admitting Crayton’s recorded statement
which does not comply with TEX. CRIM. PROC. CODE art. 38.22 § 3(a)(2) (Supp.
CR 5, 4 RR 146).
Point of Error Two . . . . . . . . . . . . . . . . . . 13
The trial court abused its discretion by admitting Crayton’s recorded statement
which was obtained after an officer repeatedly ignored Crayton’s attempt to
terminate the interview and invoke his right to remain silent (Supp. CR 5, 4 RR
146).
Point of Error Three . . . . . . . . . . . . . . . . . 28
The evidence is insufficient to prove Crayton tampered with evidence with
knowledge an investigation was pending, in progress, or that an offense had been
committed.
Point of Error Four . . . . . . . . . . . . . . . . . . 32
The state failed to produce independent evidence to corroborate Crayton’s
extrajudicial statement that he tampered with physical evidence.
iii
Prayer . . . . . . . . . . . . . . . . . . 34
Certificate of Compliance . . . . . . . . . . . . . . . . . . 35
Certificate of Service . . . . . . . . . . . . . . . . . . 35
iv
Index of Authorities
First Page Cited
Cases
Almaguer v. State, ___ S.W.3d ___, 2014 WL 5088386
(Tex. App.—Corpus Christi 2014, pet. filed) . . . . . . . . . . . . . 18
Amador v. State, 221 S.W.3d 666
(Tex. Crim. App. 2007) . . . . . . . . . . . . . 18
Barshaw v. State, 342 S.W.3d 91
(Tex. Crim. App. 2011) . . . . . . . . . . . . . 24
Best v. State, 118 S.W.3d 857
(Tex. App.-Fort Worth 2003, no pet.) . . . . . . . . . . . . . 18
Bible v. State, 162 S.W.3d 234
(Tex. Crim. App. 2005) . . . . . . . . . . . . . 21
Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2010) . . . . . . . . . . . . . 29
Clayton v. State, 235 S.W.3d 772
(Tex.Crim.App.2007) . . . . . . . . . . . . . 29
Coble v. State, 330 S.W.3d 253
(Tex. Crim. App. 2010) . . . . . . . . . . . . . 24
Coggeshall v. State, 961 S.W.2d 639
(Tex. App.-Fort Worth 1998, pet. ref'd) . . . . . . . . . . . . . 23
Cooper v. State, 961 S.W.2d 222
(Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) . . . . . . . . . . . . . 25
Davidson v. State, 42 S.W.3d 165
(Tex. App.-Fort Worth 2001, pet. ref'd) . . . . . . . . . . . . . 23
Estrada v. State, 154 S.W.3d 604
(Tex. Crim. App. 2005) . . . . . . . . . . . . . 19
v
Fisher v. State, 851 S.W.2d 298
(Tex. Crim. App. 1993) . . . . . . . . . . . . . 33
Graves v. State, ___ S.W.3d ___, 2014 WL 6983635
(Tex. App.—Texarkana 2014, pet. filed) . . . . . . . . . . . . . 30
Gribble v. State, 808 S.W.2d 65
(Tex. Crim. App. 1990) . . . . . . . . . . . . . 33
Guzman v. State, 955 S.W.2d 85
(Tex. Crim. App. 1997) . . . . . . . . . . . . . 18
Hartsfield v. State, 305 S.W.3d 859
(Tex. App.–Texarkana 2010, pet. ref'd) . . . . . . . . . . . . . 29
Hernandez v. State, 114 S.W.3d 58
(Tex. App.—Fort Worth 2003, pet. ref'd) . . . . . . . . . . . . . 23
Herrera v. State, 241 S.W.3d 520
(Tex. Crim. App. 2007) . . . . . . . . . . . . . 20
Hooper v. State, 214 S.W.3d 9
(Tex. Crim. App. 2007) . . . . . . . . . . . . . 29
Jackson v. Virginia, 443 U.S. 307
(1979) . . . . . . . . . . . . . 29
Johnson v. State, 68 S.W.3d 644
(Tex. Crim. App. 2002) . . . . . . . . . . . . . 19
King v. State, 953 S.W.2d 266
(Tex. Crim. App. 1997) . . . . . . . . . . . . . 23
Kotteakos v. United States, 328 U.S. 750
(1946) . . . . . . . . . . . . . 24
Long v. State, 203 S.W.3d 352
(Tex. Crim. App. 2006) . . . . . . . . . . . . . 27
vi
Lumpkin v. State, 129 S.W.3d 659
(Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) . . . . . . . . . . . . . 30
Miles v. State, 204 S.W.3d 822
(Tex. Crim. App. 2006) . . . . . . . . . . . . . 27
Miranda v. Arizona, 384 U.S. 436
(1966) . . . . . . . . . . . . . 25
Montanez v. State, 195 S.W.3d 101
(Tex. Crim. App. 2006) . . . . . . . . . . . . . 19
Mosley v. State, 983 S.W.2d 249
(Tex. Crim. App. 1998) . . . . . . . . . . . . . 23
Pannell v. State, 7 S.W.3d 222
(Tex. App.—Dallas 1999, pet. ref'd) . . . . . . . . . . . . . 29
Romero v. State, 800 S.W.2d 539
(Tex. Crim. App. 1990) . . . . . . . . . . . . . 18
Simpson v. State, 227 S.W.3d 855
(Tex. App.—Houston [14th Dist.] 2007, no pet.) . . . . . . . . . . . . . 27
State v. Cullen, 195 S.W.3d 696
(Tex. Crim. App. 2006) . . . . . . . . . . . . . 18
State v. Kelly, 204 S.W.3d 808
(Tex. Crim. App. 2006) . . . . . . . . . . . . . 19
State v. Ross, 32 S.W.3d 853
(Tex. Crim. App. 2000) . . . . . . . . . . . . . 18
Thomas v. State, 408 S.W.3d 877
(Tex. Crim. App. 2013) . . . . . . . . . . . . . 18
Watson v. State, 762 S.W.2d 591
(Tex. Crim. App. 1988) . . . . . . . . . . . . . 25
vii
Wiede v. State, 214 S.W.3d 17
(Tex. Crim. App. 2007) . . . . . . . . . . . . . 18
Wilson v. State, 442 S.W.3d 779
(Tex. App.—Fort Worth 2014, pet. filed) . . . . . . . . . . . . . 19
Statutes
TEX. CRIM. PROC. CODE art. 38.22 § 3(a)(2) . . . . . . . . . . . . . .9
TEX. CRIM. PROC. CODE art. 38.22 § 3(e) . . . . . . . . . . . . . 23
TEX. PEN. CODE § 1.07(a)(22)(A) . . . . . . . . . . . . . 31
TEX. PEN. CODE § 6.03(b) . . . . . . . . . . . . . 31
TEX. PEN. CODE § 9.02 . . . . . . . . . . . . . 11
TEX. PEN. CODE § 9.31 . . . . . . . . . . . . . 11
TEX. PEN. CODE § 9.32 . . . . . . . . . . . . . 11
TEX. PEN. CODE § 37.09(a)(1) . . . . . . . . . . . . . 28
TEX. PEN. CODE § 37.09(d)(1) . . . . . . . . . . . . . 28
Rules
TEX. R. APP. P. 9.4 . . . . . . . . . . . . . 35
TEX. R. APP. P. 44.2(a) . . . . . . . . . . . . . 10
TEX. R. APP. P. 44.2(b) ..............9
viii
Statement of the Case
This is an appeal from a criminal proceeding. Eric Byron Crayton was
indicted by a Comal County grand jury for the offenses of murder and tampering
with physical evidence (CR 8). The indictment additionally alleged two prior
convictions for purposes of enhancement of punishment (CR 8). A jury was
selected and sworn (2 RR 326, 328). Crayton entered pleas of not guilty to the
indicted offenses (3 RR 12). The jury found him not guilty of murder and guilty of
tampering with physical evidence (CR 117, 118, 6 RR 75).
Crayton elected for the jury to assess punishment (CR 96). He entered pleas
of true to the enhancement paragraphs (7 RR 13). The jury found the prior
convictions true and assessed punishment at 35 years (CR 144, 7 RR 7 RR 61).
Crayton was sentenced in open court (7 RR 62).
The trial court certified Crayton’s right to appeal (CR 147). Notice of
appeal was timely filed (CR 301).
-1-
Issues Presented on Appeal
Point of Error One
The trial court abused its discretion by admitting Crayton’s recorded statement
which does not comply with TEX. CRIM. PROC. CODE art. 38.22 § 3(a)(2) (Supp.
CR 5, 4 RR 146).
Point of Error Two
The trial court abused its discretion by admitting Crayton’s recorded statement
which was obtained after an officer repeatedly ignored Crayton’s attempt to
terminate the interview and invoke his right to remain silent (Supp. CR 5, 4 RR
146).
Point of Error Three
The evidence is insufficient to prove Crayton tampered with evidence with
knowledge an investigation was pending, in progress, or that an offense had been
committed.
Point of Error Four
The state failed to produce independent evidence to corroborate Crayton’s
extrajudicial statement that he tampered with physical evidence.
-2-
Statement of Facts
The two paragraph murder count alleges Crayton stabbed Thomas Kitto to
death on January 19, 2012 (CR 8). The two paragraph tampering with evidence
count alleges Crayton tampered with a knife on January 19, 2012, while knowing
an investigation was pending, in progress, or an offense had been committed (CR
8).
In January of 2012, Andrea Young lived at the Canyon Falls RV Park in
Comal County (3 RR 24). She lived in a cabin with her friend (3 RR 37). Young
was in a romantic relationship with Kitto who lived in an adjacent cabin (3 RR 25).
Crayton and Young were close friends (3 RR 29). On the afternoon of
January 19, 2012, she received a text from Crayton indicating he wanted to speak
with her (3 RR 47). After speaking with Young at a convenience store, Crayton
followed her back to the RV park (3 RR 51, 54).
As Young and Crayton approached her cabin, Young saw Kitto sitting at an
outdoor table (3 RR 55). Kitto stood up, ran toward Crayton, grabbed him by the
shirt, and threw him to the ground (3 RR 59). While on the ground, Crayton told
Kitto that he was freaking him out (3 RR 60). While attempting to stop Kitto’s
attack of Crayton, Young saw Kitto hit Crayton again (3 RR 61). Kitto sat back
down at the table and was approached by Crayton (3 RR 63). Crayton displayed a
-3-
knife (3 RR 68). After securing her dog, Young approached Kitto and he showed
her a knife wound to his chest (3 RR 73). Young screamed at Crayton and he left
the scene in his vehicle (3 RR 74). Young conceded that Crayton had done
nothing to provoke Kitto’s attack (3 RR 108).
Young attempted to render aid to Kitto while waiting for assistance to arrive
(3 RR 78). She eventually spoke with several officers responding to the scene of
Kitto’s stabbing (3 RR 81).
Deputy Ben Haynes, with the Comal County Sheriff’s Office, responded to
the scene of Kitto’s stabbing (3 RR 165). He found Kitto on the ground while
others were attempting to administer aid to him (3 RR 169). EMS personnel at the
scene declared Kitto dead (3 RR 175).
Haynes took photographs of the scene (3 RR 180). He found a knife sheath
at the scene (3 RR 187). The only evidence recovered by law enforcement was
from the scene of the stabbing (3 RR 203). The following morning, a videotape of
the crime scene was made by another deputy (3 RR 208). The videotape was
displayed for the jury (3 RR 212, 8 RR SEX 60).
After speaking with witnesses at the scene, Haynes determined Crayton was
a suspect in the stabbing of Kitto (3 RR 175). Crayton was apprehended by law
-4-
enforcement on the same day as the stabbing (3 RR 216). Crayton was the only
suspect in the case (3 RR 217).
Haynes admitted that his investigation revealed that Kitto had been the
aggressor in attacking Crayton at the RV Park (3 RR 224, 4 RR 11, 45, 8 RR DEX
6). Crayton had done nothing to provoke Kitto before the stabbing (3 RR 225).
Deputy Chris Garza, of the Comal County Sheriff’s Office, assisted in the
investigation (4 RR 54). He spoke with witnesses at the scene of the stabbing and
they indicated Kitto had started the confrontation with Crayton (4 RR 58 – 66).
Recordings of those interviews were played for the jury (4 RR 58, 63, 8 RR SEX
61 and 62).
Deputy Chris Koepp, of the Comal County Sheriff’s Office, stopped Crayton
in a truck near his home on January 19, 2012 (4 RR 88). Crayton yelled “Fuck
that. I’m not going back” as the officer attempted to handcuff him (4 RR 89).
Crayton fled on foot and Koepp tackled him on the pavement (4 RR 90). The dash
camera recording of the incident was played for the jury (4 RR 93, 8 RR SEX 63).
Deputy Rex Campbell, of the Comal County Sheriff’s Office, went to the
scene of Kitto’s stabbing and was unable to locate the knife used to stab him (4 RR
115). Campbell later took Crayton to the Sheriff’s Office and interviewed him (4
RR 123). An audio recording of the interview was played for the jury (4 RR 125, 8
-5-
RR SEX 72). Crayton made no mention of the stabbing incident during his
conversation with Campbell as recorded on State’s Exhibit 72 (8 RR SEX 72). In
a subsequent interview with another officer, Crayton stated he threw the knife he
used to defend himself out the window (4 RR 133-134).
Deputy Tommy Ward, of the Comal County Sheriff’s Office, assisted in the
investigation (4 RR 139). On January 19, 2012, he interviewed Crayton at the
Sheriff’s Office after Campbell had spoken with Crayton (4 RR 143). His
interview of Crayton was recorded and played for the jury (4 RR 146, 8 RR SEX
73). The recording published to the jury, SEX 73, is a redacted version of PT SEX
6 (4 RR 145-146).
As played for the jury, the interview contains the following statements by
Crayton to Ward at the designated times: 1:34 just take me to my cell now; 1:36
no, I ain’t telling you nothing; 2:53 I’m done man, I’m done; 2:54 I don’t want to
talk; 3:01 no I don’t want to talk , I’m done; 3:24 – I threw the knife at Sorrell
Creek; 3:41 I’m done; 5:08 don’t talk to me, just take me to my cell now.
Ward executed a search warrant at Crayton’s home and was unable to find
the knife used to kill Kitto (4 RR 148). He did find some bloody clothing at
Crayton’s home (4 RR 150). Ward additionally executed a search warrant for the
truck Crayton drove at the time of the stabbing and his apprehension (4 RR 150).
-6-
After speaking with Crayton, Ward searched Sorrell Creek on two occasions, but
was unable to locate the knife used in the incident involving Kitto (4 RR 148-149).
Ward attended Kitto’s autopsy (4 RR 150). Those in attendance were
surprised to find Kitto’s left hand clutching a bullet which had not been present at
the scene of the stabbing (4 RR 154). With the aid of the Texas Rangers, Ward
later determined the bullet had been placed in Kitto’s hand by someone at the
funeral home which picked up his body from the scene of the stabbing (5 RR 47).
Dr. Kendall Crowns, of the Travis County Medical Examiner’s Office,
performed an autopsy on Kitto (5 RR 115). He observed six knife wounds of
varying depths (5 RR 125). One wound penetrated the heart and another
penetrated a lung (5 RR 126, 130). He opined that Kitto died from sharp force
injuries (5 RR 142). Kitto’s blood alcohol content was .13 at the time of his death
(5 RR 138). The State rested (5 RR 155).
Deputy Brian Morgan, of the Comal County Sheriff’s Office, assisted in the
investigation (5 RR 156). He examined Kitto’s cellphone (5 RR 160). Shortly
before his death, Kitto sent Young a series of text messages complaining about her
relationship with Crayton (5 RR 161).
-7-
James Ortiz, of the Comal County Sheriff’s Office, collected Crayton’s
property at the time he was booked into the jail (5 RR 170). Among the items
collected was a tooth (5 RR 171).
Charles Black is a former law enforcement officer and current private
investigator (5 RR 192). He examined the evidence in this case and did not believe
that any of Kitto’s injuries were defensive wounds (5 RR 198). Based on the
evidence he reviewed, he believed Crayton acted in self-defense when he stabbed
Kitto (5 RR 218). The defense rested and both sides closed (5 RR 235).
No objection was voiced to the charge which included the justifications of
self-defense and deadly force in defense of a person (CR 108, 5 RR 245). The
charge was read to the jury (6 RR 7). Argument was presented (6 RR 18, 26, and
51). The jury found Crayton not guilty of murder and guilty of tampering with
physical evidence (6 RR 75).
Crayton elected for the jury to assess punishment (CR 96). He entered pleas
of true to the enhancement paragraphs (7 RR 13). The State offered records from
his prior criminal convictions (7 RR 16, 8 RR SEX 98-116). The State rested (7
RR 22).
Darrell Banks employed Crayton in his trash collection business (7 RR 24).
He stated Crayton is a good employee and good person (7 RR 25).
-8-
Stacey Page has known Crayton for 30 years (7 RR 30). She testified to his
character and family background (7 RR 32). The defense rested and both sides
closed (7 RR 35, 38).
No objection was voiced to the charge and it was read to the jury (7 RR 39,
40). Argument was presented (7 RR 47, 49, and 53). The jury found both of the
prior convictions alleged for enhancement true and assessed punishment at 35
years (7 RR 61). Crayton was sentenced in open court (7 RR 62).
Summary of the Argument
Four points of error are presented on appeal. Two challenge the
admissibility of a recorded statement taken from Crayton following his arrest.
Two challenge the sufficiency of the evidence to support the conviction. Crayton
seeks a new trial or a judgment of acquittal.
The first point of error argues a statutory violation in the admission of an
officer’s recording of Crayton’s interrogation. Under de novo review, this Court
should find the trial court abused its discretion by admitting the complained of
recording of Crayton’s interrogation by Deputy Ward because it does not contain
the warnings required under TEX. CRIM. PROC. CODE art. 38.22 § 3(a)(2) in the
recording. After considering the appropriate 44.2(b) factors, this Court should find
the erroneous admission of Ward’s recording had a substantial and injurious effect
-9-
or influence in determining the jury's verdict. Crayton should be awarded a new
trial in which the fact finder will receive only admissible evidence.
The second point of error argues the same recording was inadmissible for a
constitutional violation. The officer ignored Crayton’s repeated attempts to
terminate the interview and invoke his right to remain silent. Before the
incriminating statement concerning disposal of the knife, Crayton attempted to
terminate the interview on five occasions and invoke his right to remain silent.
Despite his assertions “just take me to my cell now,” “no, I ain’t telling you
nothing,” “I’m done man, I’m done,” “I don’t want to talk,” and “no I don’t want
to talk” the officer continued the interrogation. Crayton’s assertions seeking to
invoke his right to silence were unambiguous and the custodial interrogation
should have ceased immediately. Under de novo review, this Court should find the
trial court abused its discretion in admitting into evidence anything on the
videotape after the point Crayton invoked his right to terminate questioning. After
considering the appropriate 44.2(a) factors, this Court will be unable to find
beyond a reasonable doubt that the error made no contribution to the conviction or
to the punishment. Crayton should be awarded a new trial in which the fact finder
will receive only admissible evidence.
- 10 -
The third point of error urges the evidence is insufficient to prove Crayton
had knowledge an investigation was pending, in progress, or an offense had been
committed at the time of tampering with the knife. Crayton left the scene with the
knife before the authorities were notified of Kitto’s stabbing. He claimed to have
thrown the knife in a creek. There is no showing of when that act occurred in
relation to an investigation in progress or pending. The evidence does not support
the theory that Crayton knew an investigation was pending or in progress at the
time he tampered with the knife.
Crayton further argues the evidence is insufficient to prove he knew an
offense had been committed at the time he tampered with the knife. The
undisputed evidence at trial was that Kitto was the aggressor and Crayton had done
nothing to warrant Kitto’s attack. The defensive theory throughout was based on
the justifications of self-defense and deadly force in defense of a person. Those
justifications were included in the court’s charge and argued by counsel in seeking
an acquittal. The jury responded by finding Crayton not guilty of the offense of
murder as charged in the first count of the indictment.
It is not an offense to use self-defense or deadly force in defense of a person.
Those justifications are a defense to an offense. TEX. PEN. CODE §§ 9.02, 9.31,
and 9.32. Crayton maintains the facts presented at trial do not show he had
- 11 -
knowledge that an offense had been committed at the time he tampered with the
knife. The jury’s finding to the contrary is not a rational finding. A judgment of
acquittal is warranted due to the insufficiency of the evidence presented at trial.
The final point presents a different challenge to the sufficiency of the
evidence. In this case, there is no evidence independent of Crayton’s statement to
show he tampered with the knife or the offense of tampering with physical
evidence was committed by Crayton. The only thing shown by the independent
evidence is that the authorities were unable to locate the knife. An inability to
locate an item of evidence should not be sufficient to independently show
commission of the offense of tampering with physical evidence through
concealment, destruction, or alteration. After a careful consideration of the
evidence adduced at trial, this Court will be unable to find satisfaction of the
corpus delicti rule as to the offense of tampering with physical evidence. The
judgment should be reformed to an acquittal.
Point of Error One
The trial court abused its discretion by admitting Crayton’s recorded
statement which does not comply with TEX. CRIM. PROC. CODE art. 38.22 §
3(a)(2) (Supp. CR 5, 4 RR 146).
- 12 -
Point of Error Two
The trial court abused its discretion by admitting Crayton’s recorded
statement which was obtained after an officer repeatedly ignored Crayton’s
attempt to terminate the interview and invoke his right to remain silent (Supp.
CR 5, 4 RR 146).
The Motion to Suppress Hearing
Crayton filed a motion to suppress his January 19, 2012, recorded statement
given to Deputy Ward (CR 37). A hearing was held on the motion (2 Supp. RR).
Deputy Rex Campbell, of the Comal County Sheriff’s Office, spoke with
Crayton on the evening of January 19, 2012 (2 Supp. RR 13). His effort to make a
video recording of the interview was unsuccessful and he simply recorded the
interview on an audio digital recorder (2 Supp. RR 13, 3 Supp. RR PT SEX 1).
The audio recording is 40 minutes in length (2 Supp. RR 15). Campbell
read Crayton his Miranda warnings twice during the recording (2 Supp. RR 15).
Campbell did not question Crayton concerning the killing of Kitto (2 Supp. RR
16). Campbell’s roles were simply to Mirandize Crayton and then babysit him
until an officer with knowledge of the killing arrived for interrogation (2 Supp. RR
18). The audio of Campbell’s conversation with Crayton was played for the court
- 13 -
(2 RR Supp. 20). During the recording, Crayton acknowledged receiving his
warnings from Campbell (2 Supp. RR 22, 3 Supp. RR PT SEX 3).
45 minutes elapsed from the end of Campbell’s interrogation until Deputy
Ward arrived and started his interrogation (2 Supp. RR 27). Once Ward arrived,
Campbell told him that Crayton had received his warnings and Ward commenced
his interrogation of Crayton (2 Supp. RR 24). Before questioning, Ward did not
give Crayton his warnings, ask Crayton whether he had previously received his
warnings, ask Crayton whether he remembered the warnings, or ask Crayton
whether he wished to waive his rights (2 Supp. RR 27). Campbell believed there
were two separate recordings, his and Ward’s (2 Supp. RR 25).
Campbell conceded Crayton was intoxicated during the interrogation (2
Supp. RR 28). Campbell related that he has known Crayton several years and he is
always drunk (2 Supp. RR 28). During the interrogation, Crayton told Campbell
that he was drunk (2 Supp. RR 30). Campbell did not believe Crayton was so
intoxicated that he could not communicate or understand what was happening
during the interrogation sessions (2 Supp. RR 32).
Deputy Tommy Ward, of the Comal County Sheriff’s Office, interrogated
Crayton about Kitto’s death on January 19, 2012 (2 Supp. RR 37). He was the first
officer to question Crayton about Kitto’s death (2 Supp. RR 37). Before
- 14 -
questioning, Ward did not read Crayton his rights, ask him if he had previously
received his warnings from Deputy Campbell, or whether he remembered the
warnings (2 Supp. RR 43).
Ward identified two recordings of his interview with Crayton (2 Supp. RR
38). The first, PT SEX 6, was made 45 minutes after the conclusion of Campbell’s
interrogation (2 Supp. RR 38, 3 Supp. RR PT SEX 6). The second, PT SEX 7, was
a continuation of the interview depicted in PT SEX 6 (2 Supp. RR 42, 3 Supp. RR
PT SEX 7).
The first recording made between Ward and Crayton contains the following
statements by Crayton at the designated times: 15:47 I poked him with a knife;
16:57 I got rid of the knife, on the road, I threw it away; 17:08 I threw it on the
road on Sorrell Creek; 19:47 You are making this difficult, your right, I’m done
with this; 19:51 tell me the truth, no, I’m done; 20:07 go ahead and charge me with
aggravated assault; 22:28 just take me to my cell; 22:31 no, I’m not talking to you;
23:48 I’m done, I don’t want to talk; 23:55 I don’t want to talk about it; 24:19 I
threw the knife at Sorrell Creek; 24:29 Man, I’m done with this; 26:03 Don’t talk
to me, just take me to jail (3 Supp. RR SEX 6).
Ward related that despite Crayton’s repeated assertions of “I’m done, take
me to my cell, quit talking to me, and I’m not talking to you,” he continued the
- 15 -
interrogation because that is what he had been taught in training (2 Supp. RR 46).
He did not believe Crayton’s reluctance to participate in the interrogation had any
significance because Crayton continued to answer questions put to him even after
saying he was done, quit talking to me, take me to my cell, and I’m not talking to
you (2 Supp. RR 49-50).
At the conclusion of the hearing, Crayton argued the recorded statement was
inadmissible under Art. 38.22 because the recording did not contain the required
warnings and Ward ignored Crayton’s repeated request to terminate the interview
and remain silent (2 Supp. RR 54, 56). The trial court delayed a ruling and invited
the parties to file briefs on the issues presented (2 Supp. RR 57). Crayton filed his
brief and among other things, argued PT SEX 6 was inadmissible because it did
not contain recorded warnings as required TEX. CRIM. PROC. CODE art. 38.22 §
3(a)(2) and Ward failed to honor Crayton’s repeated attempts to terminate the
interview and invoke his right to remain silent (CR 47, 52).
The trial court entered findings of fact and conclusions of law relative to the
admissibility of PT SEX 6 (Supp. CR 5). The court concluded there was but a
single interview of Crayton by both Campbell and Ward and the 38.22 warnings
were properly recorded on Campbell’s portion of the interview as recorded in PT
SEX 1 (Supp. CR 8). The court further concluded that Crayton clearly indicated
his desire to terminate the interview and invoke his right to remain silent at the
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26:03 mark of PT SEX 6 and nothing recorded after that point would be admissible
at trial (Supp. CR 8).
The Trial Evidence
During trial, Deputy Tommy Ward, of the Comal County Sheriff’s Office,
testified he assisted in the investigation (4 RR 139). On January 19, 2012, he
interviewed Crayton at the Sheriff’s Office after Campbell had spoken with him (4
RR 143). His interview of Crayton was recorded and played for the jury (4 RR
146, 8 RR SEX 73). The recording published to the jury, SEX 73, is a redacted
version of PT SEX 6 (4 RR 145-146).
As played for the jury, the interview contains the following statements by
Crayton to Ward at the designated times: 1:34 just take me to my cell now; 1:36
no, I ain’t telling you nothing; 2:53 I’m done man, I’m done; 2:54 I don’t want to
talk; 3:01 no I don’t want to talk , I’m done; 3:24 I threw the knife at Sorrell Creek;
3:41 I’m done; 5:08 don’t talk to me, just take me to my cell now (8 RR SEX 73).
Crayton concedes counsel stated “no objection” when the complained of
evidence was introduced at trial. Viewed in context, the statement of “no
objection” did not waive the claims now presented. During the suppression
hearing, Crayton made clear he sought to preserve the confession question at trial
before the jury (2 Supp. RR 39). Crayton engaged in vigorous cross-examination
- 17 -
of Deputy Ward in relation to his deficiencies in the investigation process (4 RR
157-180, 5 RR 8-51 and 71-97). In argument to the jury, counsel noted the
deficiencies in the investigation conducted by Ward (6 RR 31-34, 41, and 44).
This Court should address the merits of the points presented because the record as
a whole plainly demonstrates that Crayton did not intend, nor did the trial court
construe, his “no objection” statement to constitute an abandonment of a claim of
error that he had earlier preserved for appeal relative to the denial of his motion to
suppress the recording. See Thomas v. State, 408 S.W.3d 877, 885 (Tex. Crim.
App. 2013); Almaguer v. State, ___ S.W.3d ___, 2014 WL 5088386, at *8 (Tex.
App.—Corpus Christi 2014, pet. filed).
Standard of Review
A trial court's ruling on a motion to suppress evidence is reviewed on appeal
under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673
(Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997). In reviewing the trial court's decision, an appellate court does not engage in
its own factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.
1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.-Fort Worth 2003, no pet.).
The trial judge is the sole trier of fact and judge of the credibility of the witnesses
and the weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25
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(Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App.
2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim.
App. 2006).
Almost total deference to the trial court's rulings is given on (1) questions of
historical fact, even if the trial court's determination of those facts was not based on
an evaluation of credibility and demeanor, and (2) application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor. Amador, 221
S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.
2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But
when application-of-law-to-fact questions do not turn on the credibility and
demeanor of the witnesses, the trial court's rulings on those questions is reviewed
de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court's ruling on a motion to
suppress, an appellate court must view the evidence in the light most favorable to
the trial court's ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808,
818 (Tex. Crim. App. 2006). When the trial court makes explicit fact findings, an
appellate court must determine whether the evidence, when viewed in the light
most favorable to the trial court's ruling, supports those fact findings. Kelly, 204
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S.W.3d at 818–19. The trial court's legal rulings are reviewed de novo unless its
explicit fact findings that are supported by the record are also dispositive of the
legal ruling. Id. at 818; Wilson v. State, 442 S.W.3d 779, 783-84 (Tex. App.—Fort
Worth 2014, pet. filed).
Here, Crayton’s challenges to the propriety of the interrogation are legal in
nature and do not turn on credibility or demeanor choices made by the trial court
upon denying the motion to suppress. Accordingly, de novo review is appropriate
standard of review for this Court upon reviewing the trial court’s conclusions of
law.
The TEX. CRIM. PROC. CODE art. 38.22 § 3(a)(2) violation.
Article 38.22 of the Texas Code of Criminal Procedure governs the
admissibility of statements made by a defendant during custodial interrogation in a
criminal proceeding. Section 3 provides that an oral statement is admissible
against a defendant in a criminal proceeding if, among other things: (1) the
statement was electronically recorded; (2) the defendant was given the warnings
set out in Section 2(a) before the statement was made and it is included on the
recording; and (3) the defendant “knowingly, intelligently, and voluntarily” waived
the rights set out in the warnings. Herrera v. State, 241 S.W.3d 520, 525-26 (Tex.
Crim. App. 2007).
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Here, Crayton argues Ward’s entire interrogation Crayton should have been
suppressed because the warnings required under 38.22 are not contained within PT
SEX 6 (3 Supp. RR PT SEX 6). Although the required warnings are included in
Campbell’s interrogation, PT SEX 1, that will not suffice to satisfy 38.22 (3 Supp.
RR PT SEX 1).
When there are two distinct recordings, and the later does not include 38.22
warnings, courts apply the following analysis to determine whether the interview
constitutes separate interviews or but the continuation of a single interview: (1) the
passage of time; (2) whether the interrogation was conducted by a different person:
(3) whether the interrogation related to a different offense; and (4) whether the
officer asked the defendant if he had received any earlier warnings, whether he
remembered those warnings, and whether he wished to waive or invoke his rights.
Bible v. State, 162 S.W.3d 234, 242 (Tex. Crim. App. 2005).
In the case at bar, while the passage of time between the end of the first
audiotape interview and the beginning of the videotaped interview in question, PT
SEX 6, is approximately 45 minutes, this must be coupled with Crayton’s state of
intoxication at the time that the 38.22 warnings were given to him. Campbell
testified that he believed Crayton was intoxicated when he read him his 38.22
warnings, and that he was concerned that Crayton was intoxicated. Crayton told
- 21 -
Campbell that he was intoxicated. Campbell asked Crayton if he was on drugs.
The record shows Campbell was concerned about Crayton’s state of intoxication
during the interview. Crayton’s eyes were red and bloodshot. He had difficulty
filling out the waiver of rights for provided to him by Campbell (3 Supp. RR PT
SEX 3).
Ward also testified that Crayton was intoxicated during the interview
process. Crayton had fallen asleep following the Campbell interview and Ward
had to wake him up to start his interrogation of Crayton.
Crayton maintains the Court should consider his level of intoxication when
considering the first Bible factor. Crayton was intoxicated when he initially
received his warnings from Campbell and then fell asleep before Ward commenced
to interrogate him 45 minutes later without the benefit of receiving his required
warnings. The first Bible factor weighs in support of suppression.
The second Bible factor, whether the interrogation was conducted by a
different person, also weighs in favor of suppression. Campbell conducted the first
interview and Ward conducted the challenged second interview of Crayton.
The third Bible factor, whether the interrogation related to a different
offense, also weighs in favor of suppression. Campbell merely babysat Crayton
and questioned him regarding his evading arrest charge stemming from his conduct
- 22 -
at the time he was apprehended. Ward, on the other hand, focused exclusively on
the charges of murder and tampering with physical evidence.
The final Bible factor also weighs in favor of suppression. Ward never
asked Crayton if he had received any warnings earlier, whether he remembered
those warnings, and whether he wished to waive or invoke his rights. Rather than
complying with the law, Ward woke up the intoxicated Crayton and commenced to
interrogate him without the required warnings being recorded on the videotape of
SEX 6.
Under de novo review, this Court should find the trial court abused its
discretion by admitting the complained of recording of Crayton’s interrogation by
Ward because it does not contain the warnings required under TEX. CRIM. PROC.
CODE art. 38.22 § 3(a)(2). Both this Court and the trial court are under a duty to
strictly construe the statutory requirements for admission of an oral recorded
statement. See TEX. CRIM. PROC. CODE art. 38.22 § 3(e).
A harm analysis is appropriate. Article 38.22's recording requirement for an
oral statement is a procedural evidentiary rule rather than a substantive
exclusionary rule. Hernandez v. State, 114 S.W.3d 58, 65 (Tex. App.—Fort Worth
2003, pet. ref'd); Davidson v. State, 42 S.W.3d 165, 167 (Tex. App.-Fort Worth
2001, pet. ref'd). Thus, it is appropriate to apply TEX. R. APP. P. 44.2(b) to
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determine whether the error affected Crayton’s substantial rights. Mosley v. State,
983 S.W.2d 249, 259 (Tex. Crim. App. 1998); Coggeshall v. State, 961 S.W.2d
639, 642–43 (Tex. App.-Fort Worth 1998, pet. ref'd).
A substantial right is affected when the error had a substantial and injurious
effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.
Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Accordingly, any error must be disregarded unless it affected Crayton’s substantial
rights. See Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011). A
substantial right is affected when the error had a substantial and injurious effect or
influence in determining the jury's verdict. Coble v. State, 330 S.W.3d 253, 280
(Tex. Crim. App. 2010). If the improperly admitted evidence did not influence the
jury or had but a slight effect on its deliberations, such error is harmless. Id. In
analyzing the erroneous admission of evidence, the appellate court should
consider, among other things: (1) the strength of the evidence of the defendant’s
guilt; (2) whether the jury heard the same or substantially similar admissible
evidence through another source; (3) the strength or weakness of the evidence,
including whether the evidence was effectively refuted; and (4) whether the State
directed the jury's attention to the inadmissible opinion testimony during
arguments. See id. at 286–88.
- 24 -
Here, the strength of the evidence of Crayton’s guilt is exceedingly weak as
supported only marginally by the erroneously admitted recording. The jury did not
hear other substantially similar evidence from sources other than Ward’s statutorily
flawed recording. The assertion of disposing of the knife was not effectively
refuted by other evidence. Finally, during closing argument, the prosecutors
referred to and relied on the recording by Ward of Crayton’s assertion he threw the
knife in a creek (6 RR 24, 62).
After considering the appropriate 44.2(b) factors, this Court should find the
erroneous admission of Ward’s recording had a substantial and injurious effect or
influence in determining the jury's verdict. Crayton should be awarded a new trial
in which the fact finder will receive only admissible evidence.
Ignoring Crayton’s attempt to terminate the interview
and invoke his right to remain silent.
The right to terminate questioning is among the procedural safeguards
established by Miranda v. Arizona, 384 U.S. 436, 474 (1966); Watson v. State, 762
S.W.2d 591, 596 (Tex. Crim. App. 1988). If an individual indicates in any manner
at any time before or during questioning that he wishes to remain silent, the
interrogation must cease. Miranda, 384 U.S. at 473–74; Watson, 762 S.W.2d at
596. There need not be a formal invocation of one's right to terminate an
- 25 -
interview. Watson, 762 S.W.2d at 598. Anything said or done by an individual
subject to custodial interrogation that could reasonably be interpreted as a desire to
invoke that right should be sufficient to halt questioning. Cooper v. State, 961
S.W.2d 222, 225 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd). Watson, 762
S.W.2d at 596. Police must cease interrogating a suspect once the suspect
indicates in any manner, at any time during questioning, that he wishes to remain
silent. Watson, 762 S.W.2d at 596 (citing Miranda, 384 U.S. at 444–45). Whether
a suspect has asserted his right to terminate questioning is also decided on the
totality of the circumstances in each particular case. Id. at 597.
As played for the jury, the interview contains the following statements by
Crayton to Ward at the designated times: 1:34 just take me to my cell now; 1:36
no, I ain’t telling you nothing; 2:53 I’m done man, I’m done; 2:54 I don’t want to
talk; 3:01 no I don’t want to talk , I’m done; 3:24 I threw the knife at Sorrell Creek;
3:41 I’m done; 5:08 don’t talk to me, just take me to my cell now (8 RR SEX 73).
Before the incriminating statement concerning disposal of the knife, Crayton
attempted to terminate the interview on five occasions and invoke his right to
remain silent. Despite his assertions “just take me to my cell now,” “no, I ain’t
telling you nothing,” “I’m done man, I’m done,” “I don’t want to talk,” and “no I
don’t want to talk” Ward continued the interrogation. Crayton’s assertions were
unambiguous and the custodial interrogation should have ceased immediately.
- 26 -
Under de novo review, this Court should find the trial court abused its discretion in
admitting into evidence anything on the videotape after the point Crayton invoked
his right to terminate questioning.
Because the trial court committed a constitutional error in admitting the
videotape, this Court is called on to determine whether such error was harmful to
Crayton. Long v. State, 203 S.W.3d 352, 353 (Tex. Crim. App. 2006). If the
appellate record in a criminal case reveals constitutional error in the proceedings
below, the appellate court must reverse the judgment under review unless the
appellate court determines beyond a reasonable doubt that the error made no
contribution to the conviction or to the punishment. Id. (citing TEX. R. APP. P.
44.2(a)). In calculating the probable impact of the error on the jury, the court is to
look at the totality of the circumstances and the record as a whole. Simpson v.
State, 227 S.W.3d 855, 858-59 (Tex. App.—Houston [14th Dist.] 2007, no pet.);
Miles v. State, 204 S.W.3d 822, 828 (Tex. Crim. App. 2006).
Here, the strength of the evidence of Crayton’s guilt is exceedingly weak as
supported only marginally by the erroneously admitted recording. The jury did not
hear other substantially similar evidence from sources other than Ward’s
constitutionally flawed recording. The assertion of disposing of the knife was not
effectively refuted by other evidence. Finally, during closing argument, the
- 27 -
prosecutors referred to and relied on the recording by Ward of Crayton’s assertion
he threw the knife in a creek (6 RR 24, 62).
After considering the appropriate 44.2(a) factors, this Court will be unable to
find beyond a reasonable doubt that the error made no contribution to the
conviction or to the punishment. Crayton should be awarded a new trial in which
the fact finder will receive only admissible evidence.
Point of Error Three
The evidence is insufficient to prove Crayton tampered with evidence with
knowledge an investigation was pending, in progress, or that an offense had
been committed.
The two paragraph tampering with evidence count alleges Crayton tampered
with a knife on January 19, 2012, while knowing an investigation was pending, in
progress, or an offense had been committed (CR 8). See TEX. PEN. CODE §§
37.09(a)(1) and 37.09(d)(1). Both statutory theories were submitted to the jury
(CR 108). In voir dire, the State mentioned the jury would not be required to
unanimously agree on a particular statutory theory in order to convict Crayton of
tampering with physical evidence (2 RR 146). By this point of error, Crayton
maintains the evidence presented at trial was insufficient to prove he had
- 28 -
knowledge an investigation was pending, in progress, or that an offense had been
committed at the time he tampered with the knife.
In evaluating legal sufficiency, all the evidence must be reviewed in the light
most favorable to the trial court's judgment to determine whether any rational jury
could have found the essential elements of the offense beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v.
Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863
(Tex. App.–Texarkana 2010, pet. ref'd). The court is called on to examine legal
sufficiency under the direction of the Brooks opinion, while giving deference to the
responsibility of the jury to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443
U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
The evidence at trial showed Young approached Kitto as he took his shirt off
and she saw he had a wound to his chest (3 RR 73). Young screamed at Crayton
and he left the scene in his vehicle (3 RR 74). The knife used to stab Kitto was not
recovered at the scene (4 RR 115).
The tampering with physical evidence statute requires the defendant be
aware that the thing he altered, destroyed, or concealed was evidence in the
- 29 -
investigation as it existed at the time of the alteration, destruction, or concealment.
Pannell v. State, 7 S.W.3d 222, 223 (Tex. App.—Dallas 1999, pet. ref'd). The
term pending in the tampering-with-evidence statute means impending, or about to
take place. Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—Houston [1st
Dist.] 2004, pet. ref'd).
Crayton relies on Graves v. State, ___ S.W.3d ___, 2014 WL 6983635,
(Tex. App.—Texarkana 2014, pet. filed). There, the evidence showed the
defendant took a pistol from the scene of a shooting before the police were notified
of the incident. Finding the evidence insufficient to prove tampering with
knowledge an investigation was pending or in progress, the Court concluded the
evidence did not support the claim that Graves removed the firearm from the scene
at a time when he knew an investigation was pending or in progress. Graves, 2014
WL 6983635, at *10.
As in Graves, Crayton left the scene with the knife before the authorities
were notified of Kitto’s stabbing. He claimed to have thrown the knife in a creek.
There is no showing of when that act occurred in relation to an investigation in
progress or pending. The evidence does not support the theory that Crayton knew
an investigation was pending or in progress at the time he tampered with the knife.
An acquittal is warranted due to insufficient evidence.
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Crayton further argues the evidence is insufficient to prove he knew an
offense had been committed at the time he tampered with the knife. The
undisputed evidence at trial was that Kitto had been the aggressor and Crayton had
done nothing to warrant Kitto’s attack. The defensive theory throughout was based
on the justifications of self-defense and deadly force in defense of a person. Those
justifications were included in the court’s charge and argued by counsel in seeking
an acquittal. The jury responded by finding Crayton not guilty of the offense of
murder as charged in the first count of the indictment.
It is not an offense to use self-defense or deadly force in defense of a person.
Those justifications are a defense to an offense. TEX. PEN. CODE §§ 9.02, 9.31,
and 9.32. The justifications undermine the forbidden conduct as an element of an
offense. See TEX. PEN. CODE § 1.07(a)(22)(A). In order to prove knowledge with
respect to the nature of his conduct, it was incumbent on the State to prove the
circumstances were such that Crayton was aware he had committed an offense.
See TEX. PEN. CODE § 6.03(b). The use of lawful force to defend himself from
Kitto’s unlawful attack did not constitute an offense of which Crayton should have
been aware. Crayton maintains the facts presented at trial do not show he had
knowledge that an offense had been committed at the time he tampered with the
knife. The jury’s finding to the contrary is not a rational finding. A judgment of
acquittal is warranted due to the insufficiency of the evidence presented at trial.
- 31 -
Point of Error Four
The state failed to produce independent evidence to corroborate Crayton’s
extrajudicial statement that he altered, concealed, or destroyed the knife.
The two paragraph tampering with evidence count alleges Crayton tampered
with a knife on January 19, 2012, while knowing an investigation was pending, in
progress, or offense had been committed (CR 8). Specifically, Crayton was
charged with tampering with the knife by acts which tended to destroy, alter, or
conceal it (CR 8). This point of error complains of the State’s failure to
corroborate Crayton’s statement that he tampered with the knife by throwing it in a
creek.
Deputy Rex Campbell, of the Comal County Sheriff’s Office, went to the
scene of Kitto’s stabbing and was unable to locate the knife used to stab him (4 RR
115). Deputy Tommy Ward, of the Comal County Sheriff’s Office, assisted in the
investigation (4 RR 139). On January 19, 2012, he interviewed Crayton at the
Sheriff’s Office after Campbell had spoken with him (4 RR 143). His interview of
Crayton was recorded and played for the jury (4 RR 146, 8 RR SEX 73). As
played for the jury, the interview contains the following statement by Crayton to
Ward at the designated time: 3:24 I threw the knife at Sorrell Creek.
- 32 -
Ward executed a search warrant at Crayton’s home and was unable to find
the knife used to kill Kitto (4 RR 148). He did find some bloody clothing at
Crayton’s home (4 RR 150). Ward additionally executed a search warrant on the
truck Crayton drove at the time of the stabbing and his apprehension (4 RR 150).
After speaking with Crayton, Ward searched Sorrell Creek on two occasions, but
was unable to locate the knife used in the incident involving Kitto (4 RR 148-149).
The common law corpus delicti rule is that no criminal conviction can be
based on a defendant's extrajudicial confession unless the confession is
corroborated by independent evidence tending to establish the corpus delicti.
Fisher v. State, 851 S.W.2d 298, 302 (Tex. Crim. App. 1993). The corpus delicti
of any crime simply consists of the fact that the crime in question has been
committed by someone. Id. at 303. The rule does not require that the independent
evidence fully prove the corpus delicti, only that it tend to prove the corpus delicti
or render the corpus delicti more probable than it would be without the evidence.
Fisher, 851 S.W.2d at 302–03; Gribble v. State, 808 S.W.2d 65, 72 (Tex. Crim.
App. 1990). The essential purpose of the corroboration requirement is to assure
that no person be convicted without some independent evidence showing that the
very crime to which he confessed was actually committed. Id. at 71.
- 33 -
In this case, there is no evidence independent of Crayton’s statement to show
he tampered with the knife or the offense of tampering with physical evidence was
committed. The only thing shown by the independent evidence is that the
authorities were unable to locate the knife. An inability to locate the knife should
not be sufficient to independently show commission of the offense of tampering
with physical evidence through concealment, destruction, or alteration.
After a careful consideration of the evidence adduced at trial, this Court will
be unable to find satisfaction of the corpus delicti rule as to the offense of
tampering with physical evidence. The judgment should be reformed to an
acquittal.
Prayer
Crayton prays this Court will reverse the judgment of conviction and enter a
judgment of acquittal, reverse the judgment and remand for a new trial, or enter
any other relief appropriate under the facts and the law.
Respectfully submitted,
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
1411 West Avenue
Suite 100
Austin, TX 78701
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(512) 469-7943
(512) 474-5594 – facsimile
wetzel_law@1411west.com
Attorney for Appellant
Eric Byron Crayton
Certificate of Compliance
This pleading complies with TEX. R. APP. P. 9.4. According to the word
count function of the computer program used to prepare the document, the brief
contains 7,412 words excluding the items not to be included within the word count
limit.
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
Certificate of Service
I, Richard E. Wetzel, counsel for appellant, do hereby certify that a true and
correct copy of the foregoing document was emailed to counsel for the State, Josh
Presley, Assistant Criminal District Attorney, at his email address,
preslj@co.comal.tx.us on this the 2nd day of February, 2015.
/s/ Richard E. Wetzel
Richard E. Wetzel
State Bar No. 21236300
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