Quincy Paul Jones v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-258-CR
QUINCY PAUL JONES APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1 ON APPELLANT’S PETITION FOR
DISCRETIONARY REVIEW
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Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our
November 12, 2009 opinion and judgment and substitute the following. See
Tex. R. App. P. 50. We write to address appellant Quincy Paul Jones’s claim
on petition for discretionary review that, in our prejudice analysis of Jones’s
1
… See Tex. R. App. P. 47.4.
speedy trial claim, we erroneously refused to consider his argument that the
delay in his trial resulted in an increased punishment range.
I. INTRODUCTION
Appellant Quincy Paul Jones appeals his conviction for two counts of
sexual assault of a child. In two points, Jones argues that the trial court erred
by denying his motion to dismiss for violation of his right to a speedy trial and
by overruling his objection to the voluntariness of his confession. We will
affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In 2004, Jones lived with his then-girlfriend M.B., their daughter, and
M.B.’s two other children in Tarrant County. Jones later moved to Muncie,
Indiana. In December 2005, over a year after Jones moved out, M.B.’s fifteen-
year-old daughter K.L. told M.B. that Jones had sexually assaulted her on
multiple occasions when he lived with them. M.B. called the Mansfield police
department. Mansfield police obtained a warrant for Jones’s arrest and
contacted the police department in Muncie, Indiana. Muncie child abuse
investigator Sergeant Darrin Clark went to Jones’s last known address, and
when no one answered, he left his business card. He also contacted Jones’s
probation officer Heather Pierce and explained that he needed to speak with
Jones regarding some allegations against him in Texas. Pierce told Jones that
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he “needed to cooperate with the Muncie Police Department.” Jones complied,
and during an interview at the Muncie police station on February 14, 2006, he
admitted to the sexual assault and was arrested.
Jones remained in jail from the time of his arrest on February 14, 2006,
until his jury trial on July 15, 2008. Seven months after his arrest, and
although represented by court-appointed counsel, Jones filed a pro se
application for writ of habeas corpus, claiming that his constitutional right to a
speedy trial had been violated.
Trial was then set for October 24, 2006, November 6, 2006, March 5,
2007, and June 4, 2007. Although neither the State nor Jones filed motions
for continuances or announced not ready for trial, trial was not held on any of
those dates.
On June 4, 2007, the trial court allowed Jones’s appointed attorney to
withdraw due to a conflict with Jones, and four days later, the court appointed
new counsel for Jones. Trial was then set for August 20, 2007, November 5,
2007, and February 4, 2008, but trial was not held on those dates. Again,
neither the State nor Jones filed motions for continuances or announced not
ready for trial.
On June 5, 2008, Jones filed a pro se “Plea of M[ercy],” in which he
asked the court for “help in speedy completion” of his trial. Approximately one
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month later, and twenty-nine months after Jones’s arrest, his attorney filed a
motion to dismiss for failure to grant a speedy trial.
Jury selection began four days later on July 15, 2008. The following
day, the trial court conducted a pre-trial hearing on Jones’s motion to dismiss
and denied the motion. The jury ultimately found Jones guilty of both counts
and assessed Jones’s punishment for each count at thirty-five years’
imprisonment and a $6,000.00 fine. The trial court ordered the sentences to
run concurrently.
III. S PEEDY T RIAL
In his first point, Jones argues that the trial court’s denial of his motion
to dismiss violated his right to a speedy trial under the United States and Texas
Constitutions.
A. The Right to a Speedy Trial
The Sixth Amendment to the United States Constitution and article 1,
section 10 of the Texas Constitution guarantee an accused the right to a
speedy trial. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also
Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v.
State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d). Texas
courts analyze claims of a denial of this right, both under the federal and state
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constitutions, the same. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim.
App.), cert. denied, 506 U.S. 942 (1992). In Barker v. Wingo, the United
States Supreme Court qualified the literal sweep of the right to a speedy trial
by analyzing the constitutional question in terms of four specific factors:
(1) whether the delay before trial was uncommonly long;
(2) whether the government or the criminal defendant is more to
blame for the delay;
(3) whether in due course, the defendant asserted his right to a
speedy trial; and
(4) whether the defendant suffered prejudice as a result of the
delay.
407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). Under Barker, courts must
analyze federal constitutional speedy trial claims by first weighing the strength
of each of the above factors and then balancing their relative weights in light
of the conduct of both the prosecution and the defendant. Zamorano, 84
S.W.3d at 648. None of the four factors is either a necessary or sufficient
condition to the finding of a deprivation of the right to a speedy trial; instead,
all must be considered together along with any other relevant circumstances.
Id. No one factor possesses “talismanic qualities”; thus, courts must “engage
in a difficult and sensitive balancing process” in each individual case. Id.
(quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193).
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B. Standard of Review
In reviewing the trial court’s ruling on a speedy trial claim, we apply a
bifurcated standard of review: an abuse of discretion standard for the factual
components and a de novo standard for the legal components. Id. Review of
the individual Barker factors necessarily involves factual determinations and
legal conclusions, but the balancing test as a whole is a purely legal question.
Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008).
Under this standard, we defer not only to a trial judge’s resolution of
disputed facts, but also to the trial judge’s right to draw reasonable inferences
from those facts. Id. at 281. In assessing the evidence at a speedy trial
hearing, the trial judge may completely disregard a witness’s testimony, based
on credibility and demeanor evaluations, even if that testimony is
uncontroverted. Id. The trial judge may disbelieve any evidence so long as
there is a reasonable and articulable basis for doing so. Id. And all of the
evidence must be viewed in the light most favorable to the trial judge’s ultimate
ruling. Id.
C. Analysis of the Barker Factors
1. Length of Delay
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The length of delay is a “triggering mechanism” for analysis of the other
Barker factors. Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93; Zamorano,
84 S.W.3d at 648. Depending on the nature of the charges, a postaccusation
delay of about one year is “presumptively prejudicial” for purposes of the
length-of-delay factor. Doggett v. United States, 505 U.S. 647, 652 n.1, 112
S. Ct. 2686, 2691 n.1 (1992). If the accused shows that the interval between
accusation and trial has crossed the threshold dividing “ordinary” from
“presumptively prejudicial” delay, then the court must consider, as one factor
among several, the extent to which that delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim. Zamorano, 84
S.W.3d at 649 (quoting Doggett, 505 U.S. at 652, 112 S. Ct. at 2690–91).
This second inquiry is significant to the speedy trial analysis because the
“presumption that pretrial delay has prejudiced the accused intensifies over
time.” Id.
The State here concedes that the twenty-nine-month delay between
Jones’s arrest and trial weighs in Jones’s favor and triggers an analysis of the
remaining Barker factors. Furthermore, because the delay stretched well over
twice the length of time needed to trigger the inquiry, this factor weighs heavily
in favor of Jones. See, e.g., Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim.
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Ohio App. 2003) (holding delay of thirty-eight months weighed heavily in appellant’s
favor); Rodriquez v. State, 227 S.W.3d 842, 844 (Tex. App.—Amarillo 2007,
no pet.) (holding delay of thirty-two months between arrest and trial weighed
heavily against the State).
2. Reasons for the Delay
The second factor—reasons for the delay—seeks to ensure that courts do
not simply concentrate on the sheer passage of time without taking into
account the reasons underlying the delay. See Rashad v. Walsh, 300 F.3d 27,
34 (1st Cir. 2002), cert. denied, 537 U.S. 1236 (2003). Under Barker,
“different weights should be assigned to different reasons” for the delay. 407
U.S. at 531, 92 S. Ct. at 2192. The inquiry into causation involves a sliding
scale: deliberately dilatory tactics must be weighed more heavily against the
State than periods of delay resulting from negligence. Id. Furthermore, valid
reasons for delay should be weighed only slightly, if at all, against the State.
State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999).
Like the first factor, the State also concedes that this factor weighs in
Jones’s favor, although “only ‘slightly.’” At the hearing on Jones’s motion to
dismiss, the trial court’s court coordinator testified that the State had never
failed to announce ready for trial at any of the trial settings or moved for a
8
continuance. She explained that the trial court is a busy court and had
approximately 1,600 cases pending at that time. The court coordinator could
not testify as to why Jones’s trial had been reset so many times but said it was
conceivable that it was reset because other defendants could have been in
custody longer than Jones, thus giving their cases preference over his.
Although a neutral reason such as an overcrowded docket weighs less
heavily against the State, it should nevertheless be considered because the
ultimate responsibility for bringing cases to trial in a timely manner rests with
the government. Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Parkerson v.
State, 942 S.W.2d 789, 791 (Tex. App.—Fort Worth 1997, no writ).
However, because no evidence exists here that the State used deliberately
dilatory tactics, we agree with the State that this factor weighs only slightly
against the State. See, e.g., Murphy v. State, 280 S.W.3d 445, 453 (Tex.
App.—Fort Worth 2009, pet. ref’d) (holding second factor did not weigh heavily
against State when no evidence existed that State used purposeful dilatory
tactics).
3. Assertion of the Right
We next consider the extent to which Jones affirmatively sought a
speedy trial. Barker, 407 U.S. at 531–32, 92 S. Ct. at 2192. The nature of
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the speedy trial right makes it “impossible to pinpoint a precise time in the
process when the right must be asserted or waived, but that fact does not
argue for placing the burden of protecting the right solely on defendants.” Id.
at 527, 92 S. Ct. at 2190. The right to a speedy trial “is constitutionally
guaranteed and, as such, is not to be honored only for the vigilant and the
knowledgeable.” Id. at 527 n.27, 92 S. Ct. at 2190 n.27 (quoting Hodges v.
United States, 408 F.2d 543, 551 (8th Cir. 1969)).
Whether and how a defendant asserts this right is closely related to the
other three factors because the strength of the defendant’s efforts will be
shaped by them. Id. at 531, 92 S. Ct. at 2192. Filing for a dismissal instead
of a speedy trial generally weakens a speedy trial claim because it may show
a desire to have no trial instead of a speedy one. Cantu, 253 S.W.3d at 283.
In this case, Jones first asserted his right to a speedy trial approximately
six months after he was arrested by filing an application for writ of habeas
corpus. The State argues that the application for writ of habeas corpus is not
“the proper starting point from which to measure [Jones’s] assertion of his
speedy trial right” because Jones attached it to the end of a motion to reduce
bail and because he asserted the violation of his right to a speedy trial as his
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third and final ground for habeas relief—“buried in the last substantive
paragraph of this eleven-page bail reduction motion.” 2
Nevertheless, Jones specifically alleged in that application,
I have been incarcerated for over 200 days without a trial date or
trial being conducted and request a hearing to hear my right to be
released on bail . . . . My constitutional right to a speedy trial [has]
been violated.
Although he did not directly request a speedy trial, he asserted a violation of his
right to a speedy trial, and he did not request dismissal for failure to grant a
speedy trial. See Cantu, 253 S.W.3d at 283; Phillips v. State, 650 S.W.2d
396, 401 (Tex. Crim. App. 1983) (“[A] defendant’s motivation in asking for
dismissal rather than a prompt trial is clearly relevant, and may sometimes
attenuate the strength of his claim.”).
2
… Jones requested that his bail be reduced from $50,000 to $5,000,
and the trial court ultimately ruled on his motion by reducing his bail to
$35,000. Although Jones was not entitled to hybrid representation, we can
consider this pro se motion on appeal. See Robinson v. State, 240 S.W.3d
919, 923 (Tex. Crim. App. 2007) (holding that trial court is free to disregard
pro se motions of a defendant represented by counsel, but that once a court
chooses to rule on such motions, those decisions are reviewable); Webb v.
State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976) (holding that although a
criminal defendant does not have the right to hybrid representation, a patient
trial judge may permit it).
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Over twenty months later, Jones again asserted his right to a speedy trial
in his pro se “Plea of M[ercy],” in which he stated that he was “not sure” if his
right to a speedy trial had been waived by his appointed counsel or by himself
and that he would never waive that right and asked the court for “help in
speedy completion.” Trial was ultimately set for the following month, providing
some evidence that the trial court considered his pro se motion. See Robinson,
240 S.W.3d at 923. Assuming the trial court considered this motion, thus
making it subject to review, Jones did not request a hearing on his request for
a speedy trial. See Cook v. State, 741 S.W.2d 928, 940 (Tex. Crim. App.
1987) (weighing third Barker factor against appellant because no evidence other
than two motions for speedy trial filed with court showed that appellant
asserted his right to a speedy trial by requesting hearings to present evidence
on the matter), vacated and remanded on other grounds, 488 U.S. 807, 109
S. Ct. 39 (1988). Thus, although Jones’s second pro se motion shows that he
attempted to assert his right to a speedy trial, it tips the scales only slightly in
his favor. 3
3
… Jones filed a third pro se document, entitled “Statement of
Declarations,” one month later. Jones stated that he had a “right to be heard,”
but also appeared to request that trial be reset so that his family could have
more notice to travel from Indiana to Texas for his trial. However, we will not
consider this pro se filing because Jones had appointed counsel at that time and
because nothing suggests that the trial court considered this filing. See
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Finally, the motion to dismiss, filed by Jones’s attorney twenty-nine
months after Jones’s arrest, shows a desire to have no trial instead of a speedy
trial and weakens Jones’s case. See Cantu, 253 S.W.3d at 283.
Jones submits that the third Barker factor weighs in his favor but
concedes that it does not weigh “as heavily as it would had he repeatedly
asserted his right to speedy trial.” We agree. Considering the two pro se
filings, filed six months and twenty-seven months after Jones’s arrest, and the
motion to dismiss filed twenty-nine months after his arrest, we weigh this
factor at least slightly against the State and in favor of Jones.
4. Prejudice
The final factor of “prejudice” must be assessed in light of the interests
the speedy trial right was intended to protect. See Barker, 407 U.S. at 532,
92 S. Ct. at 2193. Those interests are (1) to prevent oppressive pretrial
incarceration, (2) to minimize the accused’s anxiety and concern, and (3) to
limit the possibility the defense will be impaired. Id. Of these interests, the
third is the most serious because the inability of a defendant to adequately
prepare his case skews the fairness of the entire system. Id.; Doggett, 505
Robinson, 240 S.W.3d at 923.
13
U.S. at 654, 112 S. Ct. at 2692; Dragoo v. State, 96 S.W.3d 308, 315 (Tex.
Crim. App. 2003).
In some cases, the delay may be so excessive as to be presumptively
prejudicial. Guajardo v. State, 999 S.W.2d 566, 570 (Tex. App.—Houston
[14th Dist.] 1999, pet. ref’d); see Doggett, 505 U.S. at 658, 112 S. Ct. at
2694. Courts have held that delays of five years and longer are presumptively
prejudicial under the fourth Barker factor. See Guajardo, 999 S.W.2d at 570
(five-year delay raises presumption of prejudice); see also Doggett, 505 U.S. at
658, 112 S. Ct. at 2694 (eight and one-half years was presumptively
prejudicial); Orand, 254 S.W.3d at 570 (fourteen-year delay was presumptively
prejudicial). Yet even when the delay is presumptively prejudicial, the
defendant must nevertheless show that he has, in fact, been prejudiced.
Guajardo, 999 S.W.2d at 570; see Doggett, 505 U.S. at 655–56, 112 S. Ct.
at 2693.
A showing of actual prejudice is not required; however, a defendant must
make a prima facie showing of prejudice caused by the delay of the trial.
Munoz, 991 S.W.2d at 826. Once the defendant has made such a showing,
the burden shifts to the State. Guajardo, 999 S.W.2d at 570–71.
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Although the delay in the present case triggers a speedy trial analysis, it
is not long enough for Jones to have suffered presumptive prejudice. See
Compass v. State, No. 02-06-00075-CR, 2007 WL 2067733, at *3 n.28 (Tex.
App.—Fort Worth July 19, 2007, no pet.) (mem. op., not designated for
publication) (“We decline to hold that a twenty-nine month delay is
presumptively prejudicial.”); see also Clarke v. State, 928 S.W.2d 709, 717
(Tex. App.—Fort Worth 1996, pet. ref’d) (finding no presumptive prejudice
where appellant retried on punishment two years and five months after
Supreme Court denied certiorari and five months after appellant filed motion for
speedy retrial); Sanders v. State, 978 S.W.2d 597, 605 (Tex. App.—Tyler
1997, pet. ref’d) (finding nineteen-month delay not presumptively prejudicial).
Jones argues that he was prejudiced for three reasons. 4 He first argues
that he suffered prejudice because the delay resulted in an increased
punishment range. Over two years after his arrest, the State filed its notice of
intent to seek an enhancement finding based on a prior felony conviction from
2001, which increased the punishment range from between two and twenty
4
… Jones does not argue that he suffered oppressive pretrial
incarceration, perhaps because it is self-evident that his twenty-nine-month
pretrial incarceration was oppressive. See, e.g., Munoz, 991 S.W.2d at 828
(holding that appellant’s incarceration during entire seventeen-month delay was
dispositive of the oppressive pre-trial incarceration interest). Nevertheless, this
is only one of the three interests we must consider in our prejudice analysis.
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years’ imprisonment to between five and ninety-nine years’ imprisonment. 5 But
the prior conviction used to enhance Jones’s punishment occurred years before
he was arrested for this offense. Thus, the delay did not create an opportunity
for an increased punishment range—the possibility that Jones could face
increased punishment existed regardless of any delay in his trial. See Tex.
Penal Code Ann. § 12.42(b). Cf. Clarke, 928 S.W.2d at 716 (finding some
prejudice when convictions for two extraneous offenses became final during
delay and thus became admissible at trial under prior version of code of criminal
procedure article 37.07).
Jones also argues that he was unable to locate and secure witnesses
“who possibly could have testified on [his] behalf” due to the delay. At the
motion to dismiss hearing, Jones’s court-appointed investigator testified that
in October 2007, Jones provided him with a list of four potential witnesses.
The investigator located only one of the individuals, and that person did not
want to participate in the trial. To claim prejudice because of a missing
witness, a defendant must show that (1) the witness was unavailable at the
time of trial, (2) the witness’s testimony would have been relevant and material,
5
… See Tex. Penal Code Ann. § 12.42(b) (Vernon Supp. 2009) (providing
for enhancement of second-degree felony to first-degree felony upon showing
that defendant has prior felony conviction).
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and (3) the defendant exercised due diligence in attempting to locate the
witness. Clarke, 928 S.W.2d at 716. Jones has failed to show what material
information these witnesses would have provided. See Palacios v. State, 225
S.W.3d 162, 169–70 (Tex. App.—El Paso 2005, pet. ref’d); Clarke, 928
S.W.2d at 716. Consequently, he has failed to make a prima facie showing
that his defense was impaired by the absence of these witnesses.
Finally, Jones argues that the delay in his case caused him significant
anxiety and distress. At the motion to dismiss hearing, Jones explained his
anxiety and concern regarding his pretrial incarceration: “Just anxious, nervous,
not being able to sleep, eat, just stressing off and on day to day. It’s been a
long road.” Jones has failed to show that the anxiety he suffered either was
abnormal or caused his case prejudice. See Shaw, 117 S.W.3d at 890
(“[A]ppellant offered no evidence to the trial court that the delay had caused
him any unusual anxiety or concern, i.e., any anxiety or concern beyond the
level normally associated with being charged with [the] crime.”).
Jones does not present this court, and did not present the trial court, with
any other argument regarding the prejudice-to-the-defense factor. Cf.
Zamorano, 84 S.W.3d at 654 (noting, in prejudice analysis, defendant’s
testimony about undue anxiety, lost income, and missed work as a result of the
17
delay); Puckett v. State, 279 S.W.3d 434, 441 (Tex. App.—Texarkana 2009,
no pet.) (finding prejudice where appellant showed witnesses with relevant
testimony were unavailable). Jones does not meet the presumptively prejudicial
standard, and even considering his oppressive pretrial incarceration, he has not
made a prima facie showing that he suffered anxiety or concern or that his
defense was impaired. See Munoz, 991 S.W.2d at 829 (holding prejudice was
“minimal” where defendant showed oppressive pretrial incarceration and
anxiety but failed to show defense was impaired by delay); Meyer v. State, 27
S.W.3d 644, 651 (Tex. App.—Waco 2000, pet. ref’d) (finding minimal
prejudice where appellant suffered “some oppressive pretrial incarceration and
undue anxiety” but did not “make even a prima facie showing that his defense
had been impaired”), abrogated on other grounds by Robinson v. State, 240
S.W.3d 919 (Tex. Crim. App. 2007).
In short, on this record, any prejudice to Jones was “minimal.” Munoz,
991 S.W.2d at 829; Meyer, 27 S.W.3d at 651. This factor weighs against
finding Jones’s speedy trial right was violated.
5. Balancing the Factors
Having addressed the Barker factors, we must now balance them. The
twenty-nine-month delay between Jones’s arrest and his trial weighs heavily
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against the State and in favor of Jones. The second factor—reasons for the
delay—also weighs against the State, but only slightly because no evidence
exists that the State used deliberately dilatory tactics. The third
factor–assertion of the right—weighs slightly against the State and in favor of
Jones. Finally, any prejudice suffered by Jones was minimal. We hold that the
weight of these factors, balanced together, supports the trial judge’s ruling to
deny Jones’s motion to dismiss and that there was no violation of his right to
a speedy trial. See Palacios, 225 S.W.3d at 170 (finding no speedy trial
violation when first three factors weighed against State and fourth factor
weighed heavily against appellant); see also Russell v. State, 90 S.W.3d 865,
874–75 (Tex. App.—San Antonio 2002, pet. denied) (finding no speedy trial
violation when first three factors weighed in appellant’s favor and presumptive
prejudice was rebutted by failure to demonstrate any prejudice); Guajardo, 999
S.W.2d at 571 (same). We overrule Jones’s first point.
IV. M OTION TO S UPPRESS
In his second point, Jones argues that the trial court erred by overruling
his motion to suppress his videotaped confession because his parole officer told
him he needed to cooperate with the police, rendering his confession
involuntarily given.
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A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence 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, we do not engage in our 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 (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). Therefore, we give almost total
deference to the trial court’s rulings 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
20
of the witnesses, we review the trial court’s rulings on those questions 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, we 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, we
determine whether the evidence, when viewed in the light most favorable to the
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings that are supported by the record are also dispositive of the legal ruling.
Id. at 819.
B. Law on Voluntariness
The statement of the accused may be used in evidence if it was freely
and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc.
Ann. art. 38.21 (Vernon 2005). In deciding whether a statement was
voluntary, we consider the totality of the circumstances in which the statement
was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App.
1997); Reed v. State, 59 S.W.3d 278, 281 (Tex. App.—Fort Worth 2001, pet.
21
ref’d). A confession is involuntary if circumstances show that the defendant’s
will was “overborne” by police coercion. Creager, 952 S.W.2d at 856. The
defendant’s will may be “overborne” if the record shows that there was
“official, coercive conduct of such a nature” that a statement from the
defendant was “unlikely to have been the product of an essentially free and
unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211
(Tex. Crim. App. 1995); Frank v. State, 183 S.W.3d 63, 75 (Tex. App.—Fort
Worth 2005, pet. ref’d).
C. The Voluntariness of Jones’s Confession
Jones is not complaining of the police officers’ actions prior to or during
his videotaped confession; he complains only that his parole officer’s instruction
to cooperate with the police investigation rendered his confession involuntary.
At the suppression hearing, Heather Pierce testified that she was Jones’s
parole officer in Muncie, Indiana and that Sergeant Clark had informed her that
he was conducting an investigation into certain allegations against Jones. She
testified that she had called Jones, had explained that she did not know a lot
about the allegation, and had told Jones that he “needed to cooperate with the
Muncie Police Department.” Pierce testified that Jones would not have violated
his parole if he had not cooperated, that she did not threaten him that he would
22
violate his parole if he did not cooperate, and that she did not promise him
anything in exchange for his cooperation. On cross-examination, Pierce agreed
that it is a “good thing” for a parolee to do what a parole officer tells him to do.
Jones testified at the suppression hearing that Pierce had told him that
he “needed to go down [to the police station] and cooperate with them.” He
said that Pierce had given him a “direct order” to talk to police and that he had
felt that if he did not cooperate with the police, he would violate his parole. He
explained, “I felt like I did not have a choice at the time because the way that
she called me, you know, she didn’t sound — she just sound[ed] like it was a
demand.” On cross-examination, Jones testified that Pierce did not tell him
that he would violate his parole if he did not cooperate with police and that she
did not promise him anything in exchange for his cooperation. Jones also
testified that both Pierce and Sergeant Clark had told him that he was not going
to be arrested and that he thought he would go to the police station, tell his
side of the story, and “be let go.” He also stated that he went to the police
station “voluntarily.”
After the hearing, the trial court entered oral and written findings of fact,
finding that Jones appeared voluntarily at the Muncie police department on
February 14, 2006; that he freely, intelligently, knowingly, and voluntarily
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waived his rights; and that he made his statement under voluntary conditions
after waiving his rights.
Based on the evidence provided at the suppression hearing, and giving
deference to the trial court’s evaluation of the facts, we hold that the record
supports the trial court’s ruling and that the totality of the circumstances show
that Jones’s confession was voluntary. See Tex. Code Crim. Proc. Ann. art.
38.21; Kelly, 204 S.W.3d at 818; Creager, 952 S.W.2d at 855.
Consequently, we overrule Jones’s second point.
V. C ONCLUSION
Having overruled Jones’s two points, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: January 28, 2010
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