Kellison v. State

Full title: CORY DONN KELLISON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 3, 2008

No. 05-06-01117-CR (Tex. App. Jan. 3, 2008)

Opinion

No. 05-06-01117-CR

Opinion Filed January 3, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the 59th District Court, Grayson County, Texas, Trial Court Cause No. 051882.

Before Justices, O'NEILL, RICHTER, and LANG.

OPINION

DOUGLAS S. LANG, Justice.

Cory Donn Kellison appeals his conviction by a jury for murder. Punishment was assessed by the trial court at forty years' confinement. Appellant raises four issues on appeal, asserting:

(1) the inability of the trial court to enter findings of fact and conclusions of law mandated by article 38.22, section 6, of the Texas Code of Criminal Procedure requires reversal and a new trial; (2) the failure of the trial court to afford appellant a hearing on his motion to suppress his statement violates his rights to due process of law guaranteed by the Fourteenth Amendment to the U.S. Constitution and concomitant provisions of the Texas Constitution; (3) a proper record of appellant's videotaped statement does not exist and cannot be obtained, thereby mandating reversal; and (4) the trial court erred in conducting a hearing without witnesses to determine admissibility and voluntariness of appellant's statement. We decide appellant's four issues against him. The judgment of the trial court is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Lenny Shelton testified at trial that during the early morning hours of June 6, 2004, he was drinking alcohol at Rosedale Park in Sherman, Texas, with appellant, Guadencio Diaz, Jr., and appellant's brother, Jimmy Kellison. At approximately 2 a.m., Lenny Shelton phoned Jenna Neff, who was dating his brother, Michael Shelton, and asked Neff and Michael Shelton to come pick them up. Neff testified she drove the group in her car to the home of appellant's mother, Donna Kellison. During the drive, appellant and Diaz, who were sitting in the back seat of Neff's car, began arguing. When the group reached Donna Kellison's home, Diaz and Michael Shelton remained in the car, talking, while the others, including appellant, exited the car. According to eyewitness testimony by Neff, Lenny Shelton, and Michael Shelton, appellant went into his mother's house and came back out with something in his hand. Appellant opened the back door of the car and fired five gunshots at Diaz. While Donna Kellison called 9-1-1, appellant argued with Jimmy Kellison, then left the scene before the police and ambulance arrived. June Stevenson, the custodian of records for Wilson N. Jones Hospital, testified hospital records showed Diaz was "dead on arrival" on June 6, 2004, with "[m]ultiple gunshot wounds to the face, neck, head, and extremity." Appellant was arrested on June 7, 2004, and taken to an interview room in the Grayson County Sheriff's Office. Dick Rogers, who was employed at that time as an investigator with the Grayson County Sheriff's Office, testified that at approximately 4:30 p.m. on June 7, 2004, he and Lieutenant Gary Robinson conducted a videotaped interview with appellant. According to Rogers, appellant was informed of his rights and waived them. Rogers testified appellant then gave an oral statement, recorded on videotape, in which he admitted to shooting and killing Diaz. On February 1, 2006, appellant filed a "Motion to Suppress Statements," in which he argued, in relevant part, that any statements made by him to law enforcement officers "were involuntary and were coerced and enticed." On February 13, 2006, appellant filed a "Motion to Suppress Recorded Statements," which, except for the title, was identical to his February 1, 2006 motion. A hearing on appellant's motions was set for March 23, 2006.¹ On March 27, 2006, Judge Rayburn Nall, Jr., the trial judge in this case, issued a letter to the parties stating, "After reviewing the videotape of defendant's interrogation, the Court is of the opinion that defendant's motion to suppress should be denied." A second letter denying appellant's "motion to suppress" was issued by Judge Nall on April 4, 2006. Visiting Judge Ron Chapman presided over appellant's trial, which began May 23, 2006. On May 24, 2006, outside the presence of the jury, the trial court heard argument on appellant's request to reopen the motions to suppress to present additional evidence.² The trial court denied the request and appellant presented a bill of exception. Appellant's bill of exception included testimony of Rogers; Katherine Churchill, an employee of the Grayson County Health Department; and appellant. Rogers testified that during the June 7, 2004 interview with appellant, he heard appellant refer to taking Xanax. According to Rogers, appellant coherently answered every question he was asked. Rogers testified he probably told appellant during the interview that if appellant would "work with" him, that would "show cooperation on [appellant's] part in court." Churchill testified she spoke with appellant on June 7, 2004, following his videotaped interview, in order to determine his fitness to be incarcerated in jail. Churchill recalled smelling alcohol on appellant's breath. She testified appellant was coherent and appeared to understand everything she asked him. Appellant testified he had no recollection of the June 7, 2004 interview due to a "blackout" resulting from ingesting alcohol and Xanax at the same time. According to appellant, he first became aware of the interview when he watched the videotape with counsel more than a year later. Appellant stated, "I didn't understand none of it apparently. I don't remember it." Appellant pleaded not guilty at trial and did not testify. During trial, appellant's videotaped statement was introduced by the State. Appellant objected to the admission of the videotape "on the grounds that [the tape] does not satisfy Article 38.22 of the Code of Criminal Procedure, Section 3(a)3." The trial court overruled appellant's objection. After the trial court granted the State's request to play the videotape for the jury, the prosecutor stated, "Both parties agree that we are not going to ask the court reporter to transcribe the video." Appellant's counsel stated, "Right. It will be kept as an exhibit, so I don't have any objection." The jury found appellant guilty of murder and answered "yes" to the special issue respecting whether a firearm was used in the offense. Punishment was assessed by the trial court at forty years' confinement. This appeal followed. On January 4, 2007, this Court abated this appeal and ordered the trial court to enter, within thirty days, written findings of fact and conclusions of law regarding its ruling on appellant's motion to suppress. In addition, this Court stated that appellant's brief was due within sixty days of the January 4, 2007 order. On March 5, 2007, the trial court entered findings of fact and conclusions of law respecting a June 7, 2004 written "Statement of Cory D. Kellison."³ Appellant's appellate brief was timely filed on March 6, 2007. On March 7, 2007, the trial court entered findings of fact and conclusions of law, signed by Judge Nall, respecting appellant's videotaped statement. The trial court concluded as a matter of law that the admission of appellant's videotaped statement "did not violate any rights belonging to the defendant." Appellant filed a supplemental brief in this Court on April 16, 2007, "reurging" the three issues set out in his original appellate brief and asserting a fourth issue, described above.

II. HEARING ON APPELLANT'S MOTION TO SUPPRESS

We begin with appellant's second and fourth issues, which, taken together, essentially allege the trial court erred by denying appellant's motion to suppress his June 7, 2004 videotaped statement without conducting a legally cognizable hearing. Specifically, in his second issue, appellant asserts, "The failure of the Court below to afford Appellant a hearing on his Motion to Suppress his statement(s) violates his rights to due process of law guaranteed by U.S. Const. Amend. XIV and concomitant provisions of the Texas Constitution."⁴ In his fourth issue, appellant contends, "The court below erred in conducting a hearing without witnesses to determine admissibility and voluntariness of Appellant's statement." Appellant argues in his supplemental brief that "[e]ven if viewing of videotape by the court below is a "hearing," without live witnesses, the "hearing" is legally inadequate." Further, appellant contends, "[t]he prosecutor's inexplicable insistence that Visiting Judge Chapman endorse the result of the `non-hearing' destroyed Appellant's last chance" for a meaningful hearing and concomitant findings of fact and conclusions of law by the trial court. The State asserts, "The trial court did conduct a `hearing' on appellant's motion to suppress his confession given to law enforcement. This hearing was based upon the request of defense counsel and the agreement between the parties that the only evidence the court needed to review was the videotaped confession of appellant." Further, the State contends, Judge Chapman had the discretion to deny appellant's request at trial that he reopen the suppression issue.

A. Standard of Review

When reviewing a ruling on a motion to suppress evidence, we afford almost total deference to the trial court's determination of the historical facts and review de novo questions of law and mixed questions of law and fact not turning on an evaluation of credibility and demeanor. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex.Crim.App. 2005).

B. Applicable Law

In Jackson v. Denno, 378 U.S. 368, 376 (1964), the United States Supreme Court held:

It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, and even though there is ample evidence aside from the confession to support the conviction. Equally clear is the defendant's constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.

(citations omitted). The procedure used to decide the issue must be "fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend." Bass v. State, 626 S.W.2d 769, 772 (Tex.Crim.App. 1982) (quoting Jackson, 378 U.S. at 391). Based on Jackson, the Texas Court of Criminal Appeals has determined "the constitutional requirement of a separate hearing to determine the voluntariness of a confession is satisfied if, at some stage of the proceedings, a procedurally and substantively adequate hearing has been held." Id. at 773-74. Article 38.21 of the Texas Code of Criminal Procedure provides that a statement of an accused may be used in evidence against him if it appears the statement was freely and voluntarily made without compulsion or persuasion, "under the rules hereafter prescribed." Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). Article 38.22, section 6, provides in relevant part:

In all cases where a question is raised as to the voluntariness of a statement of an accused, the court must make an independent finding in the absence of the jury as to whether the statement was made under voluntary conditions. If the statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its conclusion as to whether or not the statement was voluntarily made, along with the specific findings of facts upon which the conclusion was based, which order shall be filed among the papers of the cause.

Id. art. 38.22, § 6. Under section 3(a) of article 38.22, no electronically recorded oral statement of an accused made as a result of custodial interrogation is admissible against the accused in a criminal proceeding unless the recording device was capable of making an accurate recording, the operator was competent, the recording is accurate and unaltered, and all voices on the recording are identified. Id. art. 38.22, § 3(a)(3)-(4). The Texas Court of Criminal Appeals has held there are three types of rules, or rights, in our judicial system. Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993). In the first category are absolute, systemic requirements that must be complied with regardless of whether there is any request or objection. Id. The clearest instances of nonwaivable, nonforfeitable systemic requirements are those affecting the court's jurisdiction. See Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App. 2004). In addition, several other absolute requirements have been recognized. See Saldano v. State, 70 S.W.3d 873, 888-89 (Tex.Crim.App. 2002) (listing such requirements). In the second category are rules that must be implemented unless expressly waived. Marin, 851 S.W.2d at 279. This category includes some constitutional rights, including certain procedural due process rights. See Ex Parte Alakayi, 102 S.W.3d 426, 434-35 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). A litigant is not deemed to have given up such a right unless "he says so plainly, freely, intelligently, sometimes in writing and always on the record." Marin, 851 S.W.2d at 280. Finally, the third category contains rules that must be implemented upon request, including most of "the myriad evidentiary and procedural rules comprising our system." Id. at 278.

C. Application of Law to Facts

In support of his assertion that "without live witnesses, the `hearing' is legally inadequate," appellant cites Garcia v. State, 15 S.W.3d 533 (Tex.Crim.App. 2000). In Garcia, the defendant challenged the admission of an alleged confession on the grounds the statement was involuntary. Id. at 534. A hearing was held and testimony was taken to determine the voluntariness of the statement. Id. The trial court determined the statement was not involuntary, and the statement was subsequently admitted at trial. Id. On appeal, the parties in Garcia agreed that although the trial court determined the defendant's statement was voluntarily made, the trial court failed to reduce its findings to a written order. Id. The Amarillo Court of Appeals abated the appeal and remanded the cause to the trial court for compliance with article 38.22, section 6, of the Texas Code of Criminal Procedure. Id. However, the trial judge to whom the cause was remanded was not the same trial judge who had held the hearing on the motion to suppress. Id. Following the affirming of the defendant's conviction by the court of appeals, the Texas Court of Criminal Appeals addressed the issue of whether it had been proper for the second trial judge to make a determination of the voluntariness of the defendant's confession based solely upon the written transcript from the earlier hearing. Id. at 535. The court of criminal appeals stated that because the first trial judge, who viewed the witnesses and heard their testimony, was in a better position to evaluate the witnesses' credibility and demeanor than the second judge, who had nothing to review but a "cold" record, it was not appropriate for the second judge to make findings of fact based solely on the written transcript of the initial hearing. Id. Further, the court noted, although the legislature has specifically authorized "paper hearings" in a limited number of contexts, "[t]he legislature did not use language permitting use of affidavits in [article 38.22] and, therefore, we must assume that `paper hearings' are not approved in that setting." Id. at 536. Appellant argues, based on a headnote, that Garcia stands for the proposition that "[h]earings without witnesses are not authorized to determine admissibility and voluntariness of defendant's statement to police." However, the court in Garcia did not state such a proposition, nor did the Garcia court address the application of its holding to videotapes. Moreover, appellant does not argue, and the case law does not suggest, that any hearing required pursuant to Jackson or article 38.22 is a "systemic" right that cannot be waived. See Marin, 851 S.W.2d at 279; Saldano, 70 S.W.3d at 888-89. Appellant states in his original appellate brief, "In lieu of a hearing on Appellant's suppression motions, the prosecutor proposed that the court below simply review the videotaped statement, then rule on Appellant's suppression motions. Inexplicably, Appellant's court-appointed defense counsel agreed." At trial, when the State referenced that agreement on the record, appellant did not dispute the agreement had been made. Further, nothing in the record indicates appellant's decision to agree to the arrangement purportedly proposed by the State was not made "freely and intelligently." See Marin, 851 S.W.2d at 280. Thus, regardless of whether Jackson and/or article 38.22 establish a right to a hearing with "live" witnesses, we conclude appellant waived such right by his own undisputed agreement. See Ieppert v. State, 908 S.W.2d 217, 219 (Tex.Crim.App. 1995) (even due process rights can be waived); see also Reed v. State, 227 S.W.3d 111, 117 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd) (compliance with requirements of article 38.22, section 3(a), waived by appellant). In addition, we conclude the trial court did not err in denying appellant's May 24, 2006 request for a "hearing during the trial" respecting the voluntariness of his videotaped statement "and other oral statements made." Article 36.02 of the Texas Code of Criminal Procedure provides, "The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice." Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). Article 36.02 has been interpreted to allow trial courts, in their discretion, to reconsider their own earlier suppression rulings. Montalvo v. State, 846 S.W.2d 133, 137 (Tex.App.-Austin 1993, no pet.). Here, appellant requested a "hearing during the trial" based on his position that he had "additional evidence to present" respecting his statements. Appellant presented no authority at trial to support his request, nor does he provide supporting authority on appeal. See id. Based on the record before us, we conclude the trial court's denial of appellant's request for a "hearing during the trial" was not an abuse of discretion. Appellant's second and fourth issues are decided against him.

III. TRIAL COURT'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

In his first issue, asserted for the first time in his original appellate brief filed March 6, 2007, and "reurged" in his April 16, 2007 supplemental appellate brief, appellant contends, "The inability of the Court below to enter Findings of Fact and Conclusions of Law mandated by Tex. Code Crim. Proc. Ann. art. 38.22 § 6 requires reversal and a new trial." The State argues that because the trial court filed findings of fact and conclusions of law pursuant to article 38.22 on March 7, 2007, appellant's first point of error is moot. However, appellant contends the trial court's filing of findings and conclusions "after a hearing that never occurred" does not moot this issue. Appellant argues the trial court was" unable to file trustworthy findings having wholly failed to conduct a hearing." (emphasis original). Therefore, appellant argues, the trial court's filing of findings and conclusions was not a "satisfactory response," to this Court's January 4, 2007 abatement order, and a new trial is required. It is well settled that article 38.22, section 6, "is mandatory in its language and that it requires a trial court to file its findings of fact and conclusions of law regarding the voluntariness of a confession whether or not the defendant objects to the absence of such omitted filing." Wicker v. State, 740 S.W.2d 779, 783 (Tex.Crim.App. 1987); Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App. 2004). A trial court satisfies the requirements of article 38.22, section 6, when its findings and conclusions "are transcribed and made a part of the statement of facts, filed with the district clerk and made a part of the appellate record." Murphy v. State, 112 S.W.3d 592, 601-02 (Tex.Crim.App. 2003); Parr v. State, 658 S.W.2d 620, 623 (Tex.Crim.App. 1983). In support of his argument, appellant cites Nichols v. State, 810 S.W.2d 829 (Tex.App. Dallas 1991), pet. ref'd per curiam, 815 S.W.2d 732 (Tex.Crim.App. 1991). The trial court in Nichols, after a lengthy hearing, determined that a confession made by the defendant was voluntary. Id. at 831. However, the trial court did not enter findings of fact and conclusions of law in accordance with article 38.22, section 6. Id. After this Court abated the appeal, the trial court entered an order stating its conclusion, but failed to state specific facts upon which its conclusion was based. Id. This Court held the trial court's findings were "too conclusional to fulfill their purpose of assisting this Court and [the defendant] in determining the basis for the trial court's decision that the statement was made voluntarily." Id. at 832. Further, this Court stated, since the case had already been abated once, the defendant's position was "analogous to that of an appellant who, through no fault of his own or his counsel, is unable to obtain a statement of facts to prepare his appeal." Id. at 833. Therefore, this Court held, the defendant was entitled to a new trial. Id. Here, appellant does not specifically challenge the substance of the findings of the trial court respecting his videotaped statement, but rather argues the findings are not "satisfactory" because the trial court "wholly failed to conduct a hearing." However, as we determined above, appellant's undisputed agreement that the trial court would review his videotaped statement, then rule on his suppression motions, constituted a waiver of any right to a hearing with "live" witnesses. The requirements of article 38.22, section 6, are satisfied when the trial court's findings and conclusions "are transcribed and made a part of the statement of facts, filed with the district clerk and made a part of the appellate record." Murphy, 112 S.W.3d at 601-02; Parr, 658 S.W.2d at 623. According to the record, that has been done in this case. Appellant's first issue is decided against him.

IV. RECORD OF APPELLANT'S VIDEOTAPED STATEMENT

In his third issue, appellant asserts, "A proper record of appellant's videotaped statement does not exist and cannot be obtained, thereby mandating reversal." Appellant argues he "did not personally waive a reporter's record of the tape, nor was he asked by the court below, his counsel, or the prosecutor, whether he agreed to such a waiver." (emphasis original). Because no record was made at the time the videotape of appellant's statement was published to the jury, appellant contends, "the appellate record simply cannot be supplemented in any legally/or [sic] constitutionally permissible fashion." Appellant asserts, "This `tragi-comedy' can only be remedied by granting appellant a new trial." The State asserts the court reporter was not requested by defense counsel to transcribe appellant's videotaped statement after it was admitted into evidence, nor did defense counsel object to the lack of transcription. Further, the State contends, a request and/or objection were required in order to preserve this issue for appeal. Rule 13.1(a) of the Texas Rules of Appellate Procedure requires the official court reporter to attend court sessions and make a full record of the proceedings unless excused by agreement of the parties. Tex. R. App. P. 13.1(a). However, section 52.046 of the Texas Government Code provides that "on request," the court reporter must record all proceedings. Tex. Gov't Code Ann. § 52.046 (Vernon 2005). "When confronted with the apparent conflict between rule 13.1(a) and section 52.046 of the government code, the rule must yield." Langford v. State, 129 S.W.3d 138, 139 (Tex.App.-Dallas 2003, no pet.) (citing Polasek v. State, 16 S.W.3d 82, 89 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd)). Thus, an appellant wanting a recording of proceedings is required to make a request pursuant to section 52.046, irrespective of the provisions of rule 13.1(a). Id. Further, an objection is required to preserve a complaint respecting the court reporter's failure to record proceedings. Valle v. State, 109 S.W.3d 500, 509 (Tex.Crim.App. 2003). It is commonly understood that attorneys are agents of their clients, and any actions taken in court by attorneys are done so on behalf of their clients. Fonseca v. State, 163 S.W.3d 98, 102 (Tex.App.-Fort Worth 2005, pet. ref'd). This rule unquestionably applies in cases of attorneys appointed by the court to represent a party, as well as those cases where the party employs his attorney himself. Id. at 101. In this case, after the trial court granted the State's request to publish appellant's videotaped statement to the jury, the prosecutor stated, "Both parties agree that we are not going to ask the court reporter to transcribe the video." Then, appellant's counsel stated, "Right. It will be kept as an exhibit, so I don't have any objection." We conclude the waiver by appellant's trial counsel respecting the transcription of the videotape was effective as to appellant. See id. at 101-02. Moreover, the record does not reflect an objection by appellant to the court reporter's failure to transcribe the videotape, nor does appellant assert he made such an objection. Therefore, appellant has failed to preserve his complaint for appeal. See Valle, 109 S.W.3d at 509. We decide appellant's third issue against him.

V. CONCLUSION

Appellant's four issues are decided against him. The judgment of the trial court is affirmed.