Opinion
No. AP-76,328
Delivered June 29, 2011.
On Direct Appeal from Cause No. 1194597 in the 209th District Court, Harris County.
KELLER, P.J., delivered the opinion of the Court in which MEYERS, WOMACK, JOHNSON, KEASLER, COCHRAN, and ALCALA, JJ., joined. PRICE, and HERVEY, JJ., concurred.
In April 2010, appellant was convicted of the capital murder of a peace officer and sentenced to death. Direct appeal to this Court is automatic. Appellant raises six points of error. Finding no reversible error, we affirm the conviction and sentence.
Tex. Penal Code § 19.03(a)(1); Tex. Code Crim. Proc. art. 37.071. Unless otherwise indicated, all future references to articles are to the Code of Criminal Procedure.
Art. 37.071, § 2(h).
I. BACKGROUND A. Events from the Perspective of Witnesses and Law Enforcement 1. Before the Incident
Lakedra Franklin was appellant's ex-girlfriend and the mother of his three children. We do not know when appellant began obsessively calling her, but cell-phone records admitted at trial showed that, from five seconds after midnight on December 7, 2008, until 8:44 that morning, appellant called her at least eighty-nine times. Communication between the two phones occurred at least twenty-two times between midnight and 4:14 a.m., at least twenty-nine times between 4:26 and 5:42 a.m., at least twenty-two times between 4:42 and 7:04 a.m., and at least eighteen times between 7:06 and 8:11 a.m. At 6:08 a.m., Officer James Lowery of the Houston Police Department (HPD) answered a disturbance call from Franklin's apartment. In the parking lot, he encountered appellant, who was smoking a cigarette. Appellant denied knowing anyone in Franklin's apartment and said he was waiting for his cousin. Officer Lowery later attempted to confront appellant, who ran. Officer Lowery chased him but lost him. Officer Lowery noticed that appellant's hair was a small afro and that he was dressed in black. There was a scar near one of appellant's eyes. At 7:09 a.m., HPD Officer Darrell Williams answered a second disturbance call from Franklin's apartment. Officer Williams warned appellant on the phone that threatening someone was unlawful and advised him to stop calling Franklin and to stay away from the location. From 8:11 to 8:44 a.m. there were no more than six calls made to or from appellant's cell phone.2. The Incident
HPD Officer Timothy Abernethy would soon become a murder victim. He met with HPD Officer Derrick Skinner on a disorderly conduct call at 8:30 that morning. Shortly after leaving the location of that call, Officer Abernethy conducted a traffic stop of a Red Dodge Durango. The Durango belonged to appellant's step-brother, but appellant was driving it. On his on-board computer, Officer Abernethy checked the license-plate number, which was registered in the step-brother's name and at an associated address. What Officer Abernethy did not know was that appellant was on parole for felony DWI, was driving without a license, and was in possession of a firearm. Saul Benitez, a resident at the Luxor Park apartment complex, saw the Durango pull into the complex, followed by Abernethy's patrol car with its flashing lights on. Benitez saw appellant get out of his vehicle and immediately run away. Officer Abernethy yelled at appellant to stop and began chasing him. After Benitez lost sight of both individuals, he heard gunshots. Benitez went inside and began writing down the Durango's license-plate number. Ditreuchie Brazil, who made her living as a security guard in Louisiana, was visiting her son and daughter-in-law, who lived at the complex. Upon hearing two gunshots, Brazil ran to the window, hearing four or five more gunshots as she did so. When she looked out the window, she saw Officer Abernethy chasing appellant down the sidewalk. She then saw appellant duck behind a building, turn around, and shoot the officer. After Officer Abernethy fell to the ground, appellant walked over close to the officer's head and shot the officer in the head. Brazil shouted to her son that an officer had been shot. She saw appellant leave, acting calm. She got a good look at him. Upon hearing gunshots, Michael Triggs looked out the window and saw Officer Abernethy on the ground and appellant running away with a gun in his hand. Triggs saw appellant's face clearly and noticed that the gun was a semiautomatic weapon. After hearing gunshots, April Alfred went outside and saw Officer Abernethy on the ground with blood coming out of his mouth. After feeling his pulse, Alfred went inside to retrieve her cell phone and some towels to apply to the officer's wounds. In a second-floor apartment, Cynthia Chatman heard gunshots. After lying on the floor for awhile, she opened her door and saw Officer Abernethy down on the grass. Triggs, Alfred, and Chatman each called 911. As Benitez was writing down the Durango's license-plate number, appellant came back to the vehicle and drove away. Benitez got a good look at appellant's face but was able to write down only the first four digits of the license-plate number. After appellant drove away, Benitez ran to find the officer, who was lying on the ground in a puddle of blood. Benitez then went back to his apartment and called the police and was told that someone was already coming. Officer Abernethy died soon thereafter.3. Appellant's Capture
At 8:40 a.m., Officer Skinner received an emergency dispatch to assist an officer. Using his siren and flashing lights, he sped to the scene, arriving a couple of minutes later. There, he was flagged down and directed to Officer Abernethy. Officer Skinner talked to Benitez, who gave him information about the suspect and the vehicle, and Skinner radioed this information to the police dispatcher. After hearing the dispatch to assist an officer, Officer Williams also came to the scene. He found Officer Abernethy's patrol car, with its lights flashing, the door open, and the keys in the ignition. Reviewing the readout on Officer Abernethy's computer screen, Officer Williams obtained and reported the full license-plate number and the VIN of the Durango, as well as the address shown on the registration. Deputy Gary Smidt of the Harris County Sheriff's Office was patrolling near the area with a trainee, Deputy Chris Crouch. Transtar, the traffic-mobility unit of Harris County, issued an "officer down" dispatch. Deputy Smidt checked the license-plate number on his on-board computer and determined that the registration address was far from his area. He then ran the owner's name (appellant's step-brother) and retrieved an address on Hombly Street, which was close to where he was. Deputy Smidt proceeded to Hombly Street. At 9:15 a.m., while on a street that crosses Hombly, Deputy Smidt saw the Durango in the driveway of the address he had retrieved, and he noted that the description and license plate matched the dispatch. Deputy Smidt then called other sheriff's units to set up a perimeter, and he moved his vehicle into a position outside of the direct line of sight of persons in the house. He pulled out his shotgun and waited for other units to arrive. As sheriff's units moved into position, an HPD patrol car arrived on the scene, and an HPD helicopter arrived overhead. At this time, Deputy Smidt spied appellant smoking a cigarette while standing on a sidewalk underneath a tree. Upon seeing the HPD officer leave his vehicle and approach appellant, Deputies Smidt and Crouch did the same. Deputy Smidt called out to appellant three times, but appellant ran, and Deputy Smidt began chasing him. Appellant broke through fences and ran through several back yards. Twice, appellant's positioning prompted Deputy Smidt to fire his shotgun, but he missed both times. After at least five broken fences or gates, and after another deputy had joined in the chase, a bystander pointed the deputies to an area where appellant was hiding behind a trash can between two houses. After being ordered to come out several times, appellant finally complied and was taken into custody. Deputy Smidt aimed his shotgun at appellant while appellant was being handcuffed by another deputy.4. Further Investigation
HPD took custody of appellant. Officer Michael Walding placed bags on appellant's hands to preserve any evidence of gunshot residue. When asked about appellant's demeanor when Officer Walding first encountered him, Officer Walding replied, "He didn't say anything. I didn't ask him any questions either. He didn't say a word. He was agitated after he was in the back of the patrol car, but he didn't say anything to me or any other officers that were around me." Appellant was returned to the Luxor Park apartment complex for possible identification. He was shown to Triggs, who recognized him as the man he had seen earlier. Triggs later identified appellant in the courtroom and testified that there was no doubt in his mind that appellant was the person he saw. When asked if he noticed anything different about appellant when he was brought back to the scene, Triggs said that appellant had shaved his head since the first time he saw him. As Benitez was preparing to go to the police station to give a statement, he saw appellant with some officers at the scene. He recognized a mark on appellant's left cheek, though he noticed that appellant was wearing different clothing and had shorter hair. Benitez told the officer who was escorting him that the person at the scene was the same person he had seen earlier. Benitez also identified appellant in the courtroom. Officer Walding had followed the patrol car carrying appellant to the Luxor Park apartment complex. At the scene, Officer Walding remained with appellant the entire time, about an hour and a half. The patrol car that originally transported appellant got a flat tire, so appellant was placed in Officer Walding's car, and Officer Walding drove him to the HPD homicide division. Officer Walding had no conversations with appellant. At the homicide division, Sergeant Brian Harris and Sergeant Bobby Roberts interviewed appellant. According to Sergeant Harris's trial testimony, the following occurred: Appellant was read Article 38.22 warnings and asked if he understood each warning. He responded affirmatively each time. Appellant was then asked if he wanted to waive the warnings. Again, appellant responded affirmatively. Appellant was fed lunch, consumed quite a few bottles of water, and was allowed to use the restroom. No promises or threats were made, and appellant never asked for a lawyer or to terminate the interview. Appellant ultimately gave officers a video-recorded confession. Officers noticed that appellant had a very bad haircut. Photos showed that his head had been shaved but there were splotchy sections of hair. Appellant purported to help officers look for his gun. Despite his assistance and other diligent efforts to find the gun, it was never recovered. Appellant's father gave consent to search his house on Hombly Street. The police found two pairs of hair clippers, clumps of hair in two or three places inside the house, hair inside a trash bag, and black clothing consistent with descriptions of the clothing worn by the perpetrator. The next day, police officers showed Brazil a photospread, and she immediately picked appellant's photo. She also identified appellant in court. Four .40 caliber casings were found at the crime scene. Toolmark analysis indicated that the casings were from bullets that were all fired from the same gun. The distribution of the casings indicated that the shooter was advancing or progressing along the sidewalk. Bullets or bullet fragments found in Abernethy's body, in a car tire, and in the ground underneath where Abernethy's body had lain showed characteristics that were consistent with .40 caliber bullets. Two fingerprints from the driver's door — one on the inside and one on the outside — matched appellant. Gunshot-residue analysis of appellant's hands found no residue on his left hand but was inconclusive as to the right hand. Gunshot-residue analysis of the steering wheel and gearshift of the Durango yielded positive results. Officer Abernethy's gun was clean, the cartridge magazine was full, and one cartridge was in the chamber, indicating that his gun had not been fired that day. An autopsy revealed that Officer Abernathy had been hit by three bullets. One bullet had struck his left arm but did not penetrate (perhaps because of a bullet-proof jacket). Another bullet passed through Officer Abernethy's neck. Because that bullet did not strike the spinal cord, carotid artery, or any vital organ, Officer Abernethy could have survived that wound. But a fatal wound was inflicted by a third bullet, which struck Officer Abernethy's head. That bullet entered the back of the head and exited the front of the head above the left eye. The gunshot wound to the head was a "loose contact wound," which meant that part of the gun barrel was in direct contact with the scalp when the gun was fired.B. Appellant's Video Confession
As we observed above, Sergeant Harris and Sergeant Roberts obtained a video-recorded confession from appellant. All of the warnings required by Article 38.22 were given near the beginning of the video, before any discussion about the incident. Appellant was asked after each warning if he understood it, and appellant answered affirmatively each time. Sergeant Harris then told appellant that he had to "voluntarily and knowingly waive, that means give up those rights" in order for Harris and Roberts to hear appellant's story. Sergeant Harris then asked, "Do you understand all that? Are you ready to tell us your story? Are you ready? You may not ever be ready to accept what happened, ok, but we want to hear about the events that led up to what took place today, do you understand that?" Appellant responded, "Yes." On the video, appellant gave the following version of events: Appellant took his brother's keys and drove the Dodge Durango. Upset and contemplating suicide, he brought with him a .45 automatic pistol. At some point, appellant began to calm down and headed for home. On his way home, he was "pulled over." Appellant "got out of the car" because he was on parole and was not supposed to have a firearm. Then he fell, and the gun went off. The police officer then reached for his gun, and appellant started shooting. Seeing that the officer was dead, appellant returned to his vehicle and drove home, throwing the gun out of the car somewhere along the way. After he arrived home, appellant cut his hair. A little while later, the police arrived, and that was "[t]he end of my life." In the interview, appellant made several statements that could be taken as expressions of remorse. After referring to "the end of my life," appellant said, "Sorry, I didn't mean for that to happen." Later, when asked if there was something he could "say to that officer's family," appellant responded, "I'm sorry. I got scared. It's a freak accident, a spur of the moment type thing. I'm contemplating suicide myself. It was wrong to be armed." When asked what he would say to Lakedra and his child, appellant responded, "I'd take it all back." When asked if he wanted to say anything else, appellant said, "This is the worst mistake of my life."C. Appellant's Trial Testimony
Appellant testified at trial that he drove the Red Dodge Durango to the Luxor Park Apartments to visit an aunt and that he was not carrying a firearm that day. After he was pulled over by a police officer, he got out of the vehicle and ran. Appellant claimed that he did so because he was driving without a license while on parole for DWI. Appellant further claimed that he heard what sounded like gunshots, turned around to see what was happening, but slipped and fell. After determining that he was not being followed, appellant said, he returned to the Durango and drove home. Appellant admitted that, while at home, he took off his black clothing and shaved his head. Appellant also testified that, about ten minutes after he was taken back to the scene of the incident, an officer approached the patrol car he was in and threatened him. Appellant further claimed that, at the homicide division, he invoked his right to terminate the interview after he was told of that right, but the interrogating officer ignored him and continued asking questions. And appellant testified that ten to twelve officers were packed right outside the door during the interview. Appellant also said that Roberts told him that "they was the good guys and there would be people that would come out from the hall that would poke me in my chest." He further testified that he was told that the only way to beat the death penalty was to talk and make himself look less like an animal. Appellant claimed that the confession was untruthful because it was given out of fear for his life. When asked why was he in fear, appellant replied that it was because of the shots being fired, being told that he was never going home, and several things that he "considered as a threat," though appellant did not specify what they were. Appellant admitted that he lied when he first told the officers that he was not even present at the scene that day.II. ADMISSION OF CONFESSION
In point of error one, appellant contends that "uncontroverted allegations of coercion rendered his custodial statement inadmissible as a matter of law." He argues that his own testimony with respect to three facts was uncontroverted: (1) that he was shot at, (2) that he was threatened by a police officer while he was sitting in a patrol car, and (3) that an officer dropped his knee on appellant's head at the time appellant was arrested. Conceding the general rule that the trial court is the sole judge of the credibility of the witnesses, he nevertheless maintains that there is an exception in the confession context for uncontroverted allegations of coercion and that the trial court was required to credit his uncontroverted testimony. He further argues that crediting this testimony compels a finding that his confession was involuntary and should have been suppressed.A. Circumstances Surrounding the Confession
Sergeant Harris and appellant were the only individuals to testify at the pretrial suppression hearing. We turn to their respective versions of the events relating to appellant's confession.1. Pretrial Testimony of Sergeant Harris
According to Sergeant Harris, he and Sergeant Roberts began an oral, unrecorded interview with appellant. At the time the interview was conducted, Sergeant Harris was aware that a sheriff's deputy had shot at appellant in the course of apprehending him. At the beginning of the interview, appellant was read all of the Article 38.22 warnings and asked if he understood each of them. Appellant answered affirmatively. Sergeant Harris then asked appellant if he would intentionally and knowingly give up his rights, and appellant stated that he would and that it was "no big deal" because he had nothing to hide. Because the noon hour was approaching, Sergeant Roberts brought some food from McDonald's and ate lunch with appellant. While appellant and Sergeant Roberts were eating, Sergeant Harris left for fifteen to twenty minutes to do some more investigation. Upon his return, Sergeant Harris began to ask appellant about the incident. During the course of the interview, appellant drank at least five twelve-ounce bottles of water and a big glass of Sprite. Appellant was allowed to use the restroom, and although he was accompanied on the restroom breaks, other officers in the building were cleared from the hallway during that time. Sergeant Harris told appellant that he was not being taped or recorded at that time, and for the most part, what they talked about would not be admissible. So, Sergeant Harris continued, if appellant "wanted his side of the story," it had to be in writing or on video. Sergeant Harris further testified that no promises or threats were made to appellant, and appellant never invoked his right to counsel or his right to terminate the interview. Once during the interview, appellant looked up and asked if Sergeant Harris thought appellant should get an attorney. Sergeant Harris then reiterated that appellant had a right to have an attorney present to advise him prior to and during any questioning and asked appellant if he understood that right. Appellant nodded his head up and down. Sergeant Harris then asked, "Are you telling me now that you want an attorney?" Appellant responded by shaking his head from right to left and said that he wanted to continue with the interview. At some point during the interview, during an emotional part, Sergeant Harris said, "Look, I would prefer you just stop this interview rather than you continue on with the same old story, the same old lies I had been hearing." Appearing almost apologetic, appellant then related a version of events that was later conveyed, for the most part, on the video. Appellant agreed to memorialize his statements, and when given the choice of a written statement or a video, appellant chose to do a video.2. Appellant's Pretrial Testimony
According to appellant, the following events occurred at the time of his arrest: He was walking in the neighborhood when an officer walked toward him with a shotgun. Upon seeing the officer cock the shotgun, appellant "started moving a little faster," and the officer shot at him. When appellant was caught, he was ordered onto the floor. When appellant complied, an officer dropped his knee on appellant's head and handcuffed him. When appellant got up, he was walked to the police cruiser, bags were placed on his hands, and he was placed inside the officer's car. Later, appellant was taken back to the scene, and a "Spanish" officer opened the cruiser door slightly and said, "You're lucky it wasn't me. I would have shot you in the mouth." Appellant did not know the Spanish officer's name, and he "wasn't even controlling the case." Appellant testified that the following occurred during the interview with Sergeants Harris and Roberts: When he was told he could ask for a lawyer or terminate the interview, appellant told them that he wanted to terminate the interview. After two hours, Sergeant Harris returned and made an "indirect threat," playing good cop/bad cop, saying, "We're the good guys, but we got guys out there that come in and poke you in the chest." At that time, appellant's "nerves [were] gone," and he "was in fear for [his] life." In addition, whenever the door was opened, the hall was crowded with police officers, although the hall was cleared when he was taken to the restroom. Under cross-examination, appellant acknowledged that Sergeant Harris gave him an opportunity on the video recording to say anything else he would like anyone to know. Nevertheless, appellant admitted that he said nothing about the Spanish officer threatening him, or about Sergeant Harris's good cop/bad cop statements, or about any other mistreatment appellant might have suffered at the hands of the police. At the end of the pretrial hearing, appellant asked to add one more comment. He stated that he was told he was under arrest, was never going home, could see his father but was not going to have contact, and the only way appellant "would beat the death penalty was to testify or say something" so he "wouldn't look like a monster."3. The Trial Court's Findings
The trial court issued findings of fact and conclusions of law regarding appellant's confession. They include findings that appellant "was not promised anything in exchange for his statement" and that "the officers did not threaten [appellant] or use any intimidation, coercion, or force against [appellant]." The trial court also found that appellant did not invoke his right to an attorney or his right to terminate the interview. Other findings were made that were consistent with Sergeant Harris's testimony at the pretrial hearing. In addition, the trial court found the testimony of Sergeant Harris to be "true and credible." Finally, the trial court made a finding that appellant's testimony was not credible: The defendant testified as to certain alleged "indirect threat[s]" he claimed placed him "in fear for [his] life" and rendered his statement involuntary. After viewing the demeanor of the defendant while testifying and considering the circumstances surrounding his statement as alleged in his testimony as compared with the circumstances surrounding the defendant's statement as testified to by Sergeant Harris, the testimony of the defendant is found to be untruthful and not credible.B. Analysis 1. The Trial Court Was Not Required to Believe Most of Appellant's Testimony a. Role of the Trial Court
We have stated numerous times that the trial court is the sole judge of the credibility of the witnesses and may believe or disbelieve any witness who testifies at a suppression hearing, and we have said that this principle is particularly true where the suppression motion is based on the voluntariness of a confession. This principle was reinforced by our decision in Guzman v. State, which held that a trial court must be afforded "almost total deference" to its determinations of historical fact, especially when those determinations turned upon an evaluation of credibility and demeanor, and by our decision in State v. Ross, which held that a trial court was free to disbelieve a witness even when the testimony was uncontroverted. We have continued to hold that a trial court may believe or disbelieve all or part of a witness's testimony even if that testimony is uncontroverted, and we have so held when determining whether a confession was involuntary. Appellant relies upon Smith v. State, Sherman v. State, and Farr v. State for the proposition that an exception exists in the confession context for uncontroverted allegations of coercion. The rule was stated this way in Farr, "It has long been the law of this State that whenever the testimony of the accused as to alleged coercive acts is undisputed, then as a matter of law the confession is inadmissible." Smith, Sherman, and Farr all involved witnesses that the State failed to produce. In Smith, the defendant testified that he had been beaten and threatened by New Orleans police, but no New Orleans police officers testified. In Sherman, the defendant claimed that the Chief Deputy threatened him with the death penalty if he did not sign a confession, but the Chief Deputy was not called as a witness. In Farr, the defendant identified two police officers involved in misconduct: one officer slapped and choked him, while the other police officer told the defendant to confess or the first officer would kill him. Neither officer was called to testify. Although other witnesses testified in each of these three cases, none of them were shown to have been in a position to observe whether the events alleged by the defendant had occurred. And the absences of the witnesses that were involved in the events were not satisfactorily explained. First, we note that the rule in these cases was derived, in part, from language in Supreme Court cases, but the Fifth and Seventh Circuits have cautioned that federal law does not always require courts to credit a defendant's uncontroverted allegations of coercion. Given our holdings that a trial court can disregard uncontroverted testimony, it cannot be the case that a trial court is required to believe a defendant's allegation of coercion solely on the basis that it is uncontroverted. Moreover, there is a difference between (a) the failure of the State to produce a witness within its control (as occurred in Smith, Sherman, and Farr) and (b) the State producing the witness, with neither the State nor the defense asking him specifically about the defendant's allegations of coercion (as occurred here).b. Scope of Review
Here, the allegations that appellant contends were uncontroverted all related to events that occurred before he arrived at the homicide division. Sergeant Harris, the State's only witness at the suppression hearing, was not in a position to observe any of those events. But, citing Gutierrez v. State, appellant acknowledges that an argument could be made that the admissibility of his confession was consensually re-litigated at trial. In Rachal v. State, for instance, we found consensual re-litigation to have occurred with respect to the type of claim before us. In that case, Detective Phillips agreed to step out of the room to allow Detective Brown to spend ten minutes alone with the defendant. At the suppression hearing, the defendant testified that Detective Brown threatened him during those ten minutes. Detective Brown did not testify at the suppression hearing, but he testified at trial and denied that he engaged in coercive conduct. Defense counsel did not object to this testimony and, in fact, fully participated in the inquiry. We held: "Where the State raises the issue at trial either without objection or with the subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate to our review." We also explained that "it would be unreasonable to ignore trial evidence in our review of the court's suppression decision only to be confronted by the evidence in our consideration of whether the error was harmless." In the present case, part of the defense's trial strategy was to attack the voluntariness of the confession. Appellant challenged the voluntariness of the confession through his own trial testimony, including testimony about the shots fired at him and general testimony about a threat made against him while he was in a patrol car. Defense counsel's cross-examination of the witnesses also addressed the shots fired by Deputy Smidt, what happened when appellant was finally caught, and whether Officer Walding was in appellant's presence during the entire time appellant was in custody at the Luxor Park Apartments (which included the time appellant was allegedly threatened by a Spanish officer). Under these circumstances, it is appropriate for us to consider the testimony both at the suppression hearing and at trial in resolving appellant's involuntary-confession claim.c. Appellant's Specific Allegations
We turn to the three allegations that appellant contends were uncontroverted: (1) that he was shot at, (2) that he was threatened by a police officer while he was sitting in a patrol car, and (3) that an officer dropped his knee on appellant's head at the time he was arrested. With respect to the first allegation, both sides agree that Deputy Smidt fired two shots at appellant, but Deputy Smidt's trial testimony differed from appellant's testimony regarding the timing of those shots. Appellant's testimony suggested that Deputy Smidt fired almost right away with no provocation, while Deputy Smidt indicated that he fired shots in the middle of a chase when appellant's position posed a potential danger to the him. The trial court was free to believe that the shots were fired under the circumstances testified to by Deputy Smidt. As for the second allegation, the trial court was free to disbelieve it in its entirety. Before the State can be held at fault for failing to produce a witness, it must first be established that such a witness exists. The only evidence of the existence of a "Spanish officer" who threatened appellant was appellant's own testimony, and the trial court was free to disbelieve that testimony. But even if we were to inquire further, Officer Walding testified that appellant was in his presence during the entire time he was in custody at the apartment complex — the time during which, according to appellant, the Spanish officer talked to him. Officer Walding's testimony did not mention a Spanish officer, and neither of the parties broached the subject in their questioning. The trial court was also free to disbelieve the third allegation in its entirety. Deputy Smidt was present during appellant's arrest, and defense counsel had the opportunity to question him about whether any of the deputies engaged in the behavior that appellant had described. Further, appellant made other allegations of coercion that he does not now dispute were controverted. He accused Sergeants Harris and Roberts of ignoring requests to terminate the interview and of telling him that they could bring in other officers who would "poke him in the chest." But Sergeant Harris testified that no threats were made and that appellant never asked to terminate the interview. The trial court was free to believe that these particular, disputed allegations of coercion were untrue and that the falsity of these allegations reflected poorly on appellant's credibility with respect to his other allegations.2. Any Testimony the Trial Court Was Required to Believe Did Not Establish that the Confession Was Involuntary
In order for a confession to be rendered involuntary by police coercion, the police must have engaged in coercive misconduct that caused the suspect's will to be overborne. For official conduct to qualify as the type of conduct that renders a confession involuntary, it must not simply be "coercive" but must also be "wrongful." A suspect's will is "overborne" if the confession is not "the product of an essentially free and unconstrained choice by its maker." With respect to the items listed by appellant as "uncontroverted," the only testimony the trial court was required to believe was that appellant was shot at. Viewing the evidence in the light most favorable to the trial court's ruling, we infer that the trial court believed that the shots occurred during the chase at times when appellant appeared to pose a potential danger to Deputy Smidt. Under those conditions, being shot at was not a circumstance that could have rendered appellant's confession involuntary. Deputy Smidt's acts of shooting did not constitute wrongful conduct. The deputy's acts were reasonable efforts to prevent appellant from turning him into appellant's next victim. Nor can we find that the shots caused appellant's will to be overborne when appellant was otherwise treated well. The shots were not in any way connected with the later efforts to elicit a confession, appellant was not threatened by any of the officers who elicited his confession, and appellant was allowed restroom breaks and given plenty of food and drink during the interrogation. Over forty years ago, the Supreme Court of New Jersey addressed a similar fact situation. In that case, the defendant shot and killed a police officer on the New Jersey Turnpike. During a manhunt for him, the defendant was subsequently chased by another officer into a wooded area. The pursuing officer saw the defendant "emerge from the far side of a stream and when the man refused to stop," the officer "fired a shot but missed." When the defendant, who was "wet and cold," was ultimately captured, his wet clothes were removed; he was given a warm jacket, coffee, and cigarettes; he was offered food; and he was given the equivalent of Miranda warnings. After interrogation, the defendant subsequently gave a confession. On appeal, he claimed that the trial court erred in admitting the confession because "his physical and mental condition, resulting from the vigorous and intensive `hot' pursuit and his fear of the police were `coercive circumstances' which convinced defendant that for his own safety he must give a statement." The court upheld the confession as voluntary. We likewise conclude that appellant's confession was voluntary under the similar circumstances presented. But even if appellant's other two allegations were credited — the knee-to-the-head incident and the incident with the unknown Spanish officer — we could not conclude that such circumstances caused appellant's will to be overborne. Appellant has never claimed that the officers in those incidents made any attempt to persuade him to make a statement. And although appellant characterized it as a threat, the statement allegedly made by a Spanish officer was a statement about what he would have done to appellant in the past, during the chase, not about what might happen to appellant in the future. Moreover, the interrogation was at least somewhat removed in time, occurred in a different setting, and was conducted by different officers from those in the alleged incidents. The interrogating officers never attempted to exploit any of the three alleged incidents upon which appellant relies. The United States Supreme Court has explained that, in assessing the totality of the circumstances, we look to "both the characteristics of the accused and the details of the interrogation." But the incidents of which appellant complains occurred outside the interrogation setting and had no obvious connection to it. Even if the incidents were viewed as prior illegal conduct similar to an illegal arrest, any taint from that conduct would have been attenuated under our precedents. In assessing the attenuation of the taint, courts look to four factors:(1) whether Miranda warnings were given;
(2) the temporal proximity of the arrest and the confession;
(3) the presence of intervening circumstances; and
(4) the purpose and flagrancy of the official misconduct.Article 38.22 ( Miranda) warnings were given to appellant. Appellant spent more than an hour at the scene after the alleged incidents and before the interrogation. There were also intervening circumstances present: Appellant was taken to a different location, given lunch, and questioned by different officers than those who allegedly engaged in misconduct. The knee incident, if it occurred, might be considered a "flagrant" abuse of authority, but its purpose would not appear to be to elicit a confession. The unknown Spanish officer's conduct, if he existed and if it occurred, seems to be neither flagrant nor aimed at securing a confession. The balance of factors would weigh in favor of finding attenuation, if an attenuation analysis were even deemed necessary.
3. Harm Analysis
But even if the statement were found to have been admitted in violation of the United States Constitution, we would find its admission to be harmless. For constitutional error to be harmless, a court must determine "beyond a reasonable doubt that the error did not contribute to the conviction or punishment." When the constitutional error involves the admission of a defendant's confession, a reviewing court must "exercise extreme caution" before determining that the error was harmless. Nevertheless, overwhelming evidence can render the admission of a defendant's confession harmless beyond a reasonable doubt. In the present case, the evidence of guilt was truly overwhelming. Appellant admitted at trial that he was present at the scene of the crime. He admitted at trial that he was stopped by Officer Abernethy and fled from him. That admission was further corroborated by an eyewitness and by the readout on Officer Abernethy's computer that showed the Dodge Durango's license-plate number. Three eyewitnesses placed appellant at the scene. One of those eyewitnesses identified appellant as the shooter, while another eyewitness identified appellant as leaving the scene with a gun in his hand. Gunshot residue was found on the Dodge Durango's steering wheel. Immediately after returning home from the incident, appellant shaved his head and changed his clothes — evincing his own consciousness of guilt. Appellant further evinced his consciousness of guilt by fleeing from the sheriff's deputies through his neighborhood, damaging neighbors' fences in the process. Appellant's defense to this evidence was his trial testimony that, though he was fleeing from Officer Abernethy because he did not want to be caught with a traffic violation while on parole, he fell, and some unknown assailant must have shot the officer. We conclude beyond a reasonable doubt that the jury would not have decided the issue of guilt differently if appellant's confession had been excluded. With respect to punishment, the confession had little relevance. The confession painted the shooting as something that began as an accident and ended as an impulsive response to the officer drawing his gun, but the other evidence at trial showed a brutal, execution-style murder. The evidence was overwhelming that the victim was shot in the head at close range. This conclusion was supported by Brazil's eyewitness testimony, by the autopsy, and by the recovery of a .40 caliber bullet in the ground underneath where Officer Abernethy had lain. If anything, the confession was mitigating evidence, but it conflicted with all of the other evidence of how the murder occurred. The minimizing aspect of the confession might be considered evidence of appellant's failure to take responsibility for his actions, but appellant's trial testimony — denying that he was even the shooter — displayed appellant's failure to take responsibility even more clearly. In his confession, appellant admitted to being on parole, but his prior convictions and his parole status at the time of the offense were admissible at punishment anyway. There is simply no reason to believe that the confession had any impact on the jury's punishment deliberations. Point of error one is overruled.III. EXCLUSION OF EVIDENCE
In points of error two and three, appellant complains that the trial court erred in excluding, at trial, his testimony concerning the exact statement the Spanish police officer allegedly made to him. He claims that the trial court's action deprived him of his due-process right to present a defense and violated his right under Article 38.22, § 6, to offer evidence concerning the voluntariness of his confession. He argues that the statement was not hearsay and that the trial court erred to sustain the State's hearsay objection. He also argues that he had a constitutional right to challenge the voluntariness of his confession before the jury.A. Preservation of Error
The following occurred at trial:[DEFENSE COUNSEL]: What happened when you got back to Luxor?
[APPELLANT]: They turned on Tidwell onto Sunforest, brought me around the back. I sit there maybe 10 minutes. I'm not sure. It was for a minute. They was still talking outside the cruiser. As I was sitting there waiting to see what was going to happen, or whatever, another cop, he comes and opens the door and threatens me and tells me —
[PROSECUTOR]: Judge, I object to any hearsay.
THE COURT: Sustained.
[DEFENSE COUNSEL]: Without saying what the officer told you, in other words the exact words, what was he communicating to you?
[APPELLANT]: A threat.To preserve a complaint for appellate review, the complaining party must lodge a timely complaint with the trial court that states the grounds for the ruling sought "with sufficient specificity to make the trial court aware of the complaint." We have said that "all the party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." As Professors Goode, Welborn, and Sharlot have explained: "Whichever party complains on appeal about the trial judge's action must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule in question and its precise and proper application to the evidence in question." This requirement applies also to a complaint that the trial court improperly excluded evidence. In Reyna v. State, defense counsel sought to admit evidence on the basis that it was relevant to attacking the victim's credibility. We held that defense counsel's "arguments about hearsay did not put the trial judge on notice that he was making a Confrontation Clause argument." A party who seeks to complain about the exclusion of evidence must also make an offer of proof in which "the substance of the evidence was made known to the court . . . or was apparent from the context within which the questions were asked. In the present case, defense counsel failed to preserve error because he did not communicate what he wanted to the trial court. The prosecutor's hearsay objection immediately followed appellant testifying that the officer "threatens me and tells me." By saying that the officer "threatens me and tells me," appellant seems to have been about to talk about information that was hearsay. Defense counsel may have cleared up the matter in the next question when he elicited the information that what the officer was communicating to appellant was a threat, which would suggest that none of the information was hearsay. But defense counsel did nothing at that point to reurge his complaint. Having established that appellant's testimony was that all of the officer's communications were part of a threat, defense counsel then could have asked the next question, "What did the officer say to you?" or "What was the exact wording of the threat?" Or defense counsel could have simply asked the trial court to reconsider its ruling. We will uphold a trial court's decision to exclude evidence when that decision is correct at the time of its ruling, even if later information shows that the evidence was admissible. Moreover, even if the trial court had been informed from the outset that the entire content of the officer's statement was a threat, it is arguable that defense counsel still did not let the trial court know that he wanted to introduce the exact wording of the alleged threat. The question, "What happened when you got back to Luxor?" did not necessarily require appellant to recite what a police officer may have told him. Defense counsel voiced no disagreement with the State's hearsay objection or with the trial court's act of sustaining that objection. Indeed, defense counsel subsequently admonished appellant to relate what happened "[w]ithout saying what the officer told you." In Reyna, the defense attorney at least alerted the trial court to the fact that he wanted the evidence admitted with a reason given as to why it was admissible. In the present case, defense counsel never said that he thought the evidence was admissible, much less offered a reason for its admission. The trial court may have perceived that it was simply cutting off narrative testimony that had strayed beyond the intent of defense counsel's question into inadmissible territory. Even if the colloquy were sufficient to preserve a complaint regarding the hearsay rule, it was not sufficient to preserve any constitutional complaints. Assuming that the defense impliedly resisted the State's hearsay objection, the defense would have preserved only a complaint that the evidence was not hearsay.