Coleman, Thomas Wayne v. State

Affirmed and Memorandum Opinion filed June 15, 2004 Affirmed and Memorandum Opinion filed June 15, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00917-CR ____________ THOMAS WAYNE COLEMAN, Appellant V. THE STATE OF TEXAS, Appellee ___________________________________________________ On Appeal from the 338th District Court Harris County, Texas Trial Court Cause No. 874,471 ___________________________________________________ M E M O R A N D U M   O P I N I O N Appellant entered a plea of not guilty to capital murder. He was convicted and the jury assessed punishment at life in prison. In a single issue, appellant contends the trial court erred in failing to instruct the jury on the voluntariness of appellant=s confession. We affirm. I. Factual Background On April 10, 2001, appellant burglarized Holly Waller=s home and stabbed her to death. Two days later, appellant was arrested on an outstanding warrant and questioned at the police station. Officer C. P. Abbandondolo with the Houston Police Department testified that he first came into contact with appellant after he had been arrested and placed in an interview room. Abbandondolo read appellant his Miranda warnings and explained appellant=s rights to him. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966); Tex. Code Crim. Proc. Ann. art. 38.22, ' 2(a) (Vernon Supp. 2004). Appellant indicated he understood his rights and was willing to talk with Abbandondolo. Abbandondolo asked appellant if he needed to use the restroom or if he wanted something to drink. Appellant said he wanted something to drink and was given a soda. Abbandondolo interviewed appellant for approximately two hours during which time appellant denied any involvement in the burglary and murder. After the initial two hour period, appellant asked to use the restroom. While appellant was in the restroom, Abbandondolo spoke with Todd Miller, the Houston Police Department officer who arrested appellant. Abbandondolo explained his lack of progress, and Miller offered to continue the interview. Before he began to question appellant, Miller also read appellant his rights and ensured that appellant understood them. After approximately two additional hours, appellant admitted his involvement in the burglary and murder and expressed his willingness to give an audio-taped statement. Miller asked appellant if he wanted anything to eat or drink or if he needed to use the restroom. Appellant said he needed to use the restroom. Upon returning to the interview and before taking the audio-taped statement, Miller again read appellant his rights. In his statement, appellant said he had thrown some of Waller=s jewelry into the front yard of the house. Miller and several other officers took appellant to the scene of the crime to look for the jewelry. Before leaving the police station, appellant said he was hungry, so Miller bought appellant a hamburger. The officers were unable to locate the jewelry and proceeded to a garbage dumpster where appellant said he had discarded his clothes. The dumpster appeared to have been emptied prior to their search. Miller then took appellant before a magistrate who read appellant his Miranda warnings. Appellant then made a second tape-recorded statement in which he confessed to the burglary and murder. In the second statement, appellant told Miller that he had taken money from a book in the complainant=s home. Prior to appellant=s admission, no one knew the money had been taken. Both statements were admitted into evidence over appellant=s objection. II. Analysis In a single issue, appellant argues the trial court erred in failing to instruct the jury on the voluntariness of his confession because there was some evidence that he was mentally retarded. A. Preservation of Error As a preliminary matter, the State contends appellant has not preserved error. At the charge conference, appellant responded to the judge=s inquiry regarding any objections to the charge by requesting an instruction Aregarding the voluntariness of the statement given by [appellant] to the Houston police officers based upon the cross-examination and testimony given by those officers.@[1] The trial court denied appellant=s oral request stating, Athere has not been a contested issue of fact, at least with regard to the voluntariness of the statement.@ The trial court permitted appellant to return the next day with a proposed instruction and case law that would support the instruction. The next morning, the trial judge reminded appellant that he had objected to the charge the previous day and asked if either side had anything further. Both the defense and the State responded, Anothing.@ To preserve error related to the jury charge there must be an objection or a requested charge. See Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996); Arana v. State, 1 S.W.3d 824, 826 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). An objection or request for a special instruction must be made in writing or Adictated to the court reporter in the presence of the court and the state=s counsel, before the reading of the court=s charge to the jury.@ Tex. Code Crim. Proc. Ann. arts. 36.14, 36.15 (Vernon Supp. 2004). To preserve error on an objection an adverse ruling must be obtained. Arana, 1 S.W.3d at 826. Here, appellant distinctly specified his objection to the charge by requesting an instruction on voluntariness and obtained an adverse ruling. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2004) (defendant must distinctly specify each ground of objection to the charge); see also Reize v. State, No. 14-98-00709-CR, 1999 WL 1123032, at *2 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d) (not designated for publication) (holding requested instruction that was denied by court sufficient to preserve error as an objection) (citing Jones v. State, 962 S.W.2d 96, 98B99 (Tex. App.CHouston [1st Dist.] 1997), aff=d, 984 S.W.2d 254 (Tex. Crim. App. 1998)). The objection does not need to be in perfect form; it need only call the trial court=s attention to the omission in the charge. Benge v. State, 94 S.W.3d 31, 34 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Because appellant distinctly specified his objection and obtained an adverse ruling, we find appellant preserved error and consider the merits of his issue. B. Denial of requested instruction Appellant contends the issue of voluntariness was raised by the following cross-examination: Q. [by defense counsel]: During the course of the case, did you learn and find that Mr. Coleman is retarded? A. [by Officer Miller]: I=m sorry. Q. Have you learned that, since this case, that Mr. Coleman is retarded? A. At some level, yes. Q. Did you B prior to, I guess, conducting any kind of discussions with Mr. Coleman, did you have him examined or have someone else other than yourself or Officer Abby[[2]] talk with Mr. Coleman to determine his ability to understand fully the rights that you and Officer Abby were going to give to him and to make sure that independently someone could determine, yes, he=s going to voluntarily give up his rights? Did you do anything like that? A. No. No. Appellant contends the cross-examination of Officer Miller raised the issue of the voluntariness of appellant=s confession because the cross-examination revealed appellant is mentally retarded. When the issue of the voluntariness of the confession is raised by the evidence, the trial judge shall appropriately instruct the jury, generally, on the law pertaining to such statement. See Tex. Code Crim. Proc. Ann. art. 38.22 ' 7 (Vernon Supp. 2004). The issue of voluntariness is raised only after some evidence is presented that the statement was not voluntary. Miniel v. State, 831 S.W.2d 310, 316 (Tex. Crim. App. 1992). Evidence of mental retardation and mental impairment is a factor to be considered by the court in determining from the totality of the circumstances whether the accused voluntarily and knowingly waived his rights prior to confessing. Bizzarri v. State, 492 S.W.2d 944, 946 (Tex. Crim. App. 1973); Cornealius v. State, 870 S.W.2d 169, 175 (Tex. App.CHouston [14th Dist.] 1994) aff=d, 900 S.W.2d 731 (Tex. Crim. App. 1995). The question is whether the accused=s mental impairment is so severe that he is incapable of understanding the meaning and effect of his confession. Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970). Here, although Miller testified during cross-examination regarding appellant=s mental capacity,[3] appellant presented no evidence that the alleged diminution in his mental capacity was causally related to his confession. Nor did appellant present testimony at trial on the issue of voluntariness. There was no testimony as to the severity of appellant=s mental retardation. Moreover, there was no implication of police coercion. A confession will not be considered involuntary absent police coercion Acausally related to the confession.@ Walker v. State, 842 S.W.2d 301, 303 (Tex. App.CTyler 1992, no pet.), citing Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520, 93 L. Ed.2d 473 (1986). A defendant=s mental condition, alone and apart from its relation to official coercion, will not require a conclusion of involuntariness. Colorado v. Connelly, 479 U.S. at 164, 107 S. Ct. at 520; Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995). There was no evidence that interrogating officers coerced appellant into making a statement. Appellant was read his statutory warnings four times, and each time indicated he understood his rights and that he was willing to talk with the officers. Appellant accepted offers of food, drink, and restroom breaks. On re-direct examination, Miller testified that he would never take advantage of someone he knew to be mentally retarded to coerce him to confess. There was no testimony that appellant was coerced or that his alleged diminished mental capacity was related to or impacted his confession. Because the evidence did not raise the issue of the voluntariness of appellant=s confession, the trial court did not err in refusing the requested instruction. See Miniel, 831 S.W.2d at 316. Appellant=s sole issue is overruled. The judgment of the trial court is affirmed. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed June 15, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant did not raise the issue of his alleged mental retardation as impacting the voluntariness of his confession at any time during the trial. In fact, at the pre-trial hearing on appellant=s motion to suppress his confession based on involuntariness, appellant argued he was coerced to confess due to Abbandondolo=s threats that he would charge him with additional crimes unless he started talking about his involvement in the Waller case and Miller=s promise that he would only be sentenced to five years on a burglary charge. [2] AOfficer Abby@ is in reference to Officer Abbandondolo. [3] Appellant did not offer any evidence of diminished mental capacity through the testimony of any expert witness. In fact, according to a competency evaluation conducted by a clinical and forensic psychologist prior to trial, during the evaluation appellant Afaked both intellectual impairments and psychiatric symptoms.@ Furthermore, a review of previous evaluations of appellant showed that his mental status was described as completely normal and also that [appellant] reported he had completed ten years of education and that he could read and write.