IN THE COURT OF CRIMINAL APPEALS OF TEXAS
SON VU KHAI
THE STATE OF TEXAS
Delivered: April 2, 2003
ON DIRECT APPEAL
FROM HARRIS COUNTY
Johnson, J., delivered the unanimous
opinion of the court.
O P I N I O N
On December 14, 2000, appellant was convicted of capital murder
for murdering two people during the same criminal transaction,
alleged to have occurred on or about October 25, 1997. Tex.
Penal Code Ann. § 19.03(a). Pursuant to the jury's answers to
the special issues set forth in Texas Code of Criminal Procedure
Article 37.071, sections 2(b) and 2(e), the trial judge
sentenced appellant to death. Art. 37.071 § 2(g).
appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant
raises five points of error. We affirm.
first point of error, appellant claims that the trial court
committed reversible error by failing to make findings of fact
and conclusions of law regarding the voluntariness of his
statement pursuant to Article 38.22, section 6.
December 3, 2002, a supplemental clerk's record containing the
required findings and conclusions was filed with this Court.
Appellant's first point of error is dismissed as moot. Nenno
v. State, 970 S.W.2d 549, 552 (Tex. Crim. App. 1998),
overruled in part on other grounds, Terrazas v. State,
4 S.W.3d 720, 727 (Tex. Crim. App. 1999).
In appellant's second point of error, he contends that the trial
court committed reversible error by admitting appellant's
custodial statements in violation of the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution; Article
1, section 10 of the Texas Constitution; and Texas Code of
Criminal Procedure Articles 1.05, 14.01-06, 38.22, and 38.23.
Appellant maintains that his confession was the result of an
At the hearing on appellant's motion to suppress his custodial
statements, the state presented evidence that on October 26,
1997, appellant was riding in a car with Donnie Tran (Donnie)
and two others. Police stopped the car because they had a
warrant for Donnie's arrest for the offense of murder.
When Donnie's car came to a stop, the officers were not
immediately able to determine which passenger was Donnie.
Therefore, all of the occupants of the car were handcuffed as
they exited the vehicle. As soon as Donnie was identified, the
officers removed the handcuffs from appellant and the other
Todd Miller testified that after removing appellant's handcuffs,
he explained that Donnie was being arrested for murder. Miller
then told appellant that he was not under arrest and was free to
leave if he so desired. However, Miller asked if appellant would
accompany him to the police station to discuss the murder for
which Donnie was arrested and the instant capital murder.
Appellant agreed and went with Miller to the police station.
Miller and appellant arrived at the police station, Miller took
appellant to an interview room and asked if he wanted anything
to drink or if he needed to use the restroom. Appellant replied
that he did not. Miller reiterated that appellant was not under
arrest and asked appellant if he understood that to be the case.
Appellant replied that he did.
accordance with Article 38.22, Miller read appellant his rights.
When he finished reading appellant his rights, Miller asked
appellant if he understood his rights. Appellant replied that he
did. Appellant then agreed to waive his rights and speak to
interview began at approximately 12:30 a.m. on October 27, 1997.
Despite the late hour, appellant was well rested. He related to
Miller that he slept until 6:00 p.m. the day before. Miller
questioned appellant about the murder Donnie was arrested for
and also informed appellant that he had information that
appellant was involved in the two murders in this case. Shortly
after the interview began, appellant asked to use the restroom.
Miller showed appellant where the bathroom was, and appellant
left the interview room. Appellant was not escorted by police
officers. Upon his return, appellant confessed to being involved
in the two murders in this case.
appellant confessed, Miller placed him under arrest. Miller
asked appellant if he would give a written or recorded statement.
Appellant agreed to give a statement and asked that it be
written. Miller then read appellant his Article 38.22 warnings
again. Miller asked appellant if he still understood his rights,
and appellant replied that he did.
then dictated his statement while Miller typed it. After
appellant finished dictating, Miller gave appellant a copy and
asked him to read it to make sure it was accurate. Appellant
indicated that it was.
appellant signed his statement, Miller left the interview room
and, following Houston Police Department procedure, asked
Officers Motard and Hale to interview appellant and present him
with a questionnaire regarding the voluntariness of his
statement without Miller present. Motard and Hale entered the
interview room and, in response to their questions, appellant
answered that he was Son Tran, that the statement was his, that
he read the entire statement, that he was not promised anything
in exchange for his statement, that no one forced him to make
the statement, that he was not physically abused, that Miller
read him his rights and he understood them, that he agreed to
give up his rights, that he made his statement of his own free
will, that he did not want to make any corrections, that he did
not have any questions, and that he could read.
officers then asked appellant to read an oral waiver. Appellant
agreed and acknowledged orally that "prior to and during the
making of this statement I intelligently, voluntarily waived or
gave up the rights set out above and gave the following
voluntary statement." Appellant initialed the questionnaire and
signed his written statement. He was then transported to the
Harris County Jail.
written statement, appellant related that, although he and two
others were involved in luring the victims to the location of
their deaths, it was Donnie who actually shot the victims.
Miller relayed this information to the officers who were
interviewing Donnie and the other passengers of the car. After
comparing notes, Miller discovered a discrepancy between
appellant's version of events and the version of one of his
effort to reconcile the conflicting statements, Miller had
appellant brought back from the jail to an interview room later
that day. He read appellant his Article 38.22 rights one more
time and asked appellant if he understood his rights. Appellant
replied that he did and agreed to speak with Miller. Miller then
presented appellant with the statement of his accomplice, which
identified appellant as the actual shooter in this case.
with these statements, appellant said that he knew that Miller
would find out eventually. Appellant then confessed that he was,
in fact, the actual shooter in this case. Miller asked appellant
to make a corrected written statement, which appellant did.
Miller then followed the same procedure that he had employed
with appellant's first statement to verify that this second,
corrected statement was given voluntarily. Officers Waters and
Abbondandolo read appellant the questionnaire regarding the
voluntariness of his statement. Appellant again initialed the
questionnaire, acknowledged his statement was given voluntarily,
and signed his corrected statement.
asserts that his confession resulted from an illegal arrest, and
that therefore, it was inadmissible as the fruit of such illegal
arrest. Appellant discusses factors which can demonstrate a
break in the causal chain between an illegal arrest and a
subsequent statement and seems to presume that he was arrested
at the same time that Donnie was arrested.
acknowledges that Officer Miller testified that Tran was not
under arrest and was free to leave, but insists that he was
never given any opportunity to do so at the scene because he was
placed in handcuffs in the back seat of a police vehicle and
whisked away before ever being told that he was not under arrest.
asserts that, in spite of Officer Miller testifying that he was
free to leave and offering him drinks and the ability to use the
bathroom, such were simply offers indicating that he was not
free to leave, but could simply get a drink and use the bathroom
before talking to the police and could expect to be with police
for some time.
reflects that, at the suppression hearing, Officer Miller
testified that, after it was determined which of the four
occupants of the vehicle was Donnie, the handcuffs were removed
from all of the others, including appellant. Officer Miller also
testified that at that point no weapons were drawn and that he
explained to appellant that he was not under arrest, but rather
that Donnie was under arrest.
to Miller, appellant agreed to go to the police station and talk
about what he knew about the murder cases. Miller also testified
that appellant was not handcuffed during either interview.
Officer Ladd, who was working with Officer Miller at the time of
Donnie's arrest, also testified at the suppression hearing and
corroborated Miller's testimony about appellant being
unhandcuffed at the scene, being told that he was not under
arrest, and being asked to accompany them to the homicide office
to talk about what he knew about the case.
and another passenger who was in the car when Donnie was
arrested testified at the suppression hearing. That passenger
indicated that he believed that he was under arrest, that he did
not have any choice about getting in the police car. He also
testified that he was subsequently transported to a police
station and only after he was taken inside the building were the
testified that he was placed in an unmarked police vehicle and
driven off with three officers while he was still handcuffed,
without any explanation of his destination or the reason for the
also testified that he did not believe he had any choice other
than to comply with the officers' instructions and indicated
that no one told him whether he was under arrest or not. He said
that he knew where they were going only when he read "Police
Station" on the building. After they entered and he was taken
upstairs, one of the officers pointed out a sign on the wall
that read "homicide."
testified that only after he was placed in a little interview
room was he uncuffed. When asked if there was ever a time when
it was explained to him that he was not under arrest, appellant
replied, "No, sir. They told me I was under arrest in the
beginning." He reiterated that he was not told that he was not
under arrest or was free to go, nor that they ever asked if he
would like to accompany them to answer some questions about
Donnie's case. He testified that, right when he was placed in
the interview room, he was told that he was arrested for murder
and that was the reason he was down there.
court entered findings of fact and conclusions of law that the
officers who testified at the suppression hearing, including
Miller and Ladd, were "truthful and credible" and that
appellant's oral statement and two written statements, "were
made voluntarily, knowingly, and intelligently."
court also specifically found that, when Donnie was arrested: 1)
Officer Miller explained to appellant that he was not under
arrest and was free to leave if he so desired; 2) Officer Miller
asked appellant if he would be willing to go with police to
their offices to discuss his knowledge of the offense for which
Donnie had been arrested; and 3) that appellant agreed to
accompany them to their offices. The trial court further found
that no officer threatened, coerced, or compelled appellant to
go to the police station and that his decision to do so was
solely the product of his free will. The trial court's
conclusions of law included that appellant was not placed under
arrest at the scene of the traffic stop and was not under arrest
until after his first oral confession, when Officer Miller told
him he was under arrest.
motion to suppress hearing, the trial court is the sole trier of
fact and judge of witness credibility and may believe or
disbelieve all or part of a witness's testimony. State v.
Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). A trial
court's ruling on a suppression motion lies within the sound
discretion of that court. Villarreal v. State, 935 S.W.2d
134, 138 (Tex. Crim. App. 1996).
a trial court's ruling on a motion to suppress for abuse of
discretion, giving almost total deference to the trial court's
determination of historical facts, but review search and seizure
law de novo. Balentine v. State, 71 S.W.3d
763, 768 (Tex. Crim. App. 2002); see also, Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)(we
review mixed questions of law and fact de novo if the
resolution of the ultimate questions does not turn on an
evaluation of credibility and demeanor). As in all cases
involving a determination of whether a Fourth Amendment "seizure"
has occurred, we assess the encounter by looking at the totality
of the circumstances. Hunter v. State, 955 S.W.2d 102,
204 (Tex. Crim. App. 1997).
15.22 states, "A person is arrested when he has been actually
placed under restraint or taken into custody by an officer ...."
"A person is in 'custody' only if, under the circumstances, a
reasonable person would believe that his freedom of movement was
restrained to the degree associated with a formal arrest."
Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App.
1996)(citing Stansbury v. California, 511 U.S. 318
circumstances show that a person voluntarily accompanies police
in the investigation of a crime and knew, or should have known,
that the police might suspect that he is implicated in the
offense, and he is not being forced, coerced or threatened, the
act is voluntary and the person is not then in custody, even if
he is acting upon the invitation, urging, or request of police.
Chambers v. State, 866 S.W.2d 9, 19 (Tex. Crim. App.
1993), cert. denied, 511 U.S. 1100 (1994).
reviewing a trial court's ruling on a suppression motion, we
must view the record and all reasonable inferences therefrom in
the light most favorable to the ruling, and sustain the ruling
if it is reasonably supported by the record and is correct under
any theory of law applicable to the case. Villarreal,
supra, 935 S.W.2d at 138.
supports the trial court's finding that appellant voluntarily
agreed to accompany police to discuss the offense for which
Donnie had been arrested and its conclusion that appellant was
not under arrest at the scene of the traffic stop. Because the
totality of the circumstances reflected by the record supports
the trial court's conclusions, we hold the trial court did not
abuse its discretion in overruling appellant's motion to
suppress and in admitting his statements into evidence.
Appellant's second point of error is overruled.
In his third and fourth points of error, appellant alleges that
the trial court erred in failing to compel the testimony of his
co-defendants, Truc Hoang and Donnie Tran, at the motion to
suppress hearing and at the trial. When the defense called Truc
and Donnie to testify at the suppression hearing, and again at
trial, they both asserted their Fifth Amendment privilege
against self-incrimination. The trial court ruled that Truc and
Donnie could not be compelled to testify. Appellant did not
object to the trial court's ruling and did not make an offer of
proof as to what Truc and Donnie would have testified to, had
they been so compelled.
Appellant has not, therefore, preserved error for our review.
Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.1; Ibarra v.
State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert.
denied, 531 U.S. 828 (2000)(even constitutional error may
be waived on appeal if not preserved by objection); Green v.
State, 840 S.W.2d 394, 407 (Tex. Crim. App. 1992), cert.
denied, 507 U.S. 1020 (1993)(when claiming error in the
trial court's acceptance of a co-defendant's assertion of a
Fifth Amendment claim not to testify, absent an offer of proof,
nothing is preserved for review). Appellant's third and fourth
points of error are overruled.
fifth point of error, appellant asserts reversible error by the
trial court "in failing to require the state to give notice of
'intent to use' extraneous offenses or misconduct of the
appellant" under Tex. R. Evid. 404(b). Appellant does not
specify any particular extraneous offense or misconduct evidence
that was admitted without notice, but rather claims reversible
error because the state failed to provide the requisite notice.
morning that trial on the merits began, just after appellant was
arraigned outside the presence of the jury, appellant argued
that, because he had received no notice, no evidence of any
prior arrests or extraneous bad acts and two other killings
should be admitted. The state responded that the other killings
were part and parcel of this capital murder, which occurred
during a two-week crime spree, and that they were
same-transaction contextual evidence.
noted that defense counsel had made numerous trips to the
state's office to review the materials. The state also argued
that actual notice had been provided in the form of the
confession and the complete offense report, which laid out the
other two killings, and that these offenses are so intertwined
that it would be virtually impossible for the police officers to
testify without reference to the two extraneous killings. The
trial court stated that it would allow the state to introduce
evidence of motive, preparation, and plan in regards to the
extraneous killings in a limited capacity, and that it believed
that appellant had received notice.
court did say that it would entertain objections at trial if
appellant thought the state was going far outside of Rule 404(b)
and that it would rule on those objections at that time. The
trial court reiterated that appellant needed to object so that
the court would know what he was complaining about, as it was
possible that some evidence could help him and he might then
choose not to complain.
punishment phase began, appellant pointed out that, several
months earlier, the trial court had granted his motion for
discovery of extraneous offenses and ordered the state to
provide notice of any extraneous offenses it reasonably expected
to utilize as part of its case in chief at either
guilt/innocence or punishment.
again indicated that the extraneous offenses would involve the
other killings, which were described in appellant's own
confession, and that appellant had been given a copy thereof.
stated that appellant's counsel had, on several occasions, come
and reviewed the entire state's file, which was open, remained
open, and included the entire offense report, autopsy reports,
photographs, and everything else related to the extraneous
killings. Appellant acknowledged that surprise was not the
question, but rather the question was notice of the state's
intent. The trial court overruled appellant's objection.
Appellant's brief does not cite any specific extraneous offense
evidence about which he did not receive notice. We shall
therefore limit our discussion to his complaint about the lack
of notice with regard only to the evidence which was discussed
when he objected at trial, i.e. the two extraneous killings.
404(b) provides that evidence of other crimes, wrongs or acts
may be admissible for non-character conformity purposes provided
that, upon timely request by the defendant, reasonable notice of
the state's intent to introduce such evidence in the state's
case-in-chief is given in advance of trial. Rule 404(b) excepts
evidence arising in the same transaction.
37.071, which sets out the punishment-phase procedures after
conviction of capital murder, "contains no notice provision with
regard to the introduction of [evidence of] unadjudicated,
extraneous offenses." Hughes v. State, 24 S.W.3d 833,
842 (Tex. Crim. App.), cert. denied, 531 U.S. 980
(2000). Thus, appellant's complaint about not receiving notice
with regard to the punishment phase has no merit.
regard to appellant's complaints about not receiving notice of
the state's intent to use evidence of the two extraneous
killings at the guilt/innocence phase, certainly an "open file"
does not provide reasonable notice of intent to introduce
evidence in the state's case-in-chief. Buchanan v. State,
911 S.W.2d 1, 15 (Tex. Crim. App. 1995). While "open file" is
not sufficient notice, in Hayden v. State, 66 S.W.3d
269, 271-72 (Tex. Crim. App. 2001), we held that delivery to the
defense of witness statements detailing extraneous offenses can
satisfy the notice requirements of Rule 404(b).
out that the provision's purpose is to prevent surprise. Id.
at 272. In Hayden, we also noted that the defendant did
not dispute the state's claim that he had actual notice, and
that reasonable notice is implicit in the delivery if it follows
upon the heels of the timely request for notice. Id. We
also pointed out that, while the record in Hayden did
not reflect how soon after its receipt of the request for notice
the state responded with its delivery of the witness statements,
the defendant should have communicated to the court that he had
not made the connection between his request for notice and the
state's delivery of witness statements. Id.
reflects that appellant's Motion for Discovery of Extraneous
Offenses, which requested that the state provide "notice of any
extraneous offenses which the [s]tate may seek to introduce as
evidence," was filed on August 15, 2000, and was "granted by
agreement" August 24, 2000.
discussion about the extraneous offense notice on the morning
that trial on the merits began occurred on December 11, 2000.
Appellant did not dispute the state's assertions that actual
notice had been provided in the form of the confession and the
complete offense report which laid out the other two killings.
above, during the discussions before the punishment phase began,
appellant acknowledged that surprise was not the issue.
Appellant also does not dispute the state's claim that
appellant's statement, which included detailed descriptions of
his involvement in the two extraneous killings, was entered into
evidence at guilt/innocence in a redacted form, with those
references to his involvement in the extraneous killings being
reflects that the statement was entered into evidence at guilt/innocence
in such redacted form, and the trial court specifically stated
that some of the objections thereto had been sustained and some
were overruled, and that it had made rulings ordering that
certain information be deleted from the statement because it had
made findings that certain things in the statement were not
relevant and not admissible. The unredacted statement, which
included the details of the extraneous killings, was not
admitted into evidence until the punishment phase.
the record, we cannnot conclude that the trial court abused its
discretion in concluding that appellant was provided with
reasonable notice of the state's intent to use evidence of the
two extraneous killings at guilt/innocence. Appellant's fifth
point of error is overruled.
We affirm the
judgment of the trial court.
1. Unless otherwise
indicated, all future references to articles refer to the Texas
Code of Criminal Procedure.
We observe that appellant's pretrial motion to suppress did not
explicitly seek to suppress his confession as the fruit of an
illegal arrest, but rather focused on claims that the confession
was involuntary or coerced, and that he was deprived of his
right to counsel and did not waive such right. Appellant's
motion did state that, at the time he confessed, he was under
arrest or was so substantially deprived of his constitutional
liberties that, under the surrounding circumstances, his
detention constituted an arrest. In light of this assertion, the
severity of the sentence, and in the interests of justice, we
shall address the merits of appellant's claim on appeal. See,
e.g., Burks v.
State, 876 S.W.2d 877, 908 (Tex. Crim. App. 1994),
cert. denied, 513 U.S. 1114 (1995); Vuong v. State,
830 S.W.2d 929, 936 (Tex. Crim. App.), cert. denied,
506 U.S. 997 (1992).
3. Donnie Tran was
arrested for a murder dubbed by police as the "Rose Club killing,"
which took place just days before the two victims in this case
were killed. The Rose Club killing is related to the present
case because the victims in this case assisted Donnie and
appellant in killing the victim at the Rose Club. The two
victims in this case were shown to have been killed because
Donnie and appellant were concerned they would admit to the Rose
Club killing, if questioned by police.
4. The record reflects
that, at the suppression hearing, appellant called the two
witnesses to testify and they each stated that they would like
to exercise their Fifth Amendment right not to give testimony at
the hearing. After Donnie was questioned by the trial court and
invoked his right not to testify, appellant simply stated that
"I think he has the right not to incriminate himself ... I'm not
sure he has the right not to testify." He did not object to the
trial court's ruling or argue in contravention of that ruling
with regard to either witness. At trial, after the state rested,
appellant stated that he wanted to put the two co-defendants on
the witness stand "and have them reiterate what they said."
Outside the presence of the jury, the two witnesses again
indicated that they wanted to invoke their Fifth Amendment right
not to testify. Again, appellant failed to object to or argue
against the trial court's ruling.
5. We also observe that
this Court has held that a person's constitutional privilege
against self-incrimination overrides and is superior to a
defendant's constitutional right to compulsory process of
witnesses. Bridge v. State, 726 S.W.2d 558, 567 (Tex.
Crim. App. 1986); Ellis v. State, 683 S.W.2d 379, 383 (Tex.
Crim. App. 1984). We have also held that a trial court cannot
compel a witness to answer questions unless it is perfectly
clear, from a careful consideration of all the circumstances in
the case, that the witness is mistaken in asserting the
privilege, and that the answer cannot possibly tend to
incriminate the witness. Grayson v. State, 684 S.W.2d
691, 696 (Tex. Crim. App. 1984).