finding no custody when witness who was not suspect was contacted by police, voluntarily went to police station to make a statement, and was immediately read warnings when he made statement that caused police to suspect him
How later courts described this case
- finding no custody when witness who was not suspect was contacted by police, voluntarily went to police station to make a statement, and was immediately read warnings when he made statement that caused police to suspect him
- indicating that when the appellant made a statement in which he did not admit culpability for the murder but in which he provided information that tied him to evidence at the murder scene, officers had probable cause to arrest him
- considering whether the appellant was in custody during fact-finding police interview and noting that “appellant may have been a focus of the investigation, but he was certainly not the focus of the investigation”
- noting fact that the appellant had asked officers for a ride to the police station for interview as factor in concluding appellant had not been in custody
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
dissenting.
I respectfully dissent to the majority’s holding in this death penalty case that the error of the trial court, in admitting into evidence Quiroz’s testimony, was harmless beyond a reasonable doubt. I believe that the error, as to the punishment stage of appellant’s trial, was not harmless beyond a reasonable doubt.
Under this Court’s past decisions, before error can be deemed harmless, it must be shown that there is not a reasonable possibility that the error contributed to the defendant’s conviction or to the punishment that was assessed. The test to determine whether the error is harmless is not whether a conviction could have been had without the erroneously admitted evidence or testimony, or that the punishment that was assessed could not have been assessed without the erroneously admitted evidence or testimony, but, instead, is whether there is a reasonable possibility that the erroneously admitted evidence or testimony might have contributed either to the finding of *46 guilt or the punishment that was assessed. See, for example, Garrett v. State, 632 S.W.2d 350, 354 (Tex.Cr.App.1982).
Art. 37.071, Section (c), V.A.C.C.P., expressly provides that where the jury is called upon to answer special issue number 2, see Art. 37.071, Section (b)(2), supra, in the affirmative, the State must prove such issue beyond a reasonable doubt. Special issue number 2 reads as follows: Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. In this instance, the jury answered the question in the affirmative. Thus, the question that this Court must decide is whether there is a reasonable possibility that the erroneously admitted testimony of Quiroz affected the jury’s decision to answer special issue number 2 in the affirmative.
I ask the majority: How can what it has determined to be error be harmless beyond a reasonable doubt as to the punishment stage of this capital murder case? More specifically, how can such error be harmless beyond a reasonable doubt as to the jury’s decision to answer in the affirmative the second or the probability special issue, that was required to be answered by the jury beyond a reasonable doubt before the punishment of death could be assessed the appellant?
This Court in Roney v. State, 632 S.W.2d 598 (Tex.Cr.App.1982), after finding that the evidence was insufficient to sustain the jury’s affirmative answer to the probability question, reformed the defendant’s sentence to life imprisonment. In so holding, this Court stated the following: “To hold that the facts of this offense, standing alone, would support such a verdict, would mean that virtually every murder in the course of a robbery would warrant the death penalty. Such construction would destroy the purpose of the punishment stage in capital murder cases, which is to provide a reasonable and controlled decision on whether the death penalty should be imposed, and to guard against its capricious and arbitrary imposition.” (Citations Omitted.) (603).
The majority does not refer us in its opinion to any other evidence or testimony that might reflect or be considered relevant to the issue of future violent conduct by appellant, and I am unable to find any such evidence or testimony in the record on appeal.
In Wallace v. State, 618 S.W.2d 67 (Tex.Cr.App.1981), this Court also held that the evidence was insufficient to sustain the jury’s affirmative answer to special issue number 2. Before reforming the death sentence that was assessed in that cause to life imprisonment, this Court stated the following: “Specifically, there was no evidence of prior convictions, no prior acts of violence, no character evidence, no psychiatric evidence. Although the circumstances of the murder may be sufficient to support a death penalty ..., this is not such a case ...” (69). In this instance, there is also no evidence of prior convictions, prior acts of violence, character evidence, or psychiatric evidence that might relate to the appellant.
Without the erroneously admitted testimony of Quiroz, that reflects a violently conducted escape from the El Paso County Jail, I believe that there is either a reasonable doubt that the evidence is insufficient to sustain the jury’s affirmative answer to the second special issue, or that there is a reasonable possibility that the erroneously admitted testimony contributed to the decision of the jury to answer special issue number 2 in the affirmative.
Thus, the error was harmful, not harmless. The majority errs in holding that the error was harmless.
I respectfully dissent to its holding.