Appeal from 70th District Court of Ector County, Texas (TC# A-24,044)
Before Panel No. 1 Larsen, McClure, and Chew, JJ.
This is an appeal from a conviction for murder for remuneration. A jury found the appellant, Joshua John Humphries, guilty. Because the State did not seek the death penalty in this capital murder case, Humphries was automatically sentenced to life imprisonment in the Texas Department of Criminal Justice--Institutional Division. We affirm.
This case arises from the murder of Rachel Juanita Green. According to Humphries' statement, he and four others, including Jason Trent and Lincoln Keith, obtained a gun, got in a single car, and went to Green's apartment at approximately 12 a.m. on October 18, 1994. On the way, the group picked up Melanie Green, Green's granddaughter. According to other witness testimony, Humphries told Keith and others that Melanie Green would pay $400 to anyone who would kill her grandmother. Humphries directed the group to Green's apartment and told the driver where to park. Upon arrival, Humphries went up to the apartment to be sure Green was home and asleep. He verified that Green was asleep and reported back to Keith and the others in the car that they should go ahead and enter the apartment. Once inside the apartment where Green was sleeping, Humphries pointed out Green's bedroom to Keith. Humphries opened Green's door for Keith, and retreated to the bathroom while Keith entered the bedroom and shot Green three times. When Keith wanted to be sure Green was dead, Humphries helped Keith find the light switch so he could see. In order to help make the killing look like a robbery, Humphries took two rifles from the bedroom closet, while Keith found Green's purse. After finding a large sum of money in the purse, Keith kept the majority of the cash and shared "a couple of hundred" with each of the others, including Humphries. Humphries and the others felt that this was fair since Keith had pulled the trigger. Humphries admitted that he originally intended to poison Green himself, but Keith convinced him that shooting her would be better. After killing Green, the group left and went to get food from Taco Bell.
ABATEMENT FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW
Humphries' first issue requested an abatement and remand to the trial court for written findings of fact and Conclusions of law on Humphries' motion to suppress his recorded statement pursuant to Texas Code of Criminal Procedure Article 38.22, Section 6. *fn1 On September 18, 1998, this court abated the appeal and remanded the issue to the trial court. The trial court entered its findings of fact and Conclusions of law on October 19, 1998. Accordingly, we now proceed with the merits of the appeal.
VOLUNTARINESS OF STATEMENT
In his second and third issues, Humphries contends that his tape-recorded statement was rendered involuntary pursuant to the Texas and United States Constitutions by the interrogating officers' promise to make Humphries a witness in the case. Humphries does not identify which statements he contends constituted the promises. Humphries' transcribed statement reveals the following exchange between Humphries and Investigator B.J. White:
"White: Okay. Do you want to go to jail for someone that's within that seven (persons who lived at Humphries' apartment and were suspected of the murder)?"
"Humphries: I'm not willin' to go to jail for anybody."
"White: That's good. Good step. Good decision, because . . . a party to a crime can get just as much time as the one who did it. And that's knowledge. You know. A person that comes forward, though, and gives the information and doesn't conceal it, is not part of a crime. (inaudible) . . . witness. If you have some knowledge of this, it's your decision to be a party to the crime or be a witness. Witnesses don't go to jail. You're sittin' on important information. Now you told me that you didn't do it. So, if you didn't do it, then you're a witness. (inaudible) You don't know anything about this? You can pass the polygraph? . . . (pause). . . . Okay. Who within your group do I need to talk to?"
Prior to White's statement, Humphries had insisted that he had nothing to do with the murder, had not left his apartment on the night of the murder, and did not know who committed the murder. After he changed his story and admitted that he was present when the murder took place, Humphries inquired at several different times as follows: "I'm a witness, right? "; "if I understand ya'll right, I'm just a witness"; and "You told me I was a witness and that witnesses don't go to jail in this state. That's what I was." Each time the officers neither confirmed nor denied that Humphries was "only" a witness, nor did they specifically encourage Humphries to continue talking, but Humphries continued giving information anyway. At one point near the end of the interview, Officer White responded to one of Humphries' inquiries, "No, no promises, no guarantees." Nevertheless, Humphries did not ask to stop the interview nor did he request counsel.
A statement induced by a promise of some benefit to a defendant, which promise is positive, made or sanctioned by one in authority, and likely to influence the defendant to speak untruthfully is involuntary. *fn2 The rationale for this rule is the inherent unreliability of a confession if the influence applied was such as to make the defendant believe his condition would be bettered by making a confession, true or false. *fn3 In this case, there was never a direct, positive promise that Humphries would be a witness instead of a defendant in the murder case. Rather, the officers told Humphries that if it were true that Humphries was not involved in the murder, but he had information about the murder, then he was simply a witness and would not go to jail for giving information. This was not a promise of a benefit in the sense that Humphries was promised something he would not otherwise have had. Rather, it was a statement of the status of the case in terms of the facts as Humphries had reported them during the interview and of the law applicable to the situation as Humphries had recounted it. *fn4 Because there was ...