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Sloan v. State

Court of Appeals of Texas, Fourteenth District, Houston

December 19, 2013

Andre Jamal SLOAN, Appellant
v.
The STATE of Texas, Appellee.

Page 885

[Copyrighted Material Omitted]

Page 886

Danny K. Easterling, Houston, for appellant.

Jessica Alane Caird, Houston, for the State of Texas.

Panel consists of FROST Chief Justice and McCALLY and BUSBY Justices.

Page 887

OPINION

SHARON McCALLY, Justice.

A jury found appellant Andre Jamal Sloan guilty of capital murder, and the trial court sentenced appellant to a mandatory punishment of life imprisonment. Appellant challenges his conviction on the ground that the trial court erroneously denied his motion to suppress his recorded statement. Appellant challenges his sentence on the ground that a mandatory punishment of life imprisonment is cruel and unusual in violation of the Eighth Amendment to the United States Constitution. We affirm.

BACKGROUND

In 1990, Wistong Javier Potes and his wife Tamara Potes were attacked in their house. Wistong was shot in the head, causing his death. Tamara was raped by multiple men and also shot in the head, but she survived. At the hospital, a rape kit was used to collect evidence, and her nightgown was taken into evidence. A year later, she was shot and killed in an unrelated incident. The investigation of Wistong's murder went cold.

In 1993, a jury convicted appellant of an unrelated capital murder and assessed punishment at life imprisonment in the Texas Department of Criminal Justice. This court affirmed his conviction on direct appeal. See Sloan v. State, No. 14-93-00891-CR, 1997 WL 110000 (Tex.App.-Houston [14th Dist.] Mar. 13, 1997, pet. ref'd) (not designated for publication).

In 2010, Sergeants Eric Clegg and Michael Holtke were working in the Cold Case Unit of the Homicide Division for the Harris County Sheriff's Office. The Sheriff's Office submitted the physical evidence stored in the Potes case, including the nightgown and rape kit, to the Harris County Institute of Forensic Sciences (HCIFS) for forensic testing. The HCIFS notified the Sheriff's Office of a " DNA CODIS hit," meaning that DNA from the rape kit or nightgown matched the DNA from a criminal defendant stored in a state database. The DNA matched to appellant.

The sergeants obtained a search warrant for appellant's DNA and a bench warrant to have appellant transferred from prison to the Harris County jail. On September 3, 2010, appellant was brought to the Sheriff's Office for an interview and the taking of his DNA. An audio-visual recording was made. Clegg told appellant that he was in custody, and Clegg read Miranda [1] and Article 38.22[2] warnings to appellant. Appellant waived his rights and agreed to be interviewed. Appellant denied involvement in the Potes case. Holtke gave appellant a business card at the conclusion of the interrogation.

On Labor Day, September 6, a clerk for the Cold Case Unit, Rebecca Sweetman, received a phone call from a man identifying himself as Andre Sloan. The man asked for Holtke. Sweetman notified Clegg, and the sergeants went to the Harris County jail on September 8. Jailers escorted appellant to the inmate processing center where the sergeants and appellant went to a small office used by supervisors at the jail. Appellant was brought to the sergeants in handcuffs, but the handcuffs were removed. The sergeants were not wearing firearms. The sergeants asked appellant if he wanted to see them, and he said that he did. Appellant told the sergeants that he wanted to speak with them to " get some closure" ...


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