NO. 73,350







Keller, P.J., filed a dissenting opinion in which HERVEY, J., joined.


If appellant's statement were truly a confession, in the sense that in it appellant admitted that she murdered Mrs. Booth, I would agree with the Court that its admission harmed appellant. Questions of harm and of the applicability of cases dealing with the improper admission of confessions are complicated, however, by the fact that when appellant gave her voluntary statement to Detective Bishop, she meant it to be exculpatory. And it was exculpatory. If the jury had believed what appellant said in her statement, the jury could have decided that appellant acted under duress on the morning of the murder and that she was not guilty of any crime at all. The introduction of the statement provided the jury with an option that did not exist in the absence of the statement.

In fact, and not surprisingly, appellant fashioned her defense around the statement. Max Courtney, director of a crime lab, testified that he was furnished photographs, witness statements, police statements, prosecution reports, autopsy reports, and more. From those items, he determined that nothing in the physical evidence at the murder scene was inconsistent with appellant's statement to Detective Bishop. Courtney further testified that the physical evidence at the murder scene appeared to be consistent with two different pairs of shoes leaving marks in the entryway, and with a bloody knife mark that did not match the knife found in appellant's house.

Because of the admission of appellant's statement, the trial court included in the jury charge an instruction on duress. Defense counsel was also able to argue duress to the jury, contending that appellant was coerced into helping Kilo and J.C. and that her statement was consistent with the evidence.

The defense of duress, and Max Courtney's testimony backing up the story in the statement, were available to appellant because her statement was admitted at trial. It is true that appellant was stuck with that particular defense once the statement was admitted, but she got the benefit of having the defensive theory she herself devised placed before the jury without having to testify. Moreover, if she had testified to facts inconsistent with the Kilo-J.C. duress story, the State could have introduced the statement to impeach her credibility. (1) Appellant's options became limited the moment she gave the statement, regardless of whether the State introduced it during its case-in-chief. The possibility of raising an actual defense other than duress was, to all intents and purposes, foreclosed by the State's ability to use appellant's statement for impeachment.

Setting aside consideration of the statement, there was abundant evidence that appellant killed Mrs. Booth. Appellant was seen driving Mrs. Booth's car within about an hour of the murder. Appellant pawned Mrs. Booth's ring that same day. Appellant used Mrs. Booth's credit cards several times and had the credit cards and Mrs. Booth's driver's license when arrested. Police found a large knife, cleaned but stained with Mrs. Booth's blood, in appellant's kitchen cabinet. The knife matched others found in appellant's kitchen.

The ultimate question is whether the admission of the statement contributed to appellant's conviction or punishment. (2) The Kilo-J.C. story offered an explanation for all of the above evidence, to one extent or another. Without the Kilo-J.C. story, there was no explanation. And because the Kilo-J.C. story was available for impeachment purposes, appellant was limited in her ability to propose a different defense to the jury.

The evidence that fit least well with the Kilo-J.C. story was the evidence that was also, absent the story, most incriminating, namely: the knife. The appearance of what was apparently one of appellant's own knives, cleaned, in her kitchen cabinet, with the victim's blood under the handle, is consistent with the Kilo-J.C. story because according to the story, the two men were at appellant's house both before and after the murder. Counsel suggested in argument that the men took the knife and then after the murder put it in the cabinet to incriminate appellant. In the absence of the Kilo-J.C. story, there is no explanation at all for the presence of the bloody knife in appellant's kitchen cabinet. The Kilo-J.C. story offers an explanation for the other evidence, such as appellant's possession of Mrs. Booth's car, credit cards, and ring. It may or may not be a very good explanation, and in fact the jury rejected it. But it was better than no explanation, which is what appellant had absent the admission of the statement.

The State used appellant's statement to argue that she was a liar. Showing a defendant to be a liar could establish harm. But in this case, the very same evidence that tended to show appellant was a liar was the evidence that tended to show she was a murderer. If the jury believed that the presence of the knife in appellant's kitchen, for instance, showed that appellant lied about Kilo and J.C., then the jury also believed that appellant had the murder weapon hidden in her kitchen cabinet, with no explanation for it being there.

The State also used appellant's statement to put her at Mrs. Booth's house the morning of the murder. But appellant's possession of the victim's car and other property shortly after the murder ties her to the murder anyway. Her statement at least attempted to explain that possession in a manner consistent with innocence. Absent the statement, there was no explanation. Her statement was buttressed by Max Courtney's testimony about two possible different shoe prints and a possible different knife, and supported by his claim that everything appellant said beginning with "I called my neighbor Dorothy Booth" to "both guys went back into my house and came out with my jam box, cordless phone and caller ID" was consistent with the physical evidence at the murder scene.

The State argued to the jury that it could find appellant guilty of capital murder even if it believed her story about Kilo and J.C., by convicting her as a party or as a conspirator. But that is not true unless the jury disbelieved the claim of duress. Of course, the jury could believe one part of the statement and disbelieve other parts, but if the jury had believed all of it, appellant would have been acquitted. Even if the jury believed only part of the statement, appellant was still no worse off than she would have been with no defensive theory at all, or with whatever defensive theory counsel could suggest in argument.

Given the extremely damaging evidence against appellant, and the fact that the statement put before the jury appellant's explanation for the evidence and her claim of innocence, and the fact that making the statement limited her options regardless of whether it was introduced in the State's case-in-chief, I would hold that appellant was not harmed by the admission of the statement.


DATE FILED: December 12, 2001


1. Mincey v. Arizona, 437 U.S. 385, 397-398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); Oregon v. Hass, 420 U.S. 714, 43 L.Ed.2d 570, 95 S.Ct. 1215 (1975).

2. Tex. R. App. P. 44.2(a).