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Click here for the full text of this decision FACTS:In the early morning hours of April 22, 2005, Wendell Roy Mitchel shot Houston Police Department officer R. Montelongo during a routine traffic stop. After the shooting, Montelongo returned to his patrol car and notified his dispatcher of his injury. When other officers arrived on the scene, Montelongo passed on information about Mitchel, including Mitchel’s driver’s license, which Montelongo had received from Mitchel before the shooting, and a description of Mitchel’s vehicle and license plate number. A short time after the shooting, Officer R. Feusse saw Mitchel driving the same vehicle approximately 10 miles from the location of the shooting. Feusse attempted to pull Mitchel over, but Mitchel refused to stop. Feusse pursued Mitchel until Mitchel wrecked his car in a ditch and fled on foot. Feusse radioed the dispatcher with information of the direction of Mitchel’s flight and the location of Mitchel’s vehicle. After several hours of searching, a team of 10 to 20 officers found Mitchel in an abandoned home and arrested him. Mitchel claims that he overheard unidentified police officers state that Mitchel was lucky that he was found by the officers who arrested him, because if they had found him first, they would have shot him. Mitchel was transported to the police station by Officers Gill and Harris. Mitchel alleges that the officers told him “it was best that [he] cooperate with the officers once [he] got downtown because . . . there was a possibility that they would threaten [him].” Mitchel understood this comment to mean that he might be harmed once he reached the police station, but he admitted that Gill and Harris never threatened him. At the station, Gill and Harris delivered Mitchel to Sergeant B. McDaniel, who testified that Mitchel did not seem fearful of Gill and Harris and that he offered Mitchel food, drink and the use of the restroom before placing Mitchel in the interview room. Mitchel claims that he was refused the opportunity to make a phone call to his family lawyer prior to meeting with McDaniel, but McDaniel testified that Mitchel never asked to call his lawyer. McDaniel, wearing civilian clothes with no visible weapon, interviewed Mitchel by himself. McDaniel testified that he advised Mitchel of his rights and that Mitchel appeared to understand his rights and waived them. McDaniel also testified that he did not make Mitchel any promises or coerce Mitchel in any way. Mitchel alleged that he believed that some harm might come to him if he did not cooperate but also admitted that McDaniel did not threaten him. McDaniel testified that Mitchel appeared “a bit sullen” and “a little sad,” but Mitchel did not appear nervous. After approximately 20 to 30 minutes of unrecorded interview, Mitchel gave a videotaped statement. McDaniel once again advised Mitchel of his rights, including his right to an attorney, and Mitchel waived them. In his statement, Mitchel admitted he fired a shot at Montelongo but only with the intent to scare him away. Mitchel testified that no officer threatened him, promised him anything or coerced him in any way before the giving of his statement. Mitchel challenged the voluntariness of his confession, and the trial court held a suppression hearing. The trial court ruled that the statement was admissible. At trial, Mitchel relied on the argument that he was not guilty of attempted capital murder, because he did not intend to hurt Montelongo. Mitchel argued that he shot Montelongo to scare him so that Mitchel could drive away. In his closing arguments and his appellate brief, Mitchel emphasized that the wound was not fatal and that he never fired a second shot after Montelongo ran back toward his patrol car. The state argued that Mitchel shot at Montelongo with the intent to kill him; therefore, Mitchel was guilty of attempted capital murder. The state pointed to the evidence that Mitchel aimed his weapon at the officer’s face from a distance of a little more than 12 inches. The bullet entered his left cheek and exited near his left ear, and the emergency room doctor testified that the wound would easily have been fatal if the trajectory of the bullet had varied even slightly. The trial court presented its charge to the jury. The charge instructed the jury on the elements of attempted capital murder, then stated, “Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of attempted capital murder of a peace officer and next consider whether the defendant is guilty of aggravated assault on a public servant.” The charge also gave instructions on the elements of aggravated assault on a public servant and deadly conduct. Mitchel requested and received the instruction on the lesser-included offense of deadly conduct and had no other objections to the jury charge. The jury found Mitchel guilty of attempted capital murder and assessed punishment at confinement for 75 years. HOLDING:Affirmed. In his first point of error, Mitchel contended that the trial court erred in finding his confession voluntary. A statement may be deemed involuntary, the court stated, in instances of noncompliance with Texas Code of Criminal Procedure Art. 38.22, instances of noncompliance with the dictates of Miranda, or when there is a violation of due process or due course of law, such as coercion or threats. The court examining the admissibility of the confession must determine whether, in the totality of the circumstances, the defendant was coerced to such a degree that the coercion, rather than his free will, produced the statement. Mitchel, the court noted, raised the issue of the voluntariness of his confession, claiming that he had felt pressured into cooperating and giving the videotaped statement. He also claimed that he was denied the opportunity to make a phone call to his family attorney. At the suppression hearing, the state controverted this testimony with the testimony of McDaniel, who testified that Mitchel was neither fearful of the officers who had transported him to the police station nor nervous or fearful during the interview. McDaniel further testified that he advised Mitchel of his rights twice, including his right to counsel and that Mitchel waived those rights twice and never asked for his attorney or for McDaniel to stop the interview. The court found that sufficient evidence established that the taking of Mitchel’s statement complied with Art. 38.22 and with the dictates of Miranda, and also that there was no coercion or other violation of due process. Therefore, the court found that the trial court was within its discretion in ruling that the confession was admissible. In his second point of error, Mitchel argued that the jury charge was improper. Specifically, Mitchel argued that the trial court erred by instructing the jury that it must unanimously acquit him of the greater offense before considering the lesser-included offense. The court found no error in the charge. The charge, the court stated, instructed jurors that having a reasonable doubt of Mitchel’s guilt of the greater offense amounted to an acquittal of that offense and required that jurors consider the lesser offenses. The charge then required that, if the jurors had a reasonable doubt as to whether Mitchel was guilty of the greater offense or the lesser included offense, the jurors had to resolve any doubt by finding Mitchel guilty of the lesser offense. When read together, these two instructions properly instructed jurors regarding the effect of their having had a reasonable doubt as to any charged offense. OPINION:Keyes, J.; Taft, Keyes and Alcala, JJ.

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