
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




ON MOTION FOR REHEARING






NO. 03-03-00505-CR



Kevin Wayne LaFitte, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT

NO. 9020409, HONORABLE CHARLES F. CAMPBELL, JUDGE PRESIDING 



M E M O R A N D U M   O P I N I O N


	Our opinion and judgment of November 18, 2004 are withdrawn and the following
substituted therefor.
	Appellant Kevin Wayne LaFitte was convicted of capital murder.  See Tex. Pen. Code
Ann. § 19.03(a)(2) (West Supp. 2004-05).  In this case, we will review the trial court's decision to
admit into evidence appellant's videotaped statements allegedly made after he invoked his right to
remain silent and to consult with an attorney.  We will also consider whether hearsay statements
made by third parties and introduced by the State against appellant are admissible as statements
against the declarant's penal interests.  For the reasons stated below, we affirm the judgment of
conviction.

BACKGROUND

	On October 20, 2001, Jeffrey Burns was shot and killed.  Burns was a known drug
dealer who trafficked in large amounts of marihuana.  He lived in South Carolina and traveled
frequently to Austin.  On these trips, he would visit a small circle of friends who acted as suppliers
for him, and he would carry large amounts of cash to make his purchases.  On this occasion, Burns
came to Austin intending to purchase about 200 pounds of marihuana and carried approximately
$70,000 in cash.  During this visit, Burns was stying with a friend, Christopher Marschner.
	On the night of his death, Burns told Marschner that appellant had located marihuana
for him to purchase from appellant.  Burns asked Marschner to go with him to appellant's house to
make the purchase, but Marschner declined.  Instead, Marschner gave Burns directions, and Burns
proceeded on his own at about 8:30 that evening.  He took $42,000 in cash with him.  Marschner had
one last contact with Burns when he received a telephone call from him asking for directions.  By
10:00 p.m., Burns had not returned to meet Marschner.  At about the same time, Burns's body was
found behind his car in the parking lot of Bull Creek Park. (1)  He had died from multiple gunshot
wounds.  Crime scene investigators found on Burns's car palm and fingerprints that later were found
to match those of appellant.
	On October 21, appellant gave a $200 gift card and another $200 in cash to his friend
Latrice McDuffie.  He also signed nine money orders totaling $4,500.  Anthony Dankworth,
appellant's brother-in-law, told one of his friends that he had received $25,000 from someone. 
Dankworth's brother later gave that friend $25,000 in cash, asking him to hold the cash for
Dankworth.  In the next few days, Dankworth also paid off several loans.  Evidence in the record
also establishes that appellant is legally blind and that Dankworth frequently drives him around
Austin. 
	Believing appellant to be a witness to the homicide, Austin Police Department
homicide detective Detective Eric De Los Santos questioned him for three hours on October 21, after
which appellant returned home.  De Los Santos interviewed him again on October 24 and made a
videotape of the questioning.  De Los Santos testified that because he then believed appellant might
have been involved with Burns's homicide, he read appellant his Miranda rights.  See Miranda v.
Arizona, 384 U.S. 436 (1966).  Appellant related a version of events of the evening of October 20
different from that he gave at his previous interview.  During the second interview, appellant stated
that he was at a point where he thought he needed to talk to a lawyer and that he wanted to return
home.  De Los Santos responded, "Okay, that's fine."  As De Los Santos started to leave the room,
appellant stated, "I'm going to finish answering" the question De Los Santos had asked and
continued talking on his own.  De Los Santos attempted to leave the room at several additional
points, but appellant kept insisting that the interview continue.  Appellant then stated that he did not
want to finish the interview that evening because he had been drinking beer and smoking marihuana,
but he also staid that he wanted to continue in the morning, if possible.
	De Los Santos agreed to take appellant home at that time.  He left the room to speak
with his supervisors and then re-entered the room.  The interview continued, and appellant did not
request to terminate it.  During the interview, De Los Santos told appellant that his friends, Artium
Prov. and Anthony Brian Dankworth, were making statements to police in other rooms.  Because De
Los Santos became concerned that appellant would alert other suspects about possible searches, De
Los Santos decided to place appellant under arrest.  Appellant then asked for an attorney.  In
response, De Los Santos asked appellant to clarify if a request had been made.  Appellant confirmed
that he was requesting an attorney.  The interview ended at that point, and De Los Santos left the
room.  The videotape, however, continued recording.
	On May 21, 2002, appellant was charged by indictment with capital murder.  See Tex.
Penal Code Ann. § 19.03(a)(2).  At a pretrial hearing, appellant argued that his incriminating
statements made and recorded during the October 24 interview should be suppressed because he had
invoked his right to counsel and his right to terminate the questioning. (2)  The trial court overruled his
motion to suppress.  It also filed findings of fact and conclusions of law, in which it found that
appellant did not invoke his right to terminate the interview or his right to an attorney before De Los
Santos ceased talking with him.  Thus, it denied the motion to suppress the videotape of the October
24 interview.  At trial, the State offered an edited version of the videotape, which included only those
statements made before De Los Santos decided to arrest appellant and statements made when
appellant was left alone in the room.  De Los Santos also testified about the interview.
	In addition, the State offered the testimony of Jenny Vanrens, a friend of appellant,
who testified that she had seen appellant on two occasions with a gun similar to the type used in
Burns's homicide.  She also testified about a telephone conversation she had with Dankworth two
weeks before the homicide.  She had been living in Wisconsin, and Dankworth was trying to
convince her to move back to Austin.  She told Dankworth she could not move because she did not
have any money.  Dankworth then told her that appellant had approached him with a plan concerning
"a guy coming from out of town and they just--they had planned to rob him for the money and the
drugs and they were splitting it and he would have cash pretty much."  She stated that Dankworth
told her that this robbery was to occur about two weeks after the conversation, and she identified the
weekend that the homicide occurred.
	John Paul Wile also testified.  He shared a duplex with Artium Prov. and lived next
door to appellant.  Prov. and Wile also worked together at an Arby's restaurant.  One day at work,
Prov. took a telephone call.  When he finished speaking on the phone, he approached Wile and "said
something about there is going to be--him and Kevin (3) were going to jack (4) somebody that was
coming to town with a bunch of money."  Prov. thought that the robbery would yield $40,000 to
$50,000.  He then asked Wile to be the driver for them, but Wile declined.  Wile further testified that
he overheard Prov. speak about his plans several times over a couple of weeks.  Although he had first
spoken about the robbery as occurring in a hotel room, over time Pirov's plan changed and he had
stated that the robbery would take place in a parking lot.
	Wile also testified that at about 8:00 p.m. on the evening of the murder, Prov. wanted
to take a nap and asked Wile to wake him up if appellant called.  Appellant never called, and Wile
left the duplex around 11:30 that evening.  When he returned the next day, Prov. was angry at Wile
for not waking him up.  He complained that he could have made a lot of money that night if Wile
had awakened him.
	Corey Miller, who is a friend both of Burns and of appellant, testified that, about a
week before Burns's death, appellant told him that Burns would be an easy target for a robbery. 
When Burns came to Austin and was looking to purchase marihuana, he contacted Miller, who then
connected him to appellant.  Miller also testified that appellant and Burns were supposed to meet
between 8:00 and 10:00 in the evening to complete the transaction.
	Javiel Ramirez, another friend of appellant, testified that appellant had discussed
robbing Burns several months before the murder.  Appellant knew when Burns was coming into
town.  He asked Ramirez to drive him to commit the robbery. 
	A jury found appellant guilty, and the trial court assessed punishment at life
imprisonment.  This appeal followed.

DISCUSSION

	In four issues, appellant argues that the trial court erred in failing to suppress
incriminating statements he made on videotape while he was at the police station because he invoked
his Fifth Amendment rights to counsel and to terminate the interview and in allowing witnesses to
testify concerning hearsay statements as statements against interest.  We will discuss each issue in
turn.

Fifth Amendment Rights
	In his first and second issues, appellant argues that the trial court erred in failing to
suppress incriminating statements he made on videotape during the questioning that occurred on
October 24.  First, he argues that questioning occurred after he invoked his right to counsel.  Second,
he argues that questioning occurred after he had invoked his right to terminate the interview.  In
particular, he argues that the trial court erred in admitting De Los Santos's testimony concerning
statements appellant made during the questioning on October 24 but that were not shown to the jury
on the videotape.  Finally, he argues that an incriminating statement he made while police officers
were not in the room but that was captured on videotape would not have been made had De Los
Santos ceased questioning him when he invoked his rights.  He believes that these errors were
constitutional and contributed to his conviction, and he therefore urges that we reverse the judgment
of conviction and remand for a new trial.
	We review a trial court's ruling on a motion to suppress for an abuse of discretion. 
Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991).  The trial court is the sole and exclusive
trier of fact and judge of the credibility of the witnesses as well as the weight to be given their
testimony at a hearing on a motion to suppress.  Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990).  On appeal, we do not engage in our own factual review, but we decide only whether
the trial court's fact findings are supported by the record.  Id.
	We begin with appellant's second issue, in which he argues that questioning
continued after he invoked his right to terminate the interview on October 24.  Once warnings have
been given, as happened in this case, the subsequent procedure to be applied during an interrogation
is clear:  if the individual indicates in any manner, at any time before or during questioning, that he
wishes to remain silent, the interrogation must cease.  Miranda v. Arizona, 384 U.S. at 474.  At this
point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken
after the person invokes his privilege cannot be other than the product of compulsion, subtle or
otherwise.  Id.
	In this case, our review of the videotape does not support appellant's assertion that
he sought to terminate the interview.  In particular, appellant asserts that during questioning, he
stated, "I'm done and I don't want to be involved."  However, at this point in the questioning,
appellant was responding to questions about how much he had to drink that day and how much
marihuana he had smoked.  He admitted to being "buzzed" and stated, "I made a conscious decision
earlier [after the October 21 interview] and told all my friends I'm done and I don't want to be
involved."  He also indicated that he was speaking willingly at that point.  We determine that
appellant was only relating that he had decided before the questioning that he did not want to
cooperate further but had changed his mind.  The trial court appropriately determined that appellant
did not indicate a desire to terminate the interview at that point.
	Appellant also contends that no part of the videotape made after the point at which
appellant was left alone in the interview room should have been played to the jury nor should De Los
Santos have been allowed to testify about appellant's statements at trial because those statements
were a direct result of the detective's failure to terminate the interview after appellant expressed his
desire to do so.  Appellant urges that illegally obtained evidence may not be admitted.  Tex. Code
Crim. Proc. Ann. art. 38.23 (West Supp. 2004-05); Hernandez v. State, 600 S.W.2d 793 (Tex. Crim.
App. 1980).  We have already concluded that the trial court correctly determined that appellant did
not indicate a desire to terminate the interview at that point and therefore his Fifth Amendment rights
were not violated.  Accordingly, the complained-of evidence was not illegally obtained; consequently
its admission was not barred under article 38.23.  We overrule appellant's second issue. (5)
	In his first issue, appellant argues that questioning continued after he invoked his right
to counsel.  When an accused has expressed his desire to deal with the police only through counsel,
he is not subject to further interrogation by the authorities until counsel has been made available to
him, unless the accused himself initiates further communication, exchanges, or conversations with
the police.  Edwards v. Arizona, 451 U.S. 477, 487-88 (1981).  "The right to counsel is considered
invoked where a person indicates he or she desires to speak to an attorney or have an attorney present
during questioning."  Lucas v. State, 791 S.W.2d 35, 45 (Tex. Crim. App. 1989).  An invocation
must be clear and unambiguous;  the mere mention of the words "attorney" or "lawyer" without
more, does not automatically invoke the right to counsel. Dinkins v. State, 894 S.W.2d 330, 351
(Tex. Crim. App. 1995); Robinson v. State, 851 S.W.2d 216, 223 (Tex. Crim. App. 1991); Collins
v. State, 727 S.W.2d 565, 568 (Tex. Crim. App. 1987).  When reviewing alleged invocations of the
right to counsel, we look at the totality of the circumstances surrounding the interrogation, as well
as the alleged invocation, to determine whether a suspect's statement can be construed as an actual
invocation of his right to counsel.  Dinkins, 894 S.W.2d at 351.  If the appellate record in a criminal
case reveals constitutional error, we must reverse a judgment of conviction or punishment unless we
determine beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.  See Tex. R. App. P. 44.2(a); McCarthy v. State, 65 S.W.3d 47, 52 (Tex. Crim. App.
2001).
	When being asked where Dankworth was so that officers could pick him up for
questioning, appellant stated, "I'm ready to go home.  I need to talk to a lawyer and go home."  At
this point, De Los Santos had been questioning appellant for two hours.  Although De Los Santos
had told appellant that he was not in custody, he had read appellant his Miranda rights.  The tone of
the questioning had become increasingly aggressive.  In addition, De Los Santos responded to
appellant's statement by stopping the conversation, recognizing that appellant had invoked his right
to counsel, and leaving the room to consult with his supervisor.  Assuming that these circumstances
indicate that appellant effectively invoked his right to counsel, we note that the State voluntarily
edited the videotape and that the jury in this case did not view any statements made by appellant after
this invocation except for the incriminating statement he made while left alone in the interrogation
room.  In addition, we have reviewed the videotape and De Los Santos's testimony at trial, and we
find that De Los Santos did not testify to any statements made by appellant after he invoked his right
to counsel.  Thus, we must consider only if the admission of the incriminating statement he made
while left alone in the interrogation room was error.
	At the end of the interview, De Los Santos left appellant alone in the interview room
while he prepared to take appellant home.  De Los Santos had told appellant that Dankworth and
Prov. had narrated the events of October 20 differently than he had.  While alone in the room, but
while the video equipment was still recording him, appellant stated:

Now I am fucked, I am in jail regardless, can't believe Arty is saying this stuff, man. 
Please don't talk.  I am gone.  Do not fuck me, Bryan.  Don't fuck me, Bryan.  No
physical evidence whatsoever, huhm, huhm, huhm, not one single strand of physical
evidence.  You can't prove nothing.

	In general, article 38.22 of the code of criminal procedure governs the admissibility
of oral statements and codifies the requirements of Miranda.  See Tex. Code Crim. P. 38.22 (West
1979 & Supp. 2004-05).  Statements which are not the result of or do not stem from custodial
interrogation are admissible under Article 38.22 on the question of guilt.  Id., §§ 3, 5; Chambliss v.
State, 647 S.W.2d 257, 261 (Tex. Crim. App. 1983).  Custodial interrogation is questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.  Miranda, 384 U.S. at 444; Burns v. State, 807 S.W.2d 878,
882 (Tex. App.--Corpus Christi 1991, pet. ref'd).  In this case, appellant's statements were made
while he was alone in the room.  No questioning was occurring; thus, the statements were not made
as a result of custodial interrogation.
	Appellant also contends that no part of the videotape made after the point at which
appellant was left alone in the interview room should have been played to the jury nor should De Los
Santos have been allowed to testify about appellant's statements during that time because those
statements were a direct result of the detective's failure to terminate the interview after appellant
invoked his right to counsel.  Appellant urges that illegally obtained evidence may not be admitted. 
See Tex. Code Crim. Proc. Ann. art. 38.23 (West Supp. 2004-05); Hernandez v. State, 600 S.W.2d
793 (Tex. Crim. App. 1980).  We have already concluded that the statement made while alone in the
room was not the product of custodial interrogation and therefore his Fifth Amendment rights were
not violated.  Accordingly, the complained of evidence was not illegally obtained and its admission
not barred under article 38.23. We overrule appellant's first issue.

Statements Against Penal Interest

	In his third issue, appellant argues that the trial court erred in allowing Vanrens to
testify about Danworth's statements to her concerning his plans to commit a robbery with appellant. 
In his fourth issue, appellant argues that the trial court erred in allowing Wile to testify about Pirov's
hearsay statements concerning his plans to commit a robbery with appellant.
	The trial court ruled that both instances of hearsay were admissible as statements
against penal interest.  See Tex. R. Evid. 803(24).  The admissibility of an out-of-court statement
under an exception to the general hearsay exclusion rule is within the trial court's discretion.  Zuliani
v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Lawton v. State, 913 S.W.2d 542, 553 (Tex.
Crim. App. 1995).  Therefore, a reviewing court should not reverse unless a clear abuse of discretion
is shown.  Zuliani, 97 S.W.3d at 595.  An abuse of discretion occurs "only when the trial judge's
decision was so clearly wrong as to lie outside that zone within which reasonable persons might
disagree."  Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
	Hearsay is a statement, other than one made by the declarant while testifying at a trial
or hearing, offered in evidence to prove the truth of the matter asserted.  Tex. R. Evid. 801(d).  For
hearsay to be admissible, it must fit into an exception provided by a statute or the rules of evidence.
Tex. R. Evid. 802.  One such exception is Rule 803(24), which provides for the admissibility of a
hearsay statement that "so far tended to subject the declarant to civil or criminal liability" at the time
of its making "that a reasonable person in declarant's position would not have made the statement
unless believing it to be true."  Tex. R. Evid. 803(24).  In criminal cases, this hearsay exception has
a second prong--"a statement tending to expose the declarant to criminal liability is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement."  Id.
	We begin with Vanrens's testimony about Dankworth's statements.  As to the first
prong of the 803(24) exception, appellant argues that Dankworth's statement in this case was made
two weeks before the commission of the homicide.  He asserts that rule 803(24) applies only to
statements made after the commission of a crime and that are inculpatory as to that crime.  See, e.g.,
Dewberry v. State, 4 S.W.3d 735, 749-50, 753-54 (Tex. Crim. App. 1999).  We agree that
Dankworth's statements would not have subjected him to criminal liability at the time for capital
murder.  However, Dankworth had spoken about plans to commit the robbery, both with appellant
and with Vanrens.  Drivers had been solicited.  The evidence showed that Dankworth and appellant
had chosen Burns as a victim because he did not carry a gun and would have a large amount of cash. 
In addition, Dankworth had told Vanrens when the robbery would occur.  Thus, evidence in the
record establishes that Dankworth could be liable for criminal conspiracy at that time.  See Tex. Pen.
Code Ann. § 15.02 (West 2002).  As a result, the trial court did not abuse its discretion by
concluding that the first prong of the rule 803(24) test was satisfied.
	As to the second prong--whether corroborating circumstances clearly indicate the
trustworthiness of the statement--no definitive test exists by which to gauge the existence of
corroborating circumstances for purposes of rule 803(24).  Davis v. State, 872 S.W.2d 743, 749 (Tex.
Crim. App. 1994).  Many factors may be considered in this inquiry, including "whether the guilt of
the declarant is inconsistent with the guilt of the accused, whether the declarant was so situated that
he might have committed the crime, the timing of the declaration and its spontaneity, the relationship
between the declarant and the party to whom the declaration was made, and the existence of
independent corroborating facts."  Id.  Further, we may consider evidence which undermines the
reliability of the statement as well as evidence corroborating its trustworthiness, so long as we are
careful not to engage in a weighing of the credibility of the in-court witness.  Id.  "The burden lies
with the party seeking to admit the statement, and the test is not an easy one; the evidence of
corroborating circumstances must clearly indicate trustworthiness."  Id.
	Dankworth's statements are corroborated by evidence admitted at trial.  His
description of the planned robbery matches appellant's behavior at the time the murder took place. 
For example, appellant left to meet Burns after 8:00 that evening, and Burns had come to Austin with
a large amount of cash.  In addition, Vanrens called Dankworth twice that evening and was not able
to reach him.  After the murder, Dankworth told one of his friends that he had taken $25,000 from
someone.  Dankworth's brother later gave that friend $25,000 in cash, asking him to hold the cash
for him.  Dankworth also paid off several loans.  At the same time, appellant gave a $200 gift card
and another $200 in cash to his friend Latrice McDuffie.  He also signed nine money orders totaling
$4,500.  Finally, appellant's finger and palm prints were found on Burns's car.  We find that the trial
court could have relied on this evidence in determining that Dankworth's statements were
corroborated.  The trial court did not abuse its discretion by finding both prongs of rule 803(24).  We
overrule appellant's third issue.
	Finally, we turn to Wile's testimony about Pirov's hearsay statements concerning his
plans to commit a robbery with appellant.  As to the first prong rule 803(24), Prov. had several
conversations about a planned robbery, the plans changed over time, and he actively solicited Wile
as a driver.  He could potentially be held liable for criminal conspiracy based on the evidence in the
record.  Turning to the corroborating evidence prong, we note that much of the evidence we
reviewed corroborating Vanrens's testimony serves also to support Wile's.  In addition, it appears
that Wile and Prov. had a close relationship--they shared a duplex and worked together.  We find
that the trial court acted within its discretion in admitting Wile's testimony.  We overrule appellant's
fourth issue.

CONCLUSION

	Because we overrule all appellant's issues on appeal, we affirm the judgment of
conviction.


					__________________________________________
					W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Patterson and Puryear
Affirmed
Filed:   March 10, 2005
Do Not Publish
1.        Neighbors in the area had reported hearing gunshots coming from the park at around 9:41.
2.        We will discuss the relevant portions of the videotape when we examine appellant's issues on
appeal.
3.        Wile stated that he understood Pirov to be referring to appellant.
4.        Wile testified that "to jack" meant "to rob."
5.        Appellant argues that he also indicated his desire to terminate the interview at later points
during the interrogation.  When we review appellant's first issue, we will determine that he invoked
his right to counsel before he made any of those later statements.  We note that each of those
invocations of his right to terminate the interview occurred after he invoked his right to counsel and
that the State voluntarily edited out all statements appellant made after he invoked his right to
counsel before the video was introduced into evidence.  Thus, we need not review them at this time.

