NO. 07-01-0384-CR IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D JUNE 14, 2002

______________________________ LAWRENCE HIGGINS, aka LAWRENCE RIGGI NS,

aka DALTON ROSS I,

Appellant
v. THE STATE OF TEXAS, Appellee

_________________________________ FROM THE 347 TH DISTRIC T COURT O F RANDALL COUNTY; NO. 13,352-A; HON. DAVID GLEASON, PRESIDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Lawrence Higgins, aka Lawrence Riggins, aka Dalton Rossi (appell ant) appeals his convicti on for murder. Vi a four points of error, he contends tha t the trial court erred in 1) excluding specific, pertinent characte r evidence of the victim, 2) sua sponteruling o n the exclusio n of the aforementioned speci fic, pertinent character ev idence, 3) omit ting the full definition of causation (i nc luding conc urrent causati on) as containe d in §6.04(a) of the Texas P enal Code, and 4) admitting i nto evidence a custodial, r ecorded statement2

because “promis e(s) were made by ag ents of t h e S t a t e t o o b t a i n t h e ‘ c o n fe s s i o n s
. ’ ” We affirm. Points One and Two Regarding points one and tw o, appellant bel ieves that he was enti tl ed to present evidence of

specific char

acter trait

s of the vict im and that

the trial court erred i n sua sponte excluding same. We overrule the obj ections for several reasons

. First, appellant never objected bel ow to the trial c ourt’s acti ons or decisi ons. Nor did he present any

of the grounds und erlying his curre ntarguments to the trial court. Thus, his complaints

were not p reserved. T EX
. R. A PP
. P. 33.1(a); Holberg v. S tate , 38 S.W.3d 137, 140 (T ex . Crim. App. 2000), cert. denied , 151 L.Ed.2d 298, 122 S.Ct. 394 (2001) (holding t hat by not

objecting to the trial court appellant forfeited his ri ght

to complain on appeal). Second, the exchange upon which appellant based h is complaints was ini tiated by appellant. That is, he knew that the trial court gr

anted those aspects

of the State’s motion in limine pertai ning to evi dence o f speci fic ins tancesof sex ual mi scondu ct by the v icti m. So too d id he reali ze tha t the line o f que stio ning h e int end ed to purs ue co uld h ave encroached into that area. So, he asked the court to address the s ituation before he began. Furthermore , upon the trial court making the decision about which he complains, i.e. refusing to al low ev idence of specific instances of misconduct, counsel for appellant responded “okay,”“I just w anted to clarify that,” and “I just felt likewe s hould a ddress some issues at this point .” From this, we see that the tr ial court di d not act sua spontebut at the invitati on of appellant, and to that extent th e court accepte d the invi tation, appellan t cannot1 Secti on 6.04( a) of the Penal Codes stat es: “ [a] person i s cri minall y r esponsibl e if the r esult

would n ot have occurred but f

or hi s conduc t, operat ing ei ther alone or concur rent ly wit h another

cause, unl ess the concurrent

cause was cl earl y suf fi cient to pr oduce the resul t and t he conduct of t he ac tor cle ar ly insuf ficient.”

3 complain. See Hill

v. State , 913 S. W.2d 581, 597- 98 (Tex . Cri m. App. 1996) (one cannot complain about error he invites). Point Thr ee Next, appe lla nt c onte nds t hat t he tr ial cour t er red in fa iling t o charge the jury on causation as that term i s defined i n §6. 04(a ) of the Texas Penal Code. 1 That is, he believesthatthe trial court should have instructed the jury on concurrent causation. We overrule the point for several reasons. First, while app ellant objecte d to that porti on of th e c harge defining causation, he said nothing about b eing entitled to an instruc tion on concurr

ent causation. Instead, he merely uttered that the reference to causa tion by ” the way it has been w

orded or the w

ay itreads, it tends to lend an air of pre ponderance ofthe evidence or a civil duty rather than reasonable doubt [an d he] . . . would object to that. ” So too did he say that hefelt “like it adds something to t he [c]harge t hat isn’t in the criminal element [sic].”Furthermore , appellant

likens, i n his brief, co ncurrent caus ation to a defensive issue. See Roberts v. State , 923 S.W.2d 141, 146 (Tex. App.–Tex arkana 1996, pet. r

ef’d) (discus sing concur rent causation within the framework of a defensive issue); Hutchesonv. State , 899 S.W.2d 39, 42 (Tex. App.–Amar illo 1995, pet. ref’d) (w herein this court discuss ed co ncurrent caus ation within the framework

of a defensive is sue). The issue being defensive in nature, he was obligated to request that the court i nstruct the j ury on it before he could compla in of its omiss ion on a ppeal. See Posey v. Stat e , 966 S.W.2d 57, 62 (Tex. Cri m. App. 1998)4

(holding that complaintsregarding t he omis sion fr om the jury charge of defensive iss ues must be preserved by request or objection). Second , assum ing arguendothatappellant had preserved his complain t, we note thatone is not enti tled to an inst ruction on conc urrent causati on unless thereexists evidence that the concurrent cause was c lear ly sufficient to produce the r esult and the conduct of the appellant was clearly insufficient. Hutcheson v. State , 899 S.W.2d at 42. Here, appellant cites us to nothing of record illustrating some act or inj ury committed by
someone other than himsel f was clear ly sufficient to produc e the death of his vic tim. At best, we are cited to ev idence whi ch simply suggests

that the locati on of the victim ’s exroomm ate named Collerd was unknow n for several hours on the ni ght the vi ctim died, Collerd acted strang ely on that night , an d Collerd’ s fingerpri nts were found at the abode where he once lived and in which victim was killed. Yet, nowhere are we told by appellan t of any specific physical act committed or injury inflicted by Collerd upon the victim. Thus, appellant

failed to ill ustrate that so me other yet concur rent cause was clearly sufficient to produced the victim’s death. And, hav ing failed to illustrate that, he also failed to establish his entitlement

to the instr uction. Point Four Fina lly, appellant contend s that the tri al court err ed in denyin g his motion to suppress his c o nfession because it was involuntary. The confession was allegedly involuntarybecause it w as obtained throu gh improper inducement. That purporte d induce me nt consist ed of giving appellant one or more cigarettes in exchange f or his confession and threatening him with the death penalty if he did not “talk.” We overrule th e point.5

Whether the trial court erred in refusing to suppress a confession depends upon whether it abused its

discretion

. Villareal v. State , 935 S .W .2d 1 34, 1 38 (T ex. Crim. App. 1996). And, we will not disturb the ruling if supported by

the record. Arnold v. Stat e , 873 S.W.2d 27, 34 (Tex. Crim. App. 1 993), cert. denied , 513 U.S. 830, 130 L.Ed.2d 51, 115 S.Ct. 103 (1994). F urthermore, thetrial cour t is the sol e factfinder at the hearing. Id. This entitles it to judg e the weig htand credibili ty of the w itnesses and the ir testimony and accept
or reject all or any par

t of the testimony

of any wi tness, inclu ding those of theState or the defense. Snow v. Sta te , 7 21 S.W.2d 943, 946 (Tex. App.--H ouston [1st Di st.] 1986, no pet.). So, w

e must defer to itsresolution o f pivotal factual disputes. Next, a suspect's statement may be u sed against him when it is freely

and voluntarily

made without

compulsion or

persuasion. T EX
. C RIM
. P ROC
. C ODE A NN . § 38.21 (Vernon Supp. 2002); Campos v. State , 977 S.W.2d 458, 464 (Tex. App.--W aco 1998, no pet.). Furthermore, the determina tion of whether a stateme nt is voluntary must be based
on an examinati on of the totality of the circumstanc es surroundi ng its acq uisition. Bordman v. State , 56 S.W.3d 63, 69 (Tex. App.–Hous ton [14 th Dist.] 2001, no pet.). Fina lly, sta teme nts indu ced b y pr omis es of

a certain kind may r

ender the statement involuntaryand inadmissib le. Yet, to be withi n that kind, the promise must be 1) of s ome benefit to the defendant, 2) pos itive, 3) mad e or sa ncti one d by a p erso n in a utho rity, and 4) of such an influentia l nature as to be likely to influence the defenda nt to speak untr uthf ully. Creager v. State, 952 S.W .2d 852, 856 (Tex. Crim. App. 19 97). W ith this said, we turn to the allegations before us.6

We address first the matter o f thre atening the appel lant wit h the death penalty unless he spoke. This particular ground was never

mentioned below. Indeed, both in his motion to suppress an d at the s uppr ession hearin g, appellant merely all uded to the temptation of a cigarette as improper i nducement. Given that it went unment ioned belo w, itcannot be the basis fo r a reversal on appeal. See Holberg v. S tate , 38 S.W.3d at 140. As to the matter of a ci garette, w e note thatthe record contains evi dence evinci ng an offer on behalf of appellant totell the tr uth if he were g iven a ci garette. H owever , one of the officers interr

ogating appe llant testifie d at the suppressi on hearing th at the offer was rejected because he “di d not want to give [ap pellant] a cigarette.” And, though anothe r officer subsequently

obtained cig arettes and both officers allowed appellant to smoke them, this occur red after appellant confesse d to striking his victim on the head with w eight lifting equipment. This

created a disputed iss ue of fact regardi ng whether any promis e was made which could have in duced appellant to co nfess. Simply put, one cannot be induced by a promise that

was never made. And, as evinced by the findings of f act it subsequently executed, the trial court accepted the testimony of the officers as tr uthful and determined thatthe supposed proposi tion uttered by appellant was rejected. The pr oposition hav ing been rejected overtly by the officers, it could not serve as inducement for any confession by appellant. Thus, evidence of record suppor ts the trial court’s dec ision, and it cannot be considered an abu se of discreti on. Accordingl y, the judg ment is affirmed.

Brian Quinn Justice Do not publish

.