TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-01-00566-CR

Jay Fieldon Howell, Appellant

v.

The State of Texas, Appellee

FROM THE CRIMINAL DISTRICT COURT 2 OF TARRANT COUNTY

NO. 0711028D, HONORABLE DAVID R. WHITE JR., JUDGE PRESIDING

Appellant Jay Fieldon Howell bludgeoned and stabbed a fourteen-year-old girl in a shed 

behind his home. Two days later, after being taken into custody, he confessed. Appellant pleaded guilty to 

serious bodily injury to a child. See Tex. Pen. Code Ann. ' 22.04(a)(1) (West Supp. 2002). The district 

court sentenced him to imprisonment for sixty years. In two issues, appellant contends that the court erred 

by overruling his motion to suppress his confession and in admitting inflammatory photographs at sentencing. 

 We overrule appellant=s issues and affirm the judgment.

BACKGROUND

The record before us consists of the testimony at a hearing on appellant=s motion to 

suppress. We summarize the testimony as follows: On October 25, 2000, after watching pornography and 
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listening to music by Marilyn Manson and the band Six Feet Under, appellant invited the fourteen-year-old 

complainant to see the shed in his backyard, which he had decorated with barbed wire, an upside-down 

cross, and satanic verses and sayings scrawled in magic marker on the walls. Once inside the shed, 

appellant asked the girl to write something on the walls. As she began to write, appellant hit her on the back 

of her head with a cinder block. He then held her down and stabbed her in the neck. When she tried to 

scream, he put his fist in her mouth. At some point in the attack, he inserted his fingers into the neck wound, 

banged her head against the concrete floor, and bludgeoned her with a baseball bat.

As she pleaded for her life, appellant began pacing in and out of the shed. To quiet her 

continued pleas, he told her he would go for help. Over the next several hours, appellant exited and 

returned to the shed three times, each time telling her he tried but was unable to find help. As he deliberated 

whether he should kill her, he developed a cover story. Appellant told the complainant that, if she agreed to 

go along with the story and not turn him in, he would take her to the hospital. The complainant agreed and 

appellant then relayed to his mother the story that he found the complainant in an alley, at which time they 

transported her to the hospital.

The complainant remained in the hospital for several days, suffering from stab wounds to her 

neck and lacerations to her head. Sergeant Sharon Kamper of the Fort Worth Police Department visited 

the complainant in the hospital. At the time of Kamper=s first visit, the complainant was fearful and unable to 

speak because of the wounds to her throat. When she did speak to Kamper, she initially reported the story 

appellant devised and she had agreed to tell.
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Sergeant Kamper also interviewed appellant. Appellant told her that he had found the 

complainant in an alley where she had been left for dead by unknown attackers. When Kamper confronted 

appellant with the lack of physical evidence in the alleyCconsidering the complainant had lost so much 

bloodCappellant could not explain it. Kamper then re-interviewed the complainant. After telling Kamper, 

AHe=s going to kill me,@ the complainant told Kamper about the assault in the shed.

Acting on the complainant=s information, Sergeant Kamper and Officer Wayne Browning, 

along with other Fort Worth police officers, arrested appellant at approximately 8:00 p.m. on October 28 at 

his home where he lived with his mother. Both Sergeant Kamper and Officer Browning testified that Officer 

Browning advised appellant of his rights at the time of his arrest before he was transported to the police 

station. See Miranda v. Arizona, 384 U.S. 436, 467-76 (1966); see also Tex. Code Crim. Proc. Ann. 

art. 38.22 (West 1979 & Supp. 2002). At the police station, appellant agreed to give a statement and 

Sergeant Kamper again advised him of his rights. She asked him to put in writing what he told her and he 

complied with her request.

Sergeant Kamper gave appellant a statement form with the Miranda and article 38.22 

warnings at the top of the page. She testified that he followed along as she read aloud the warnings on the 

form. On a separate form, appellant initialed each of the warnings and signed an acknowledgment that he 

understood his rights and voluntarily waived them. Approximately one hour after being taken into custody, 

appellant began writing out a four-page statement. Sergeant Kamper testified that she left appellant alone in 

a room for approximately three hours while he wrote out his statement in which he explained, AI always had 

an urge to find out what it would be like to kill somebody.@ He described in vivid detail his lengthy assault 
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on the complainant. He also described his thoughts in the hours following the assault: AI decided not to kill 

her and then started thinking about a story to cover my tracks and then shared this with her and had her 

agree not to turn me in and she did. I then agreed to help her.@

Officer Browning testified that he transported appellant to the Tarrant County jail after 

appellant had completed the statement. While they were waiting in the sally port at the threshold of the jail 

door, appellant turned to Officer Browning and asked: ADo you know what I learned today?@ When the 

officer asked him AWhat?@, appellant replied: AI learned that I=m not into cannibalism, and I thought I would 

be, and I also learned that next time don=t leave anyone alive to testify against me.@

DISCUSSION

Motion to Suppress

By his first issue, appellant contends his written statement should have been suppressed 

because Sergeant Kamper promised him leniency in return for his confession and that the statement was 

therefore involuntary. The State responds that it made no promises to appellant and the trial court=s ruling is 

supported by the record. We review a trial court=s ruling on a motion to suppress evidence for an abuse of 

discretion. Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In this review, we defer to 

the district court=s factual determinations but review de novo the court=s application of the law to the facts. 

See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Where the district court does not 

make explicit findings of fact, we review the evidence in the light most favorable to its ruling and assume that 

it made implicit findings that are supported by the record and buttress its conclusion. Carmouche v. State, 

10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).
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Appellant testified at the hearing that he was not advised of his rights before giving his 

statement. Acknowledging that he did not recall Kamper=s specific words, appellant explained that 

Asomewhere along the lines there she asked or she mentioned that it would help me along the lines, 

probablyCI believe she was referring to punishment-wise. By writing this statement, it would help me. That 

was basically it.@ Appellant testified that it was this Apromise@ that induced him to give the statement. On 

cross-examination, appellant testified:

[Appellant]: [W]hen she said that writing the statement would help me, I knew that not 

physically from her, but through the court that the statement would help me 

in court, that it would help lessen my time, and a better deal would be 

brought to me.

[Prosecutor]: So you=re not saying that she promised you anything personally?

[Appellant]: Correct.

[Prosecutor]: You=re saying that she made a suggestion that if you confessed that it might 

ultimately help you down the road?

[Appellant]: Yes.

[Prosecutor]: But you understood she was not in control of that?

[Appellant]: Correct.

Sergeant Kamper testified that Officer Browning Amirandized@ appellant at the time of his 

arrest and that she read him his warnings before she interviewed him at the police station. She testified 

unequivocally that she did not make appellant any promises of leniency, and that she specifically advised him 

of his right not to give a statement because it could be used against him. Officer Browning testified that he 
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heard Sergeant Kamper advise appellant of his rights and that he did not hear her suggest appellant would 

be treated leniently if he gave a statement.

Before giving the written statement, appellant received complete warnings and

acknowledged that he understood those warnings. Moreover, the form contained the following waiver of 

rights language: AI have read and understand my legal rights as stated above on this document. I freely, 

voluntarily and knowingly waive these legal rights, and agree to be interviewed by police.@ Appellant=s 

signature appears immediately below the waiver of rights. Appellant does not contend that he did not 

understand his rights.

AAt a suppression hearing, the trial court is the sole judge of the credibility of witnesses and 

the weight of their testimony.@ Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). We will not 

disturb the trial court=s findings if those findings are supported by the record. Id. When the findings are 

supported by the record, as here, we consider only whether the trial court properly applied the law to the 

facts. Id. We conclude the evidence supports the trial court=s implied finding that the State did not promise 

appellant leniency. Thus, his argument that the written statement was involuntary is without merit. 

Accordingly, we hold that the trial court did not abuse its discretion by admitting the statement. See 

Balentine v. State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002). We overrule appellant=s first issue.

Photographs

In his second issue, appellant contends the trial court erred in admitting crime scene 

photographs during the punishment/sentencing phase of the trial. Specifically, he urges that the probative 

value of photographs of the crime scene depicting a poem entitled ASatan=s Palace,@ cartoon drawings of a 
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decapitated female, the cinder block used in the offense, barbed wire, and blood stains were outweighed by 

their prejudicial effect. See Tex. R. Evid. 403. We disagree.

Evidence is relevant if it has Aany tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would be without the 

evidence.@ Tex. R. Evid. 401. The admission of photographs into evidence is within the discretion of the 

trial court and will not be disturbed absent an abuse of that discretion. See Wyatt, 23 S.W.3d at 29. Rule 

of Evidence 403 requires that, to be admissible, a photograph must have some probative value which must 

not Abe substantially outweighed by its inflammatory nature.@ Rojas v. State, 986 S.W.2d 241, 249 (Tex. 

Crim. App.1998) (quoting Long v. State, 823 S.W.2d 259, 272 (Tex. Crim. App. 1991)). When making 

this determination, relevant factors to consider include: the number of exhibits offered, their gruesomeness, 

detail, size, whether they are in color, are close-up shots, whether the body is naked, the availability of other 

means of proof, and other circumstances unique to the individual case. Id.

Appellant does not identify which of the twenty crime scene photographs admitted into 

evidence are unduly prejudicial. Even if we assume the complained-of photographs are the ones to which 

he lodged objections in the trial court and that the issue is properly briefed because of this failure to specify 

the photographs, see Tex. R. App. P. 38.1(h), we conclude that the photographs are admissible. Appellant 

urges that the photographs are Adisturbing,@ Agruesome,@ and Ashocking,@ and are certain to have a 

Aprejudicial effect@ on the sentencing judge. While the photographs are grotesque and certainly disturbing, 

none of them portray the complainant=s wounds or injuries, or are of the type of photographs generally 

excluded. Cf. Mathis v. State, 67 S.W.3d 918, 930 (Tex. Crim. App. 2002) (ABut when the power of the 
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visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that 

the trial court has abused its discretion merely because it admitted the evidence.@); Ripkowski v. State, 61 

S.W.3d 378, 391 (Tex. Crim. App. 2001) (AAlthough appellant also claims unfair prejudice, we find that 

the videotape simply reflects the gruesomeness of the crimeCand that is not a sufficient reason for excluding 

the evidence.@); Rojas, 986 S.W.2d at 249. Appellant claimed to be a ASatanist,@ and his objection relates 

to the admission of photographs depicting his lifestyleCas exhibited on the walls of the shedCand the 

objects used to inflict injuries on the complainant. After reviewing the photographs, we hold that the trial 

court did not abuse its discretion in admitting the exhibits. We overrule appellant=s second issue.

CONCLUSION

Having overruled appellant=s issues, we affirm the judgment of conviction.

 

Jan P. Patterson, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: June 13, 2002

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