Opinion
No. 05-05-00306-CR
Opinion filed August 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 22658-422. Affirmed.
Before Justices MOSELEY, O'NEILL, and RICHTER.
OPINION
On his plea of not guilty, a jury convicted Dennis Bills IV of robbery. Appellant pled true to an enhancement paragraph alleging a prior conviction for aggravated robbery. The jury assessed punishment of twenty years' confinement. Initially, we sustained part of appellant's first issue, abated the appeal, and remanded the cause to the trial court to enter its findings of fact and conclusions of law regarding appellant's written custodial statement. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005); Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App. 2004). In his first issue in his amended brief, appellant contends the trial court erred by failing to suppress his custodial written statement. In his second issue, appellant argues the trial court erred by admitting certain evidence of his extraneous offenses. For the reasons that follow, we resolve appellant's issues against him and affirm the trial court's judgment.
I. BACKGROUND
There was evidence appellant and Terry Morris robbed a grocery store where appellant was employed. They had carjacked two cars earlier and used them as getaway cars after the robbery. Morris was arrested and implicated appellant. The trial court overruled appellant's pretrial motion to suppress his written custodial statement, and it was admitted.II. VOLUNTARINESS OF WRITTEN STATEMENT
In his first issue, appellant contends the trial court erred by overruling his motion to suppress his custodial written statement because the statement does not contain his knowing and intelligent waiver of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and article 38.22, section 2 of the code of criminal procedure, thus violating his constitutional and statutory rights, and was written by a police officer who requested appellant sign it. At 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). Therefore, we will not disturb the trial court's findings if those findings are supported by the record. Id. We consider only whether the trial court properly applied the law to the facts. Id. The statement of an accused may be used in evidence against him if it appears that it was freely and voluntarily made without compulsion or persuasion. Id. (citing Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005)). To determine whether a confession is voluntary, we examine the totality of circumstances surrounding its making. Id. Article 38.22, section 2 provides that no written statement made by an accused as a result of custodial interrogation is admissible unless, prior to the time the statement was made, the accused receives certain warnings from the person to whom the statement was made, and the accused "prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived" those rights. Tex. Code Crim. Proc. Ann. art. 38.22, § 2. Miranda provides for similar procedural protections against self-incrimination in custodial interrogations. Paraphrasing, the trial court found and concluded that appellant made a statement to police investigator Shawn Hanley; the face of the statement showed Hanley warned appellant of the rights pursuant to article 38.22, section 2; prior to and during the making of the statement, appellant fully understood his rights and freely, knowingly, intelligently, and voluntarily waived those rights; Hanley reduced appellant's verbal statements to writing at appellant's request, which did not render the making of the statement unknowing, unintelligent, or involuntary; appellant's statement was taken in accordance with his constitutional rights and rights under section 38.22; and the statement was voluntary. Thad Wilson, another investigating police officer, testified he gave appellant Miranda warnings when he arrested appellant. In addition, each page of the five-page written statement contains the warnings provided for in article 38.22, section 2, and the statement:Prior to and during the making of the statement, I have and do hereby knowingly, intelligently, and voluntarily waive the above explained rights and I do make the following voluntary statement to the aforementioned person of my own free will and without any promises or offers of leniency or favors, and without compulsion or persuasion by any person or persons whomsoever[.]Appellant, Hanley, and Wilson signed each page. We conclude the evidence supports the trial court's conclusion that the statement was made in accordance with appellant's constitutional rights and rights under article 38.22. Appellant argues his signature on each page is insufficient evidence that he knowingly waived his rights under article 38.22. He relies on the original opinion in Garcia v. State, 919 S.W.2d 370 (Tex.Crim.App. 1996) (orig. op.), which reversed a conviction on the grounds that the appellant's initials on each page of his statement constituted no evidence that he had affirmatively waived his rights under the statute. Id. at 379. The court reached that conclusion because the appellant's initials were not immediately following the warnings required by article 38.22, section 2; the opinion stated that, at best, the initials only indicated that he had read and understood those warnings. Id. However, appellant's reliance on Garcia is misplaced. On rehearing in that case, the court reversed its position and affirmed the conviction, reasoning that appellant's initials on each page (beside each warning), taken in context with additional language found at the bottom of each page (near the appellant's signature), was sufficient evidence that the appellant had waived the statutory protections. Id. at 386-87 (op. on reh'g). Moreover, as long as the statement is voluntary, law officers are permitted to reduce an accused's oral statements to writing and are allowed to paraphrase the statements; as long as the warnings appear on the written statement, it is admissible. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.Crim.App. 1995). Accordingly, we reject appellant's argument that the requirements of article 38.22, section 2 were not met because the statement was written by Hanley, not appellant. At the pretrial hearing, appellant confirmed that the only two grounds on which he urged suppression were that the statement was not in his handwriting and it was based on a co-defendant's testimony with no other corroboration. Consequently, we need not address appellant's arguments that the statement was involuntary due to (1) Hanley's failure to ascertain appellant's educational background or his ability to read, write, and understand English; (2) appellant's signing and initialing each page when Hanley asked him to because appellant "learned in the penitentiary not to question people in authority"; (3) Wilson's absence from the interview except to witness appellant's signature; and (4) failure to meet the requirements of article 38.22, section 3(e), which applies to an "oral or sign language statement," because appellant failed to preserve error on these issues by not raising them at the suppression hearing. See Curry v. State, 910 S.W.2d 490, 495 (Tex.Crim.App. 1995) (holding failure to raise complaint as to suppression issue in motion to suppress waived complaint on appeal). Likewise, appellant failed to preserve his issue for appeal that the jury was not instructed on the voluntariness of the statement. See Azaldua v. State, 502 S.W.2d 19, 22-23 (Tex.Crim.App. 1973) (absent request for submission of issue of voluntariness of statement, no error shown). We resolve appellant's first issue against him.