Opinion
NO. 09-16-00384-CR
11-15-2017
JOHN WILLIAM JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 1A District Court Newton County, Texas
Trial Cause No. ND-0724
MEMORANDUM OPINION
John William Johnson ("Appellant") was indicted for the offense of aggravated robbery with the use of a deadly weapon. See Tex. Penal Code Ann. § 29.03 (West 2011). The jury found Appellant guilty of the lesser-included offense of attempted aggravated robbery and assessed punishment at twenty years' confinement. In two issues, Appellant appeals his conviction. We affirm.
Pretrial Hearings
May 2016 Hearing
On May 12, 2016, Appellant filed a Motion to Exclude, asking the trial court to exclude from evidence statements of the defendant that do not comply with article 38.22 of the Texas Code of Criminal Procedure. Appellant also asked the court to exclude audio and video recordings of the defendant or the alleged crime scene that had not been produced to the defense thirty days prior to trial. In his memorandum in support of the Motion to Exclude, Appellant argued that, while he was in custody of the Newton County Sheriff's Department, a statement was obtained from him, and the statement on its face did not reflect that Appellant had knowingly, intelligently, and voluntarily waived his rights in accordance with section 2, article 38.22. Appellant also filed a Motion to Determine Admissibility of Statement, a Motion to Suppress Statements, and a Motion to Suppress, wherein he argued that the statements obtained from him by the Newton County Sheriff's Department did not comply with article 38.22 and should be suppressed. On May 16, 2016, the court held a hearing on the motions. Appellant was not available for the hearing because he was in trial in another county. Defense counsel argued that
. . . nowhere on the face of [Johnson's statement] . . . does it say that Mr. Johnson knowingly, intelligently, and voluntarily waived his rights outlined in the Section 38.22 of the Code of Criminal Procedure.
That is -- that is the crucial wording that has to be contained within the face of the statement, within the four corners.According to defense counsel, the failure to use the specific wording of article 38.22 rendered Appellant's statement "fatally defective on its face." The State argued whether a person has knowingly, intelligently, and voluntarily waived his rights is not dependent of an express waiver but may be inferred from the totality of the circumstances.
. . . .
That particular wording [on the form used for Appellant's statement] does not state freely and voluntarily and intentionally, intelligently waive my rights above nor in the statement does it say that he waives his rights as outlined in 38.22 because on the face of the statement it fails to have that specific wording.
Defense counsel also informed the court that he had gone to the DA's office to get a copy of a video recording from the convenience store where the offense allegedly occurred, but the video could not be opened except on one computer in the courthouse. The State responded that it could not open the video either, it did not intend to introduce the video into evidence, and it intended to offer photos taken of the video. The State also explained that "we said that we have an open file policy. . . . That means you can come at any time and review what we have." According to the State, it had produced the photos to the defense, but the defense stated it had not received them.
At the conclusion of the hearing, the court explained that the technical problems with the videotape were "not any reflection on the State." The court instructed the parties to cooperate in having an IT person look into the problem and ordered the videotape "produced no later than 30 days before trial." The court declined to make any other rulings and set a date for another pretrial hearing to address the motions. On June 16, 2016, the trial court signed an order denying Appellant's Motion to Suppress Statements. Thereafter, Appellant filed a Motion to Reconsider the Motion to Suppress.
July 2016 Hearing
The court held a second hearing on pretrial motions on July 7, 2016, during which the court heard the motion to reconsider. A copy of a statement made by Appellant dated December 1, 2014, was admitted. Appellant testified at the hearing. According to Appellant, he was served on December 1, 2014, with warrants on two other Jasper County charges at his parents' home in Kirbyville, where he was living at the time. Appellant testified that the three officers who served the warrants did not place him under arrest. Appellant explained that the officers took pictures of and seized his truck. According to Appellant, the officers said they were taking him to the police station, and he agreed he had to get into a patrol car. Appellant testified that he was at the police department "about an hour[]" and that officers Cynthia Hall and Morgan Downs questioned him about a November 22 incident at a convenience store. Appellant explained that Deputy Hall asked him if he would give a statement, and he denied that she gave him any Miranda or other warnings. According to Appellant, Hall provided him a form to write out a statement, which she did not read to him, and officers Josh Hancock, Paul Brister, and Morgan Downs were also in the room when Hall gave him the form. Appellant explained that the officers were in the room with him while he wrote the statement, which took "about 20 to 30 minutes." Appellant denied that anyone gave him instructions as to where to sign or initial the form, that anyone read his statement to him prior to signing, or that anyone gave him a copy of his written statement. Appellant testified that after he completed writing the statement, "[t]hey just walked me out to Officer Hancock's patrol car and took me straight to the Jasper County Jail[]" where he was booked. Appellant further denied that anyone explained that, in writing a statement, he waived his rights, and he testified that if the form had stated he waived his rights, he would not have signed it.
On cross-examination, Appellant agreed that the form on which he wrote a statement included the following and that he wrote his initials next to each:
I have the right to remain silent. I do not have to answer any questions, make any statements at all, that anything that I may say can and will be used against me in a court of law.
. . . .Appellant also agreed that the form included the following:
Any oral or written statement I make can and will be used as evidence against me in a court of law[.]
. . . .
I have the right to have my lawyer present to advise me before and during any questioning by peace officers or attorneys representing the State.
. . . .
If I am too poor to hire a lawyer, then the Court will appoint a lawyer for me free of charge and he can advise me before and during any questioning.
. . . .
I can talk to anyone, and I can stop talking to him or her at any time I want[.]
. . . .
The above rights are continuing rights which can be urged by me at any stage of the proceedings[.]
I declare that the following voluntary statement that I am making to Chief Deputy Cynthia Hall is being made of my own free will, without promise of hope of reward, favor or offer of favor, without leniency or offer of leniency by any person or persons whomsoever.Appellant further agreed that he chose to make the statement, he did not tell anyone he wished to remain silent, he did not say he did not want to answer questions, he willingly answered questions and wrote down answers, he did not ask for an attorney, he voluntarily agreed to write the statement, he did not ask to remain silent, and he waived his right to remain silent. The following exchange occurred:
[State's attorney]: So, even though all these are on here, you read and initialed them, that you understood them; and you continued on and voluntarily made the statement, therefore, you waived those rights?
[Johnson]: Yes.
The State called Deputy Cynthia Hall to testify. Hall testified that she helped investigate the case and that she questioned Appellant. When asked whether she gave him Miranda warnings, Hall replied
It's been two years. I'd have to look back over it. I would have to. I remember giving him the voluntary statement, but I don't remember if I read that out loud to him.Upon being shown the probable cause affidavit she signed, Hall agreed that the affidavit reflected that Appellant had been given Miranda warnings and he understood his rights. On cross-examination, Hall testified that she did not remember whether she read the form to Appellant when she gave it to him. Hall agreed that she, Officer Downs, Officer Hancock, and Chief Brister were present while Appellant filled out the form. On July 14, 2016, the court signed an Order Denying Defendant's Motion to Suppress.
Trial
Johnson's jury trial began on July 25, 2016. The State called three witnesses, and the defense called no witnesses.
Testimony of Deputy Cynthia Hall
The State called Deputy Cynthia Hall to testify at trial. Hall testified that on November 22, 2014, Newton County dispatch put out a call concerning a robbery at a convenience store. According to Hall, when she arrived, she observed the clerk "running around in circles. She was all upset." Hall explained that the clerk said the man in the store had on a mask, but the clerk could see the man's hands, and also reported the man's vehicle as a light-colored, four-door pickup truck. Hall also explained that she obtained a written statement from the clerk that day but she did not attempt to dust for fingerprints.
Hall testified that the store had a surveillance camera system, and she viewed the video from that day, but she was unable to obtain a copy that could be played at trial despite having requested the video "[s]everal times." Hall explained that she did not obtain a warrant to seize the store's computer because the store owner had said his only security system was on the computer. According to Hall, she used her cell phone to take still photos of the surveillance video. Hall agreed that State's Exhibit 2 was a photo of the surveillance video and she took the photo with her cell phone, and that it was a fair and accurate depiction of what she observed on the video. But Hall also agreed that she could not represent that the images on the surveillance video itself were accurate.
The defense objected that "they're taking pictures of a picture of a video of a monitor and have not been able to establish the authenticity . . . of the original or the master copy and have not been able to produce it[.]" The defense also objected that the State needed "to establish the predicate for the enhancement of a video or digital picture, who enhanced it, what procedure was used to enhance it." Defense counsel agreed that he had seen the surveillance video, but explained that he was not provided a copy that he could take to an expert, and the failure of the State to produce the surveillance video violated a discovery order. The defense also agreed that the State had produced the photos the State was attempting to introduce into evidence but argued that the photographs were enhancements, close-ups, or enlargements, and because the State had not established what program or software was used to make the enhancements, no proper predicate had been established and the photographs were not properly authenticated.
The State told the court that Deputy Hall had observed the surveillance video and the photo depicted what she observed on the surveillance video monitor on the day of the incident. The State further explained
. . . the video is not available and we did not have original of the video. The video that we did have we did make available and [defense counsel] had a chance to view it and at any time he could have viewed it again. That's the only video that we did have, and we are not able to play it. We were not able to get anything else off the hard drive. I think there was some issues with their -- the store's tech guy lives off somewhere maybe. They were not able to give us anything.The State also maintained that Rule of Evidence 1002 concerning the use of originals was satisfied because the photographs "are our original pictures that are our evidence that we're wanting to introduce."
The court noted the defense objections and explained that the State "tried [to produce the video] and apparently could not." The court further explained:
. . . if the witness can prove up that these are the pictures that she saw and that she -- and these are pictures that were taken that day, I'm going to let her testify to that and prove them up like I would a normal picture. And it's -- that is what it is.
. . . .
If we're talking about proving up the fact that she took these pictures off of this monitor, that's what she saw and the jury can take that for what they may, I feel certain she could take a picture of a monitor and say, you know, as long as it's relevant, this is what she saw that day and I'm gonna allow her to do that.
State's Exhibits 2-4 and 6-9 were admitted into evidence, and Hall testified that the exhibits were photos of the surveillance video that she took with her cell phone and they were fair and accurate depictions of what she observed on the monitor.
Hall testified that State's Exhibit 2 depicted "a white Ford 150 four-door pickup truck[]" that had certain identifying features, including
. . . a stripe that goes down under the windows. There's also a light emblem that's in the back of the pickup on the window, the middle of the window, and also the 22-inch rims.According to Hall, the truck had no license plate. Hall agreed that, based on the store clerk's account of what happened, the truck pictured "was used as a getaway vehicle[.]" Hall described the photos in State's Exhibits 3, 4, and 6 as depicting a white male suspect coming through the door, wearing jeans with holes, work boots, a dark-colored hoodie, and no gloves. Hall testified that State's Exhibit 7 shows the suspect "over the counter with what appears to be a large kitchen knife[]" and that the suspect appeared to be white. Hall explained that State's Exhibit 8 shows the store clerk coming into the store from the kitchen and also depicts the suspect with a knife, "lean[ed] over looking at the clerk." And Hall described State's Exhibit 9 as showing where the clerk hit "the panic button[]" and the suspect pointing his knife at the clerk. Hall also testified that the suspect appeared to be male.
According to Hall, after about four days, the investigation had not produced anything, so she published a photo of the truck in the news, which yielded some tips. Hall agreed that the Appellant was then identified as a possible suspect. Hall testified that law enforcement went to Appellant's address, where a family member spoke with Chief Brister and gave the officers permission to search the property for vehicles. Hall identified the photographs in State's Exhibits 10, 11, and 12 as fair and accurate depictions of the white, four-door pickup truck found at Johnson's home that day, and she testified that the plates to the truck showed it was registered to the Appellant.
Hall explained that the officers obtained consent to enter Appellant's bedroom, where they found jeans and work boots that appeared to match what Hall observed in the surveillance video. According to Hall, Appellant's wife identified the jeans and boots as what he had worn that day.
Hall testified that Appellant was at the house that day, and she regarded him as the "main suspect" in the case. Hall explained that the officers asked Appellant to accompany them to the Kirbyville police station, and that he agreed and was cooperative. She recalled that he was not handcuffed and not under arrest, and he willingly got into Chief Brister's patrol vehicle. Hall testified that Miranda warnings were read to Appellant, he signed the Miranda warnings, and he told her he would give a written statement although she had not asked him to. Hall recognized State's Exhibit 15 as a Sworn Voluntary Statement prepared on December 1, 2014, which contained the constitutional rights that had been explained to him and which used the form used for all statements. According to Hall, Appellant had an opportunity to read the warnings and he initialed each one of them. Hall agreed that after Appellant wrote a statement, he had a chance to read it over and make changes, but he did not request any changes prior to signing the statement. Hall explained that she stayed in the room the whole time Appellant was writing his statement, Chief Brister was also in the room when she read the Miranda warnings, and Sergeants Hancock and Downs were in the room some of the time. The defense again objected to State's Exhibit 15, arguing it did not comply with article 38.22, and the court overruled the objection and admitted the exhibit. Hall read the warnings aloud to the jury and stated that Appellant had initialed each. According to Hall, Appellant was not under duress, she did not threaten him, and he was cooperative. Hall read Appellant's statement as follows:
I, John Johnson, and Tyrone Wysingle [were] riding around the morning of November the 22nd, 2014, and we were smoking amphetamines and we ran out, so we stopped at the convenience store in Trout Creek in an attempt to score some more cash. I entered the store and attempted to rob the store but the clerk pushed the panic button and I left the store and we headed back to Tyrone's house on County Road 569 in Kirbyville where Tyrone took the knife and placed it in a backpack and took it in the storage building that is behind his girlfriend's daddy's house, and after that I left and went back to my dad's house in Kirbyville at 508 South Herndon. And the sticker -- the sticker on the back glass of my truck was already peeling off and my two little girls was playing in the back of my truck and peeled the sticker off and after they were done playing, I finished peeling the sticker off, signed at 4:30 p.m., this 1st day of December, 2014, signed John Johnson and witnessed by Sergeant Morgan Downs.When asked whether he explained why he robbed the store, Hall explained:
He said they had been taking methamphetamines for a couple of days and they had run out and they wanted to get some more, so that's why they had got together, was gonna rob the store.Hall testified that after Appellant gave a written statement, he was taken to the Jasper County Jail. Hall identified Appellant as the person who wrote out the statement. Hall testified that, based on watching the surveillance video, it was clear to her that a knife was used in the incident, but she explained that she was never able to locate the knife. According to Hall, her investigation determined that nothing was actually stolen during this offense and no bodily injury occurred.
. . . .
They needed money.
Testimony of Gloria Apaza
Gloria Apaza testified that she works at a grocery store in Newton County. Apaza testified that she was working at the store on November 22, 2014, when a person wearing a black mask and a hoodie entered the store, showed "a big knife" and said "Give me the money." Apaza explained she responded "I don't have money[]" and she pushed the panic button at the counter to call the police. According to Apaza, when the man saw her reaching for the panic button, he turned around, left the store, and drove away in a white truck. Apaza testified that she recognized the truck pictured in State's Exhibit 2 as the truck she saw that day, and she testified that she saw the truck outside the store for a "long time[,]" about twenty to thirty minutes, prior to the man entering the store. Apaza explained that she looked for the truck's license plate as the truck drove away, but that there was no license plate on the truck. According to Apaza, when the man pulled his mask, she could see his skin was white.
Apaza explained that she spoke with police when they arrived at the store and she gave them a statement, which she recognized as State's Exhibit 16. Apaza agreed that State's Exhibits 7, 8, and 9 were fair and accurate depictions of the man she saw that day, and she identified a knife in Exhibits 7 and 9. Apaza testified that she was scared and was shaking a little when she saw the man with the knife. According to Apaza, nothing was taken from the store and she was not hurt.
Apaza recalled talking to Deputy Hall the day of the incident and showing her the surveillance video. When asked whether Hall took pictures of the video with her camera, Apaza replied "I think so."
Testimony of Police Chief Paul Brister
Paul Brister, the Chief of Police for the Kirbyville Police Department, testified that he became involved with this case when he received information that the Appellant's truck was used in the robbery and then received a request to escort Deputy Hall to the suspect's residence. According to Brister, upon arriving at the residence, he was first told that Appellant was not there, and Brister then asked Appellant's mother whether his truck was located on the property. Brister testified that the mother told him that the truck might be there and she did not object to him looking. Brister testified that the vehicle pictured in State's Exhibits 10 and 11 depicts the white Ford F-150 truck they found at the property that day, and he explained that the truck showed an outline on the windshield where a sticker had been removed. Brister explained that, after speaking with the mother again, she informed him that Appellant was inside the residence, and Brister instructed her to ask him to come out and speak with the officers. Brister further testified that when he asked Appellant to accompany him to the Kirbyville Police Department, he agreed to do so.
According to Brister, the Newton County Sheriff's Office interviewed Appellant, and Brister was present for part of the interview and heard Appellant being informed of his Miranda rights. Brister testified that Appellant agreed to give a statement that was voluntary, he was not coerced or threatened, and he was "very cooperative." Brister explained that there was no audio or video equipment available to record the interview.
The defense called no witnesses. The jury instruction included the following regarding the defendant's written statement:
You are instructed that our law provides that you should not consider as evidence any statement made by the Defendant, or any evidence obtained as a result of such statement, unless the evidence convinces you beyond a reasonable doubt that the statement was made voluntarily by the Defendant. Therefore, unless you find from the evidence beyond a reasonable doubt that the alleged statement of the Defendant was made voluntarily, or if you entertain a reasonable doubt as to whether it was made voluntarily, you shall not consider such statement for any purpose whatsoever, nor shall you consider any evidence obtained from such statement.
Our law provides that no written statement made by an accused as a result of custodial interrogation is admissible as evidence against him in any criminal proceeding unless it is shown on the face of the statement that:
(a) the accused, prior to making the statement, either received from a magistrate the warning provided in Article 15.17 of the code or received from the person to whom the statement is made a warning that:
(1) he has the right to remain silent and not make any statements at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time; and
(b) the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning prescribed above.
Our law further provides that the above warnings may be waived by a written declaration appearing on the face of such statement wherein the accused, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived the rights set out in the warning above or taking into consideration the totality of circumstances surrounding the giving of such statement.
If you find, by a preponderance of the evidence, that the Defendant, did not knowingly, intelligently and voluntarily waive the rights and warnings in the statement, you shall disregard such statement and not consider it for any purpose in this case.
The jury found Appellant guilty of the lesser-included offense of attempted aggravated robbery and assessed punishment at twenty years' confinement. Appellant filed a motion for new trial, arguing that "[t]he trial Court erred in allowing certain photographs into the evidence in this case and also erred in allowing the involuntary statement made by John William Johnson into the evidence in this case." The motion was denied by operation of law. See Tex. R. App. P. 21.8(c). Appellant timely filed a notice of appeal.
Admission of Defendant's Statement
Appellant's first issue argues that the trial court erred in failing to suppress the "allegedly 'voluntary' confession" that did not meet the requirements of article 38.22 of the Code of Criminal Procedure. Appellant argues that his written statement on its face failed to state that he knowingly, intelligently, and voluntarily waived his rights and the form used failed to track the language of article 38.22, section 2. Appellant argues that the statement was a custodial statement because the circumstances "rapidly escalated into a situation where a reasonable person would not believe he was free to leave." In addition, he argues that the court did not make an "independent finding" as to whether his statement was voluntary and the court did not issue findings of fact.
Standard of Review
We review a trial court's ruling on a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010). We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of the law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). At a suppression hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony, and a trial court may choose to believe or to disbelieve all or any part of a witness's testimony. Valtierra, 310 S.W.3d at 447; Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007) (quoting State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999)); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
In reviewing the trial court's ruling, the appellate court does not engage in its own factual review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts, "especially if those are based on an assessment of credibility and demeanor." Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). We give the same deference to the trial court's conclusions with respect to mixed questions of law and fact that turn on credibility or demeanor. State v. Ortiz, 382 S.W.3d 367, 372 (Tex. Crim. App. 2012). We apply a de novo review to legal questions, as well as mixed questions of law and fact that do not turn on credibility and demeanor. State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011); Crain, 315 S.W.3d at 48.
In the absence of any findings of fact, either because none were requested or none were made by the trial court, an appellate court must presume that the trial court implicitly resolved all issues of historical fact and witness credibility in the light most favorable to its ultimate ruling. State v. Elias, 339 S.W.3d 667, 674 (Tex. Crim. App. 2011) (citing Ross, 32 S.W.3d at 856-57); see also Aguirre v. State, 402 S.W.3d 664, 667 (Tex. Crim. App. 2013) (Cochran, J., concurring) ("in the absence of specific findings, an appellate court's hands are tied, giving it little choice but to 'view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record[]'") (quoting Ross, 32 S.W.3d at 855). We afford the prevailing party the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence. State v. Duran, 396 S.W.3d 563, 571 (Tex. Crim. App. 2013). We uphold the trial court's ruling if it is reasonably supported by the record and is correct on any theory of law applicable to the case. State v. Story, 445 S.W.3d 729, 732 (Tex. Crim. App. 2014); Arguellez v. State, 409 S.W.3d 657, 662-63 (Tex. Crim. App. 2013); Ross, 32 S.W.3d at 855.
Article 38.21
Under article 38.21, "[a] statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed." Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). Article 38.22 provides the framework for when statements may be used. Written statements made as a result of custodial interrogation will be inadmissible against the defendant if the defendant did not receive, prior to making such a statement, the warnings informing him that:
(1) he has the right to remain silent and not make any statement at all and that any statement he makes may be used against him at his trial;
(2) any statement he makes may be used as evidence against him in court;Id. art. 38.22, § 2(a) (West Supp. 2016). The legislature also included the following clarification expressly allowing statements to be used in the following circumstances:
(3) he has the right to have a lawyer present to advise him prior to and during any questioning;
(4) if he is unable to employ a lawyer, he has the right to have a lawyer appointed to advise him prior to and during any questioning; and
(5) he has the right to terminate the interview at any time[.]
Nothing in this article precludes the admission of a statement made by the accused in open court at his trial, before a grand jury, or at an examining trial in compliance with Articles 16.03 and 16.04 of this code, or of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.Id. art. 38.22, § 5.
We cite to the current version of statutes herein as subsequent amendments do not affect our analysis.
The defendant bears the initial burden at trial of proving that a statement was the product of custodial interrogation. See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007). A trial judge's ultimate determination regarding custody is a mixed question of law and fact. See id. (citing Thompson v. Keohane, 516 U.S. 99, 112-13 (1995)). "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 v. Arizona, 384 U.S. 436, 444 (1966). In determining whether a defendant was "in custody" for the purpose of applying Miranda, an appellate court "conducts a factual review in examining the circumstances surrounding the interrogation" and "makes an ultimate legal determination whether a reasonable person would not have felt at liberty to leave." State v. Saenz, 411 S.W.3d 488, 496 (Tex. Crim. App. 2013) (citing Thompson, 516 U.S. at 112-13). "A person is in custody if, under the totality of the circumstances, a reasonable person would believe his freedom of movement was restrained to the degree associated with a formal arrest." Houston v. State, 185 S.W.3d 917, 920 (Tex. App.—Austin 2006, pet. ref'd) (citing Stansbury v. California, 511 U.S. 318, 322 (1994); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996)); see also Saenz, 411 S.W.3d at 493 (citing Stansbury, 511 U.S. at 322).
The Court of Criminal Appeals has described "at least four general situations that may constitute custody:"
(1) when the suspect is physically deprived of his freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that he cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave.Saenz, 411 S.W.3d at 496 (quoting Dowthitt, 931 S.W.2d at 255). The first three situations "require that the restriction on a suspect's freedom of movement must reach 'the degree associated with an arrest' instead of an investigative detention." Id. (quoting Dowthitt, 931 S.W.2d at 255). Although the fourth situation "requires an officer's knowledge of probable cause to be manifested to the suspect[,]" custody is not established unless that manifestation of probable cause "'combined with other circumstances' of the interview, such as duration or factors of 'the exercise of police control over [a suspect],' would lead a reasonable person to believe that he is under restraint to the degree associated with an arrest." Id. (quoting Dowthitt, 931 S.W.2d at 255-57).
Analysis
Initially, we note that the appellate record includes no evidence that Appellant objected at trial that the trial court failed to make an independent finding regarding whether his statement was voluntary and did not issue findings of fact. Therefore, Appellant has not preserved error on these arguments. See Tex. R. App. P. 33.1. Neither has Appellant cited to any authority requiring the trial court to make findings of fact in the absence of a request by a party. See Tex. R. App. P. 38.1(i).
In asking this court to review the voluntariness of the statement, Appellant urges this Court to refrain from using the totality of the circumstances test because he contends that standard has not been included in article 38.22. The Court of Criminal Appeals, however, has made clear that custody determinations must consider all the objective circumstances. See Dowthitt, 931 S.W.2d at 254-55; see also Delao v. State, 235 S.W.3d 235 (Tex. Crim. App. 2007). We reject Appellant's argument that we apply a different standard.
Appellant's memorandum in support of his motion to suppress argued that he was in custody when Deputy Hall obtained his statement. At a pretrial hearing, however, Appellant testified that the officers who served warrants did not place him under arrest and that "I never was told I was under arrest." Appellant also testified that he gave a statement without threat of harm, without coercion, and without the promise of any favor or leniency. Although Appellant testified that multiple officers were present while he was writing his statement, he did not testify that he did not feel free to leave. Deputy Hall testified that Appellant had been informed of and understood his rights.
Moreover, Appellant testified that he signed and initialed various written warnings informing him of his rights, he voluntarily agreed to give a written statement, and he waived his right to silence. The appearance of his initials next to each warning and his signature on the final page are evidence that he read and understood the written warnings in accordance with article 38.22. See Garcia v. State, 919 S.W.2d 370, 386 (Tex. Crim. App. 1996) (noting that initials and signature are evidence of waiver of legal rights). The title of his statement, "Sworn Voluntary Statement[,]" is further evidence that he voluntarily waived his rights. See Cannon v. State, 691 S.W.2d 664, 674 (Tex. Crim. App. 1985) (statement titled "Voluntary Statement" and stating that rights were "voluntarily waived" complied with article 38.22 § 2(b)).
Warnings that convey the same meaning as the statute are sufficient to comply with the statute even if the warnings use slightly different language than the language in article 38.22. See Nonn v. State, 41 S.W.3d 677, 679 (Tex. Crim. App. 2001); Garcia, 919 S.W.2d at 386-87; Penry v. State, 691 S.W.2d 636, 643 (Tex. Crim. App. 1985); Eddlemon v. State, 591 S.W.2d 847, 850 (Tex. Crim. App. [Panel Op.] 1979). We find no article 38.22 infirmity, and we conclude that the trial court did not err in denying Appellant's motion to suppress. We overrule Appellant's first issue.
Admission of Photographs
In his second issue, Appellant argues that the trial court erred in admitting certain photos, which were hearsay within hearsay, unauthenticated, and enhanced in an unknown manner. Appellant also argues that it was error to admit the photos because neither the originals nor verified copies had been produced. Specifically, Appellant challenges the admission of State's Exhibits 2-4 and 6-9. Because Appellant bases this point of error on more than one legal theory, his point of error is multifarious and could be overruled on this basis. See Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010) (citing Tex. R. App. P. 38.1.). In the interest of justice, however, we will review his arguments. See id.
We review a trial court's decision to admit evidence under an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). The trial court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement." Id. A trial court's ruling will be upheld provided that the trial court's decision "is reasonably supported by the record and is correct under any theory of law applicable to the case." Carrasco v. State, 154 S.W.3d 127, 129 (Tex. Crim. App. 2005). In addition, a trial court's decision as to whether evidence is properly authenticated is also reviewed for abuse of discretion. See Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998); Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984).
To authenticate an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be. Tex. R. Evid. 901(a); see Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012) ("The preliminary question for the trial court to decide is simply whether the proponent of the evidence has supplied facts that are sufficient to support a reasonable jury determination that the evidence he has proffered is authentic."). Evidence may be authenticated by a witness with knowledge testifying that the item is what it is claimed to be. Tex. R. Evid. 901(b)(1); Kephart v. State, 875 S.W.2d 319, 321 (Tex. Crim. App. 1994). Therefore, testimony that the photograph is what it purports to be is sufficient to authenticate the photograph; the accuracy of the testimony is a question for the jury. See Tienda, 358 S.W.3d at 638 (explaining that the factfinder ultimately determines whether an item of evidence is what its proponent claims). The proponent of evidence need not rule out all possibilities inconsistent with authenticity, nor must he prove beyond any doubt that the evidence is what it purports to be. See Campbell v. State, 382 S.W.3d 545, 548 (Tex. App.—Austin 2012, no pet.); see also Segovia v. State, 467 S.W.3d 545, 551 (Tex. App.—San Antonio 2015, pet. ref'd). A trial court does not abuse its discretion by admitting evidence when it reasonably believes that a reasonable juror could find that the evidence has been authenticated or identified. See Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007); Washington v. State, 485 S.W.3d 633, 640 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
Rule 1002 provides that "[a]n original writing, recording, or photograph is required in order to prove its content unless these rules or other law provides otherwise." Tex. R. Evid. 1002.
A photograph is not an out-of-court statement. See Herrera v. State, 367 S.W.3d 762, 773 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Wood v. State, 299 S.W.3d 200, 214 (Tex. App.—Austin 2009, pet. ref'd) (citing Tex. R. Evid. 801(a)). Therefore, we reject Appellant's argument that the photos were "inadmissible hearsay."
In this case, Deputy Hall testified that she used her cell phone to take the photos in State's Exhibits 2-4 and 6-9 and that the exhibits were photos of what she saw on the surveillance video that she watched at the convenience store on the day of the incident. Hall's testimony was the testimony of a witness with personal knowledge regarding the photos and she testified that the photos accurately represented what she saw on the video. See Tienda, 358 S.W.3d at 638; Kephart, 875 S.W.2d at 321. Accordingly, the trial court's ruling that the jury could reasonably have found the challenged evidence authentic is "within the zone of reasonable disagreement." See Tienda, 358 S.W.3d at 638.
We find no support in the record for Appellant's arguments that the State failed to produce the originals. Similarly, there is nothing in the record to support Appellant's argument that "the State callously allowed the original evidence to be destroyed." Rather, the record affirmatively indicates that defense counsel agreed in open court that the State had produced the photos that the State was attempting to introduce into evidence. Furthermore, at trial, defense counsel told the court he had watched the surveillance video. The State informed the court that technical problems prevented it from making a copy of the video. The court concluded the State "tried [to produce the video] and apparently could not." On the record before us, we conclude that the trial court's admission of State's Exhibits 2-4 and 6-9 was within the zone of reasonable disagreement. We overrule Appellant's second issue.
Having overruled both of Appellant's issues, we affirm the trial court's judgment of conviction.
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on October 31, 2017
Opinion Delivered November 15, 2017
Do Not Publish Before McKeithen, C.J., Kreger and Johnson, JJ.