Opinion
No. 05-10-00439-CR
Opinion filed August 8, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F09-14741-V.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
MEMORANDUM OPINION
A jury convicted Norris Damoan Richardson of the first degree felony offense of aggravated robbery with a deadly weapon (a firearm) of Jason Beard and assessed punishment, enhanced by a previous felony conviction, of thirty-five years' imprisonment. See Tex. Penal Code Ann. § 29.03 (West 2011). The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. Beard was leaving a staging area in his delivery truck when a car blocked his exit. The driver approached him with a handgun. Another man hit Beard with a shotgun. Beard called the police on his cell phone, and the police arrived and apprehended two of the robbers. They implicated appellant and another man. Police officers arrested appellant at his wife's home. In a search of the home, the officers found a handgun and shells and shotgun shells. During a police interview, appellant confessed to the offense. In his first issue, appellant contends the trial court erred by denying his motion to suppress his confession, specifically because he did not voluntarily waive his Miranda rights. See U.S. Const. amend. V (no person "shall be compelled in any criminal case to be a witness against himself, . . ."); Joseph v. State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010) (explaining procedural safeguards to secure privilege against self-incrimination, citing Tex. Code Crim. Proc. Ann. art. 38.22 (West 2005), Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The State must prove waiver by a preponderance of the evidence. Joseph, 309 S.W.3d at 24. The standard for reviewing a trial court's ruling on a motion to suppress is bifurcated: we give almost total deference to the trial court's determination of historical facts, and we review de novo the court's application of the law to the facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). The trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses at a suppression hearing. Id. When the trial court does not make explicit findings of historical fact, we give due deference to the trial court's determination of facts by reviewing the evidence in the light most favorable to the trial court's ruling. Id. The record includes State's Exhibit 1, the " Miranda card" listing the five Miranda warnings and the statement "DO YOU UNDERSTAND EACH OF THE RIGHTS EXPLAINED TO YOU?" with appellant's initials next to each warning, his signature at the bottom, and the date and time of signing. The record also includes State's Exhibit 2, a recording of the police interview in which: (1) the interrogator, detective Jeremy Byrd, read the card aloud to appellant; (2) appellant agreed that he understood his rights; (3) Byrd requested that appellant initial the warning card to show Byrd had read the warnings aloud and that appellant understood those rights; (4) Byrd instructed appellant to sign and write the date and time on the card; (5) Byrd's question that, after having "been read your rights, . . . [d]o you want to talk to me and answer some of the questions that I have for you?" and (6) appellant's response, "You can ask me some questions." (7) appellant's eventual confession to the offense, after Byrd told him that he had been picked out of a lineup and two other suspects had been arrested. Appellant's argument that Byrd induced or coerced him into waiving his right to remain silent is not supported by the record, which shows appellant signed the Miranda card before Byrd's statements. Because appellant continued talking to Byrd after an initial silence following the Miranda warnings, we reject his argument that the record does not show a voluntary waiver of appellant's right to remain silent. See Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010) (waiver of Miranda rights may be implied through "the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver"; citation omitted); Tex. Code Crim. Proc. Ann. art 38.22; Joseph, 309 S.W.3d at 24. We resolve appellant's first issue against him. In his second issue, appellant contends the trial court erred by denying his motion to suppress the fruits of the search of his home. An exception to both a warrant and probable cause to search is consent, if the consent is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 223 (1973). Consent must not be coerced, by explicit or implied means, by implied threat or covert force. Id. at 228. In determining whether consent to search is voluntary, the appellate court considers the totality of the circumstances, and the burden is on the State to prove by clear and convincing evidence that the consent was voluntary. Montanez v. State, 195 S.W.3d 101, 105 (Tex. Crim. App. 2006). "Clear and convincing evidence" is "evidence indicating that the thing to be proved is highly probable or reasonably certain." Harrison v. State, 205 S.W.3d 549, 554 (Tex. Crim. App. 2006) (Meyers, J., dissenting). The record contains State's Exhibit 3, a CONSENT TO SEARCH form signed and dated by appellant's wife, Fernanda Richardson, and Byrd. Byrd said he went to appellant's apartment with a SWAT team, expecting to find the fourth suspect and the weapons there. He said the other officers secured the apartment. Byrd testified that he asked Richardson for consent to search her home and she signed the consent form voluntarily. He denied threatening her. Richardson testified the SWAT team entered her apartment and started searching. Richardson testified she did not sign the consent form voluntarily because she was afraid of the officers and interpreted some of their statements as threatening to call CPS regarding her children and to return with a warrant to "tear up everything" if she did not sign it. Thus, the evidence surrounding the voluntariness of the consent is conflicting. However, although Richardson was "afraid" including fear of what might happen in the future, she was not under arrest or threatened with arrest, nor was there evidence that the SWAT team or Byrd directed any coercion or force towards her or her children. Considering the totality of the circumstances, we conclude that the State met its burden to prove by clear and convincing evidence that Richardson's consent was voluntary. See Schneckloth, 412 U.S. at 219; Montanez, 195 S.W.3d at 105; Harrison, 205 S.W.3d at 554. We resolve appellant's second issue against him. Appellant's third issue is that the trial court erred by including language in the charge regarding good conduct time that is inapplicable to him. This argument has been rejected by the court of criminal appeals. See Luquis v. State, 72 S.W.3d 355, 357, 363 (Tex. Crim. App. 2002) (no error to include language in charge mandated by code of criminal procedure article 37.07, section 4(a) because such inclusion does not render trial unfair). Thus, we resolve appellant's third issue against him. In his fourth issue, appellant contends the judgment is void because the 292nd Judicial District Court lacked jurisdiction due to a lack of a transfer order between the 195th Judicial District Court, in which the indictment was returned, and the 292nd court. Appellant failed to preserve this complaint for review by failing to pursue a plea to the jurisdiction. See Lemasurier v. State, 91 S.W.3d 897, 899 (Tex. App.-Fort Worth 2002, pet. ref'd) (because lack of a transfer order is a procedural, not a jurisdictional, matter, appellant waives error on the lack of transfer order by failing to file a timely plea to the jurisdiction). Based on our resolution of appellant's issues, we affirm the trial court's judgment.
Some of the documents in the record, but not the judgment, show appellant's name as "Norris Demond Richardson."