COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-001-CR
RANDY DEAN PARNELL, JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In two points, Appellant Randy Dean Parnell, Jr. appeals his convictions
for unauthorized use of a vehicle and engaging in organized crime (theft of
property valued more than $1,500 but less than $20,000).2 We affirm.
1
… See Tex. R. App. P. 47.4.
2
… See Tex. Penal Code Ann. §§ 31.03, 71.02(a)(1) (Vernon Supp.
2008), § 31.07 (Vernon 2003).
II. Procedural History
The State charged Parnell with unauthorized use of a vehicle and
engaging in organized criminal activity (theft of property worth $1,500 to
$20,000). After a pretrial hearing, the trial court overruled Parnell’s motion to
suppress. Parnell pleaded not guilty at trial, but the jury convicted Parnell of
both charges and assessed punishment at ten years’ confinement for the
unauthorized use conviction and fifteen years’ confinement for the organized
criminal activity conviction. The trial court entered judgment on the verdict,
and this appeal followed.
III. Discussion
In his first point, Parnell complains that his motion to suppress should
have been granted and that the trial court abused its discretion by failing to
make written findings of fact and conclusions of law “with respect to the
admissibility of evidence and statements.” In his second point, he complains
that he was entitled to an article 38.23 instruction in the jury charge.
A. Suppression Hearing
Arlington Police Officer Jared Ross was the only witness to testify at the
suppression hearing. For purposes of the suppression hearing, the State
stipulated that in the early morning hours of January 21, 2007, Officer Ross
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approached Parnell and another suspect, arrested them for evading detention,
handcuffed them, and placed Parnell in his patrol car.
Officer Ross testified that he read the Miranda warnings 3 to Parnell when
he arrested him, and then he asked Parnell whether he understood his rights.
He testified that Parnell responded that he understood his rights. Then Officer
Ross asked Parnell whether he wanted to waive those rights, and Parnell agreed
to talk.
Officer Ross testified that there were three vehicles at the location where
he arrested Parnell. He stated that the first question he asked Parnell after
Parnell agreed to talk with him was “something to the effect of[,] [‘A]re any of
these vehicles legit [or] any of these vehicles legal?[‘]” He testified that Parnell
responded, “no.” Before he could ask his second question, Parnell started
asking about his bond amount. Officer Ross testified,
A. . . . I was initially informed by the supervisors on scene to hold
off on setting a bond until we could figure out all the charges and
until a detective could have a chance to talk to him. So I advised
him at that time that—at that point that there was no bond set.
Q. So you—you told that to the defendant?
A. Correct.
Q. What was his response?
3
… See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
3
A. He said something to the effect of, well, if there’s no bond—you
know, if there’s no bond, then I don’t feel like talking to you guys
anymore.
Q. So did you stop talking to him?
A. I did.
Q. What happened after that?
A. I closed the door, I got in my car, I drove him to the police
station, transported him to the jail.
Officer Ross testified that this portion of his conversation with Parnell
took place while Parnell was sitting in the back of his patrol car and Officer
Ross was standing outside the patrol car. He testified that his weapon was
holstered and that he did not make any promises or threats to Parnell when he
spoke with him.
When they arrived at the jail, Officer Ross parked in the jail sallyport area
and took out a book-in information form to fill out on Parnell. He testified that
he started to collect the information for the form from Parnell, such as his
name, social security number, and address, and that while asking Parnell the
routine book-in questions, Parnell gave him additional information about the
three vehicles. Specifically, Officer Ross testified that as he and Parnell spoke,
A. I believe at some point I explained to him more about the bond
process and that he would, in fact, have a bond shortly thereafter
once the detective got to talk to him and once all the charges could
be, you know, figured out and all the appropriate charges could be
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filed, we knew what was going on. And he started becoming a
little bit more relaxed and wanted to talk—seemed like he wanted
to talk a little bit more at that point.
Q. So what did he say?
A. He started telling me that—he basically said that, you know, I’m
going to be honest with you, or something to that effect, and
basically began telling me exactly how—the chain of events for the
past few hours.
Q. And what did he tell you?
A. He told me that a few hours prior to officers getting there to
811 Oak Street, that he and the other arrestee, Mr. Torres, and
another Hispanic male that he just barely knew by the name of
Juan started stealing cars in the neighborhood there on Oak Street.
Q. What else did he tell you?
A. He said that they started with a black Suburban over on Maple
Street and they—that the Hispanic male that he knows as Juan
located the car, somehow got into the car, defeated the ignition
and drove the car away from that location. He said that the three
of them then went to the area of Bowie Street where he
saw—where Mr. Parnell saw the Jeep Cherokee parked at that
address there on Bowie Street. He said that he remembers seeing
the key in the ignition and that it was too tempting not to take. He
said that he got in the Jeep and drove it away from the owner’s
house over to 811 North Oak.
Q. Okay. It was at the owner’s house on Bowie Street?
A. Correct.
Q. And he drove it over to where you later . . . recovered some
vehicles?
A. That’s right.
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Q. What else did he tell you?
A. And the last vehicle he said was the Chevy pickup truck with
the Nike swoop over on Town North. He told me that—I guess
Juan had located the vehicle, Juan had somehow gotten in and
defeated the ignition, and that Mr. Torres then drove that pickup
back to 811 North Oak Street. And shortly thereafter is when
officers contacted them.
Q. Did he tell you what happened with Juan?
A. He said that Juan was by the Suburban when officers
approached and that when officers began chasing him and Mr.
Torres, that Juan must have ran the other way.
Q. This information that [Parnell] gave to you . . . when you were
talking with him in the patrol car and in the jail . . . did you know
any of that information ahead of time?
A. I didn’t know any of the information to be fact. I mean, I
suspected stuff.
Officer Ross testified that the police later confirmed that all three vehicles
were stolen and that at least one of the vehicles was stolen around 5
a.m.—that is, a few hours before Officer Ross encountered Parnell. 4 With
regard to Parnell’s statement that Juan forced entry and broke the ignition on
the Suburban, officers on the scene reported that the ignitions were defeated
on both the Suburban and the Chevy pickup truck. And with regard to Parnell’s
statement that he saw a red Jeep Cherokee with the key in the ignition, Officer
4
… The 9-1-1 log showed that the vehicle’s owner called in at 5:26 a.m.
6
Ross testified that the Jeep’s owner told one of the officers that the key had
been stuck in the ignition and that he left it that way overnight. He testified
that Parnell’s admissions and the subsequent discovery of corroborating facts
led other officers to go to where the three vehicles were allegedly stolen and
to talk with those vehicles’ owners, and it led to the filing of theft of a vehicle
charges against him.
After Officer Ross finished testifying, Parnell argued that his statements
should be suppressed because they constituted a confession and were
inadmissible under article 38.22, section 3(c) of the code of criminal procedure,
claiming that the facts the police learned “don’t show that a weapon was
secreted,” or anything else contemplated by the portion of the statute “about
the police finding some secretive instrument with which the offense was
committed or finding something that was unknown.” The State responded that
Parnell’s statements were admissible under article 38.22, section 3(c) because
there was no custodial interrogation by Officer Ross and because they were
shown to be reliable—each one of the facts that Parnell told Officer Ross was
later found to be true and there was no evidence of coercion.
The trial court overruled Parnell’s motion. Parnell did not request findings
of fact and conclusions of law at that time, nor does the record reflect that he
subsequently filed a motion to request them.
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B. Preservation of Error
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). Further, the trial court must have ruled on the request, objection,
or motion, either expressly or implicitly, or the complaining party must have
objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez
v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). And the complaint
made on appeal must comport with the complaint made in the trial court or the
error is forfeited. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.
2004); Bell v. State, 938 S.W.2d 35, 54 (Tex. Crim. App. 1996), cert. denied,
522 U.S. 827 (1997); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App.
1990).
Although Parnell now argues that “[b]ecause the statements were
conditioned upon the condition of getting bond[,] they cannot be said to be
legally valid or voluntary,” he did not present this argument to the trial court.
Therefore, he has not preserved this argument for appeal. See Tex. R. App. P.
33.1; Heidelberg, 144 S.W.3d at 537. Furthermore, although Parnell cites
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article 38.22 of the code of criminal procedure and State v. Cullen, 195 S.W.3d
696 (Tex. Crim. App. 2006), to support his argument that the trial court was
required to make written findings of fact and conclusions of law, neither apply
to this particular situation. The article 38.22, section six fact-finding and
conclusion requirement applies only where a question is raised as to the
voluntariness of a statement of an accused, which Parnell did not argue at the
suppression hearing. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon
2005) (stating that in all cases where a question is raised as to the
voluntariness of an accused’s statement, the court must make an independent
finding as to whether the statement was made under voluntary conditions and
enter an order stating its conclusion and the specific fact findings upon which
the conclusion is based). And Cullen just states that “upon the request of the
losing party on a motion to suppress evidence, the trial court shall state its
essential findings.” 195 S.W.3d at 699 (emphasis added). Parnell made no
request to the trial court for findings of fact and conclusions of law, either at
the pretrial hearing or in a subsequent motion. Therefore, Parnell has also failed
to preserve this portion of his complaint for our review. See Tex. R. App. P.
33.1.
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C. Motion to Suppress
Finally, we review the trial court’s ruling on Parnell’s motion to suppress
under a bifurcated standard. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997).5 When, as here, the record is silent on the reasons for the trial court’s
ruling, there are no explicit fact findings, and (as addressed above) neither party
timely requested findings and conclusions from the trial court, we imply the
necessary fact findings that would support the trial court’s ruling if the
evidence, viewed in the light most favorable to the trial court’s ruling, supports
those findings. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App.
2008); see Wiede, 214 S.W.3d at 25. We then review the trial court’s legal
5
… That is, the trial judge is the sole trier of fact and judge of the
credibility of the witnesses and the weight to be given their testimony. Wiede
v. State, 214 S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32
S.W.3d 853, 855 (Tex. Crim. App. 2000), modified on other grounds by State
v. Cullen, 195 S.W.3d 696 (Tex. Crim. App. 2006). Therefore, we give almost
total deference to the trial court’s rulings on (1) questions of historical fact,
even if the trial court’s determination of those facts was not based on an
evaluation of credibility and demeanor, and (2) application-of-law-to-fact
questions that turn on an evaluation of credibility and demeanor. Amador, 221
S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App.
2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
But when application-of-law-to-fact questions do not turn on the credibility and
demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154
S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
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ruling de novo unless the implied fact findings supported by the record are also
dispositive of the legal ruling, and we must uphold the trial court’s ruling if it is
supported by the record and correct under any theory of law applicable to the
case even if the trial court gave the wrong reason for its ruling. State v.
Stevens, 235 S.W.3d 736, 740 (Tex. Crim. App. 2007); State v. Kelly, 204
S.W.3d 808, 819 (Tex. Crim. App. 2006); Armendariz v. State, 123 S.W.3d
401, 404 (Tex. Crim. App. 2003), cert. denied, 541 U.S. 974 (2004).
The only argument Parnell made at the suppression hearing was that his
statements were inadmissible under article 38.22 of the code of criminal
procedure, and Parnell’s only complaint on appeal that comports with this
argument is that “[b]ecause the fruits of the statement were already known[,]
it cannot be said that [Parnell’s] statements led the officers to recover the
vehicles.”
Article 38.22, section 3(a) provides that an accused’s oral statements
made as a result of custodial interrogation are generally inadmissible. See Tex.
Code Crim. Proc. Ann. art. 38.22, § 3(a). However, under section 3(c), oral
statements asserting facts or circumstances establishing the guilt of the
accused are admissible if at the time they were made they contained assertions
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unknown by law enforcement but later corroborated.6 Moore v. State, 999
S.W.2d 385, 400 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000).
Such oral statements need only circumstantially demonstrate the defendant’s
guilt, and if such an oral statement contains even a single assertion of fact
found to be true and conducive to establishing the defendant’s guilt, then the
statement is admissible in its entirety. Id. at 401; see also Cameron v. State,
988 S.W.2d 835, 844–45 (Tex. App.—San Antonio 1999, pet. ref’d), cert.
denied, 528 U.S. 1166 (2000). Facts “found to be true” means those “facts
about which the police [were] unaware at the time of the confession [that] are
later, after [the] confession, found to be true.” Gunter v. State, 858 S.W.2d
430, 448 (Tex. Crim. App.), cert. denied, 510 U.S. 921 (1993), overruled on
other grounds by Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1994). The
provision, “finding of secreted or stolen property or the instrument with which
he states the offense was committed,” is not a limitation on the statements
6
… Section 3(c) states,
Subsection (a) of this section shall not apply to any statement
which contains assertions of facts or circumstances that are found
to be true and which conduce to establish the guilt of the accused,
such as the finding of secreted or stolen property or the instrument
with which he states the offense was committed.
Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c).
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that may be found to be true and conduce to establish guilt. Gunter, 858
S.W.2d at 447 – 8. Oral statements made by an accused need not lead to or
result in the discovery of incriminating evidence so long as the requirements of
section 3(c) are met. Id.
Based on the hearing testimony, in which Officer Ross testified that all he
had were suspicions before other police officers later confirmed Parnell’s
information, we conclude that the trial court did not err by denying Parnell’s
motion to suppress. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3(c); Moore,
999 S.W.2d at 400; Gunter, 858 S.W.2d at 448. We overrule the remaining
portion of Parnell’s first point.
D. Jury Charge
In his second point, Parnell complains that a jury instruction under article
38.23 should have been given because he was interrogated while in custody
and the jury needed that instruction to determine the validity of his statements.
The following conversation ensued during the charge conference:
The Court: Have both sides looked at the charge?
[State]: State has, Your Honor.
[Parnell]: Defense has looked at the charge, and we request that on
page 5 it says, “No evidence or statements obtained by an officer.”
[State]: Judge, the statute actually reads, no evidence obtained by
an officer. The charge can track the statute, just track the statute.
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The Court: All right. I’ll look at that and consider it before we read
it. At this time, I’ll overrule you, but I’ll try to find something
tonight.
[State]: I just have something, if the issue is the statements, my
understanding is that the only 38.23 related would be about
voluntariness.
The Court: That’s what I thought.
[State]: And so I don’t know, this is more physical evidence, my
understanding is, so there may be a charge out there on
voluntariness.
[Parnell]: It goes to the statement, I might work on it myself a little
tonight.
The next day, another charge conference took place.
The Court: Both sides have had a chance to look at the charge.
This is different than the charge we had yesterday afternoon, and
I believe that you had requested a charge yesterday afternoon that
you’ve put in. You’ve now requested that that be taken out and a
supplement is in there at this time; is that correct?
[Parnell]: That’s correct, Your Honor. And I have no objection to
the charge as it’s currently—
The Court: All right. State?
[State]: No, Your Honor.
The Court: All right. Are both sides ready?
Both sides announced ready. The trial court included the following instruction
in the jury charge:
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You are instructed that no evidence or statements obtained
by an officer or other person in violation of any provisions of the
Constitution or laws of the State of Texas or the Constitution or
laws of the United States of America, shall be admitted in evidence
against the accused in the trial of any criminal case. Pursuant to
Texas Code of Criminal Procedure Article 38.22 Sec. 3(a), no oral
or sign language statement of an accused made as a result of
custodial interrogation shall be admissible against the accused in a
criminal proceeding unless the statement contains assertions of
facts or circumstances that are found to be true and which
conduce to establish the guilt of the accused, such as the finding
of secreted or stolen property or the instrument with which he
states the offense was committed.
Therefore, if you believe beyond a reasonable doubt that the
peace officer lawfully obtained the evidence or statement, you may
consider it. If you have a reasonable doubt that the peace officer
lawfully obtained the evidence or statement, you may not consider
it.
Based on the record before us, Parnell forfeited his voluntariness
complaint with regard to the trial court’s charge by failing to preserve error.
See Tex. R. App. P. 33.1. We overrule his second point.
IV. Conclusion
Having overruled both of Parnell’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MCCOY, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2009
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