Affirmed and Memorandum Opinion filed April 10, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00433-CR
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HAROLD BONNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 338th District Court
Harris County, Texas
Trial Court Cause No. 878,591
M E M O R A N D U M O P I N I O N
Appellant Harold Bonney pleaded guilty to burglary of a habitation and was sentenced to 45 years= confinement in the Institutional Division of the Texas Department of Criminal Justice, enhanced by two prior convictions. Appellant raises four issues on appeal. In his first three issues, he contends the trial court erred in denying his motion to suppress his oral confession on the following grounds: (1) the statement does not reflect that he knowingly, intelligently, and voluntarily waived his rights as required under Texas Code of Criminal Procedure article 38.22, section 3(a); (2) there is no evidence to support the trial court=s findings of fact and conclusions of law that appellant knowingly, intelligently, and voluntarily waived his rights; and (3) the confession was the product of improper inducements and deprivations. In his fourth issue, appellant contends his sentence violates his constitutional right to be free from cruel and unusual punishment because it constitutes punishment for being a drug addict. We affirm.
FACTUAL BACKGROUND
The complainant, Katherine Bacon, and her husband lived in the Creekstone Apartments. Appellant=s former girlfriend, Gayla Constine, lived in the same apartment complex. On May 22, 2001, while the Bacons were not home, appellant burglarized the Bacon=s apartment and stole televisions, jewelry, a camcorder, cameras, a VCR, and other possessions valued at approximately $4,000.00. Appellant was arrested and charged with the offense of burglary of a habitation. The indictment alleged two prior convictions for burglary of a motor vehicle and possession of a controlled substance.
On May 30, 2001, Sgt. Harmon of the Houston Police Department conducted an audiotaped interview of appellant. As reflected in the transcript of the recording, Harmon provided the following warnings at the outset of the interview:
Harmon: You=re going to have to speak up, sir, so we can get it on tape.
Bonney: Yes.
Harmon: All right, you understand I=m taping this conversation?
Bonney: Yes.
Harmon: All right, sir. I=m going to read this to you as I did before. You have the right to remain silent and not make any statement at all and that any statement you make may be used against you and probably will be used against you in court. Any statement you make may be used as evidence against you in court. You have the right to have a lawyer present to advise you prior to and during any questioning. If you are unable to employ a lawyer, you have the right to have a lawyer appointed to advise you prior to and during any questioning. You have the right to terminate this interview any time you desire. Okay, like I said, do you understand your statutory rights?
Appellant: Yes.
Harmon: Your legal rights, sir?
Appellant: Yes.
Appellant then admitted to the burglary of the Bacons= home and another burglary at the Creekstone Apartments.
At the hearing on appellant=s motion to suppress the oral statement, the trial court heard testimony from both Harmon and appellant. The trial court denied the motion, and filed the following relevant findings of fact:
5. The defendant understood the rights set out in Paragraph 4 above [the article 38.22 statutory warnings], including that the statement may be used against him.
6. The defendant intelligently, knowingly and voluntarily waived the rights set out in Paragraph 4 above.
7. The defendant=s oral statement was not improperly induced or the product of overreaching on the part of law enforcement officials.
8. The defendant was not threatened, assaulted, or coerced by anyone into making the statement.
9. The defendant was not threatened with charges being filed against Gayla Constine to induce him into giving a statement.
10. The defendant was not under the influence of alcohol or drugs at the time of the interrogation.
11. The defendant=s decision to give a statement was not made as a result of intoxication or delusions from any alcohol or drugs that may have been consumed by the defedant prior to his arrest.
12. No one made any promises to the defendant to induce him to make a statement.
13. The defendant was not deprived of sleep or food by law enforcement officials prior to making the statement.
14. The Court finds Sgt. Harmon to be a credible witness and finds true his testimony that he read the defendant the statutory warnings prior to the statement being given, that the defendant was not intoxicated or delusional, and that he did not threaten, coerce, nor promise the defendant anything in exchange for his statement.
The trial court also entered conclusions of law reflecting its fact findings.
After the trial court denied appellant=s motion to suppress the oral statement, appellant entered a guilty plea to the allegations in the indictment and a plea of true to the allegations in the enhancement paragraphs. There was no agreed recommendation of punishment from the State. The trial court found appellant guilty of the offense as alleged in the indictment, and after a punishment hearing, found the allegations in the enhancement paragraphs true. The trial court sentenced appellant to 45 years= confinement in the Institutional Division of the Texas Department of Criminal Justice. This appeal followed.
DISCUSSION
I. The Motion to Suppress
At a hearing on a motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence and the trial court=s finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993) (en banc). In reviewing a trial court=s ruling on a motion to suppress, we afford almost total deference to the trial court=s determination of the historical facts that the record supports, especially when the trial court=s findings turn on an evaluation of a witness=s credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). However, we review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Id.
Appellant=s first three issues are directed to the trial court=s denial of his motion to suppress his oral recorded statement, and so will be addressed together. Appellant contends the trial court erred in denying his motion to suppress because the recording does not reflect an express waiver of his rights, the evidence is contrary to and does not support the trial court=s findings of fact and conclusions of law that appellant knowingly, intelligently, and voluntarily waived his rights, and his confession was involuntary because it was the product of improper inducements and deprivations. We address each in turn.
A. No Express Waiver
In appellant=s first issue, he contends that the trial court committed reversible error in denying his motion to suppress his oral recorded statement because the audiotape does not reflect that he knowingly, intelligently, and voluntarily waived his rights as required under article 38.22, section 3(a) of the Texas Code of Criminal Procedure. Section 3(a) provides in relevant part:
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:
_
(2) prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning._
Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2003). Section 2 provides as follows:
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 this 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 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;
(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 by Subsection (a) of this section.
Tex. Code Crim. Proc. Ann. art. 38.22, ' 2 (Vernon Supp. 2003).
Specifically, appellant argues that, while he was asked if he understood his rights, he was not asked if he knowingly, intelligently, and voluntarily waived those rights. However, the waiver provision of section 3(a)(2) does not require that the recording reflect an express waiver of the rights. Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1, 16B17 (Tex. Crim. App. 1994), cert. denied, 516 U.S. 920 (1995).
Here, it is undisputed that appellant received the warnings set out in section 2. Moreover, the recording reflects appellant was given the warnings twice, once on the recording and once prior to the recording. Appellant twice stated that he understood the warnings, and proceeded to give his statement. He understood he was being recorded, and did not object. There is nothing in the statement that indicates appellant did not knowingly, intelligently, and voluntarily waive his rights. Additionally, at the hearing on appellant=s motion to suppress the statement, appellant admitted that Harmon read him his rights and he agreed to talk to him. We therefore overrule appellant=s first issue.
B. The Trial Court=s Findings of Fact and Conclusions of Law
In appellant=s second issue, he contends the trial court=s findings of fact and conclusions of law were clearly contrary to and unsupported by the record. Appellant charges that the trial court merely Arubber stamped@ the findings and conclusions submitted by the State, and urges us to conduct a de novo review of the trial court=s determination. Appellant does not specify which findings and conclusions are challenged, but the crux of appellant=s argument appears to be that the trial court=s findings and conclusions are unsupported because there is no evidence of an express waiver of his rights on the recording of his statement. However, as we have already stated, there is no requirement of an express waiver on an oral recorded statement, and there is nothing in the recorded statement to indicate that appellant did not knowingly, intelligently, and voluntarily waive his rights. We overrule appellant=s second issue.
C. The Voluntariness of the Statement
In appellant=s third issue, he contends the trial court committed reversible error in denying his motion to suppress because his statement was the product of improper inducements and deprivations. Specifically, he contends his statement was involuntary because he feared that his former girlfriend, Gayle Constine, would be charged with a crime if he did not confess, he had just ingested crack cocaine and was intoxicated, and he was physically exhausted and deprived of food while in custody.
When the voluntariness of a confession is challenged, the trial court must make an independent determination in the absence of the jury as to whether the statement was voluntarily made. Tex. Code Crim. Proc. Ann. art. 38.22, ' 6 (Vernon 1979); Jackson v. Denno, 378 U.S. 368, 380 (1964). At this hearing, the State has the burden under the Fifth and Fourteenth Amendments of proving by a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489 (1972); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995) (en banc).
The statement of an accused may be used against him if it appears it was freely and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). A statement is involuntary if there was official, coercive conduct of such a nature that any statement obtained was unlikely to have been the product of an essentially free and unconstrained choice. Alvarado, 912 S.W.2d at 211. Before a promise will render a confession inadmissible, it must be shown that the promise induced the confession. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App. 1993) (en banc). In order to induce the confession, the promise must be (1) positive, (2) made or sanctioned by someone in authority, and (3) of such an influential nature that a defendant would speak untruthfully in response thereto. Id. Voluntariness must be determined by considering the totality of the circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997) (en banc).
Here, the trial court heard conflicting testimony regarding the voluntariness of appellant=s oral statement from appellant and Harmon. As the sole fact‑finder and judge of the witnesses= credibility and weight of the evidence, the trial court is owed great deference, and its ruling will be overruled only if it is outside the bounds of reasonable disagreement. Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996).
Appellant testified he had used crack cocaine and consumed alcohol on the day of his arrest, he had not eaten or slept for three days and was not given food when he requested it, and he felt charges would be filed against Constine if he did not provide a statement. He also testified he was upset and sad at the time, and he did not understand that providing a confession would be so harmful in court. However, appellant admitted that Harmon did not tell him that Constine had done anything wrong or that he would file charges against her. He also admitted that Harmon read him his rights, and he agreed to talk to Harmon. Appellant testified that he did not know if fear that Constine might be charged with a crime, his intoxication, or his delusional state compelled him to give the statement, and he admitted that he probably would have given the statement anyway.
Harmon testified that appellant agreed to give a statement, and at no time during the interview did appellant ask him to stop the interview. Harmon further testified that he made no promises to appellant, did not coerce him, and did not deprive him of anything. He also testified that appellant did not appear to be delusional or under the influence of drugs, and he did not smell alcohol on appellant=s breath. While conceding that appellant possibly could have used drugs on the day of his arrest, Harmon attributed appellant=s sometimes slurred speech on the recording to his remorsefulness, noting that he was crying during the interview
Viewing the evidence in its totality, the trial court=s findings of fact and conclusions of law are supported by the record; therefore, the trial court did not abuse it discretion in denying appellant=s motion to suppress. See Dewberry v. State, 4 S.W.3d 735, 747B48 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000); Brimage v. State, 918 S.W.2d 466, 504 (Tex. Crim. App. 1996). Appellant=s third issue is overruled.
II. THE SENTENCE
In his fourth issue, appellant contends that his punishment of 45 years in prison violated his constitutional right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution because it effectively punishes him for his long-term addiction to drugs and alcohol. However, appellant did not object in the trial court to the length of the sentence imposed. Appellant has waived any error. Stevens v. State, 667 S.W.2d 534, 538 (Tex. Crim. App. 1984); Solis v. State, 945 S.W.2d 300, 302 (Tex. App.CHouston [1st Dist.] 1997, pet. ref=d).
We affirm the judgment of the trial court.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed April 10, 2003.
Panel consists of Chief Justice Brister and Justices Yates and Edelman.
Do Not Publish C Tex. R. App. P. 47.2(b).