Affirmed and Memorandum Opinion filed April 24, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00162-CR
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NICHOLAS VONERIC THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1009588
M E M O R A N D U M O P I N I O N
A jury found appellant, Nicolas Voneric Thomas, guilty of murder. The trial court assessed a sentence of fifty years= confinement. In six issues, appellant contends the trial court erred by denying his motion to suppress his videotaped statement because (1) the videotape failed to show compliance with article 38.22 of the Texas Code of Criminal Procedure; (2) he was denied his right to assistance of counsel; and (3) he did not knowingly, intelligently, and voluntarily waive his rights under the Fifth and Fourteenth Amendments to the United States Constitution. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.
I. Background
In the early morning hours of August 18, 2004, appellant and another man were involved in a car chase with complainant, Broderick Johnson, in southwest Houston. During the chase, appellant used a rifle to fire multiple shots at complainant=s vehicle. At least one bullet struck complainant in the back, causing his death.
Houston police officers investigated the murder. On December 8, 2004, Sergeant Breck McDaniel arrested appellant. Subsequently, appellant gave a videotaped statement to Sergeant McDaniel and Sergeant Brian Harris in which he detailed the events that resulted in complainant=s death.
The trial court denied appellant=s motion to suppress his videotaped statement. Thereafter, the jury found appellant guilty of murder. This appeal ensued.
II. Analysis
In six issues, appellant contends the trial court erred by denying his motion to suppress. We disagree.
A. Standard of Review
We review a trial court=s ruling on a motion to suppress under an abuse-of-discretion standard. Swain v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 127 S. Ct. 145 (2006). If supported by the record, a trial court=s ruling on a motion to suppress should not be overturned on appeal. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all the evidence presented. Id. If the record is silent regarding the reasons for the trial court=s ruling or the trial court makes no explicit findings of fact and neither party has timely requested findings from the trial court, we imply the necessary findings that would support the ruling when the evidence supports these implied fact findings. State v. Kelly, 204 S.W.3d 808, 818B19 (Tex. Crim. App. 2006). We give almost total deference to the trial court=s determination of historical facts, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
B. Waiver Under Article 38.22
In his first issue, appellant contends the State failed to prove that he knowingly, intelligently, and voluntarily waived his rights pursuant to article 38.22 of the Texas Code of Criminal Procedure.
Article 38.22 sets forth certain procedural requirements that must be satisfied before the oral statement of an accused, given during custodial interrogation, may be used in a criminal proceeding against the accused. See Tex. Code Crim. Proc. art. 38.22 (Vernon 2003). Specifically, the accused must be warned 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[.]
Id. ' 2 (a). Further, article 38.22 provides that an oral statement made by the accused during custodial interrogation is inadmissible in a criminal proceeding unless an electronic recording of the statement shows he was given the warnings prescribed above and made the statement after knowingly, intelligently, and voluntarily waiving any rights set out in the warnings. See id. ' 3.
A waiver of rights may be inferred from the words and actions of the accused. Hargrove v. State, 162 S.W.3d 313, 319 (Tex. AppCFort Worth 2005, pet. ref=d); State v. Oliver, 29 S.W.3d 190, 192B93 (Tex. App.CSan Antonio, 2000, pet. ref=d). In determining the voluntariness of a confession, we look to the totality of the circumstances. Barefield v. State, 784 S.W.2d 38, 40B41 (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1011 (1990), overruled on other grounds by Zimmerman v. State, 860 S.W.2d 89 (Tex. Crim. App. 1993).[1]
On the videotape of appellant=s statement, after eliciting appellant=s name, date of birth, address, and some other preliminary information, the officers read each of the required warnings to appellant. As officers read the warnings, appellant stated that he understood the warnings. Furthermore, appellant asked a number of questions after the officers read the warnings. First, he asked whether he Awaived everything@ if he gave a statement. The officers correctly responded that providing a statement would not result in waiver of all his rights.[2] The officers informed appellant that the rights he was waiving did not Ago beyond right now,@ additionally, they stated, Athis [waiver] is for this statement right now.@ Finally, they told appellant that he was Anot waiving anything in the future.@ Appellant also asked if his statement could be used against him in court. The officers informed him that any statement he gave could be used against him in a court proceeding. After appellant indicated he understood each of the warnings, the officers questioned him regarding complainant=s murder, and appellant answered the questions.
Appellant argues the evidence fails to support a finding that he, expressly or impliedly, waived his rights knowingly, intelligently, and voluntarily. However, the videotape shows the officers complied with the requirements of article 38.22. Although the videotape does not reflect that appellant emphatically waived his rights, waiver may be inferred from his words and actions. See Hargrove, 162 S.W.3d at 319. The officers read each of the required warnings and answered appellant=s questions regarding those warnings. Appellant indicated he understood the warnings and then answered the officer=s questions regarding the incident at issue. After considering all relevant evidence, we find no abuse of discretion in the trial court=s determination that, by his words and actions, appellant knowingly, intelligently, and voluntarily waived his rights under article 38.22. Appellant=s first issue is overruled.
C. Waiver of Right to Counsel
In his third and fourth issues, appellant contends the trial court abused its discretion by denying his motion to suppress because he was denied his right to assistance of counsel during custodial interrogation. Specifically, appellant argues that he invoked his right to counsel before and during his videotaped statement, and, after invoking his right to counsel, he never reinitiated communications with the officers or waived his right to counsel.[3]
Generally, when a person accused of a crime requests counsel, interrogation of that person must cease until he has obtained a lawyer to assist him. See Muniz v. State, 851 S.W.2d 238, 252 (Tex. Crim. App. 1993). However, when the person subsequently reinitiates communication with the police and validly waives his right to counsel, then the original election is countermanded and police interrogation may resume. Cross v. State, 144 S.W.3d 521, 529 (Tex. Crim. App. 2004).
At the hearing on his motion to suppress, appellant testified that he requested a lawyer before and during his videotaped statement. He testified that officers stopped the videotape during his request for an attorney. In contrast, Sergeant McDaniel, one of the interrogating officers, testified that appellant never requested a lawyer at any time during questioning. Additionally, Sergeant McDaniel testified that the videotape was a clear and accurate depiction of the interview.
In denying appellant=s motion to suppress, the trial court must have concluded appellant=s testimony that he invoked his right to counsel was not credible, and Sergeant McDaniel=s testimony that appellant never invoked his right to counsel was credible. We defer to the trial court=s judgment regarding credibility of witnesses in a hearing on a motion to suppress. See Brooks, 76 S.W.3d at 430. Further, because the trial court must have concluded appellant never invoked his right to counsel, appellant=s contention that he never reinitiated communication with police and never validly waived his right to assistance of counsel after initially invoking his right to counsel is unavailing. Appellant=s third and fourth issues are overruled.
D. Waiver of Fifth and Fourteenth Amendment Rights
In his fifth issue, appellant contends the trial court erred by denying his motion to suppress because the State did not establish that he voluntarily waived his rights under the Fifth and Fourteenth Amendments to the United States Constitution.
Just as a waiver of rights under Article 38.22 may be inferred, a waiver of rights pursuant to the Fifth and Fourteenth Amendments may be inferred. See North Carolina v. Butler, 441 U.S. 369, 373 (1979) (AThe courts must presume that a defendant did not waive his rights; the prosecution=s burden is great; but at least in some cases waiver can be clearly inferred from the actions and words of the person interrogated.@); see also Port v. State, 798 S.W.2d 839, 842 (Tex. App.CAustin 1990, pet. ref=d) (AA waiver of Miranda rights need not be explicit but may be inferred from the actions and words of a person interrogated.@). Where a defendant indicates that he understands his rights, his silence and a course of conduct indicating waiver may support an implied waiver of his rights. See Butler, 441 U.S. at 373B75.
Appellant was advised by the officers of his Miranda rights, asked the officers questions regarding his rights, indicated that he understood his rights, and then gave a statement implicating himself in complainant=s murder. Therefore, we cannot conclude the trial court abused its discretion. Appellant=s fifth issue is overruled.
C. Conclusion
We conclude the trial court did not abuse its discretion by denying appellant=s motion to suppress. Appellant=s issues are overruled.[4]
Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Judgment rendered and Memorandum Opinion filed April 24, 2008.
Panel consists of Justices Fowler, Frost, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Appellant contends we should decline to follow the Court of Criminal Appeals=s holding in Barefield. However, the Court of Criminal Appeals has confirmed that the relevant portion of Barefield was correctly decided. Etheridge v. State, 903 S.W.2d 1, 16B17 (Tex. Crim. App. 1994). Further, as an intermediate appellate court, we are required to follow the binding precedent of the Court of Criminal Appeals. See Gonzalez v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.CHouston [1st. Dist.] 2005, pet. ref=d).
[2] Appellant retained a number of important rights notwithstanding waiver of his right to counsel during the interview, including, but not limited to, the right to a jury trial and the right to confront and cross-examine witnesses.
[3] The State contends appellant failed to preserve error for appellate review. In order to preserve a complaint, a party must present a timely request, objection, or motion stating the specific grounds for his complaint, and obtain a ruling from the trial court. See Tex. R. App. P. 33.1. In his written motion to suppress his videotaped statement, appellant contended he was deprived of his right to counsel and did not Aintelligently, understandingly and knowingly@ waive his right to counsel. We conclude that the content of appellant=s motion was sufficient to preserve his complaint.
[4] In his second issue, appellant presents no independent complaint for our review; appellant merely describes the standard of review for a trial court=s ruling on a motion to suppress evidence. We have applied the appropriate standard. In his sixth issue, appellant discusses the application of the harmless-error rule. However, having found the trial court did not abuse its discretion by denying appellant=s motion to suppress, we need not conduct a harm analysis.