Affirmed and Memorandum Opinion filed December 3, 2009.
In The
Fourteenth Court of Appeals
NO. 14-08-00521-CR
Sean Thomas Saunders, Appellant
v.
The State of Texas, Appellee
On Appeal from the 209th District Court
Harris County, Texas
Trial Court Cause No. 1082419
MEMORANDUM OPINION
Appellant Sean Thomas Saunders challenges his conviction for capital murder, claiming in two issues that the trial court should have excluded two audiotaped statements made by appellant due to alleged non-compliance with the requirements of article 38.22 of the Texas Code of Criminal Procedure. In another issue, appellant claims that the trial court erred in failing to submit findings of fact and conclusions of law as to the voluntariness of those statements. We affirm.
I. Factual and Procedural Background
Appellant was charged by indictment with the felony offense of capital murder for intentionally causing the death of Dorothy Saunders, appellant’s grandmother, by shooting her with a firearm while in the course of committing or attempting to commit a robbery. Appellant pleaded “not guilty” to the charged offense.
Prior to trial, appellant filed two motions to suppress two audiotaped statements in which he confessed to shooting his grandmother. In one motion, appellant complained of non-compliance with the waiver requirement set forth in section 3(a) of article 38.22 of the Texas Code of Criminal Procedure. In the second motion, appellant challenged the voluntariness of his statement[1] under section 6 of article 38.22. At a pretrial hearing on the suppression motions, appellant informed the trial court that his claim under section 6 of article 38.22 was moot, as reflected in the following exchange:
[APPELLANT’S TRIAL COUNSEL]: Judge, let me refer first to the Motion to Suppress Defendant’s Audiotaped Statement, the 38.22, Section 6, voluntariness issue. And the Defense will concede there has been no evidence during this hearing that [appellant] was coerced into giving a statement. So I concede that the voluntariness issue under section 6 is moot.
[TRIAL COURT]: And the Court has denied your motion in that case.
The trial court denied both motions and ruled that both audiotaped statements were admissible.
At trial, the audiotaped statements were admitted into evidence as State’s Exhibit 73 and State’s Exhibit 74 over appellant’s renewed objection. The jury found appellant guilty as charged. Appellant was sentenced to a life of confinement.
II. Issues and Analysis
A. Abatement
In appellant’s first issue, appellant urges this court to abate for a judicial determination of the voluntariness of appellant’s audiotaped statements.
The record reflects that by order dated March 26, 2009, this court abated the appeal and ordered the trial court to reduce to writing and submit findings of fact and conclusions of law as to the voluntariness of appellant’s statements as required by article 38.22. The record reflects that the trial court timely submitted these findings of fact and conclusions of law, specifically finding that appellant’s statements were freely and voluntarily made. Therefore, appellant’s complaint concerning the trial court’s failure to enter written findings and conclusions has been rendered moot by the trial court’s submission of these findings.
To the extent appellant argues that his statements were not made voluntarily under section 6 of article 38.22, appellant is entitled to no relief. When an accused informs the trial court that an issue need not be decided, the accused may not reassert that issue on appeal. See Cole v. State, 194 S.W.3d 538, 543 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); Strauss v. State, 121 S.W.3d 486, 489 (Tex. App.—Amarillo 2003, pet. ref’d). Although appellant initially filed a motion to suppress his statement based upon section 6 of article 38.22, the record from the pretrial suppression hearing reflects that appellant conceded the issue was “moot” because no evidence was produced to support that claim. See Cole, 194 S.W.3d at 543; Strauss, 121 S.W.3d at 489. On appeal, appellant similarly acknowledges that “there is no evidence in the record that appellant was illegally coerced” when he made his statements. Having conceded the voluntariness issue under section 6 of article 38.22, appellant has waived his right to contest the trial court’s ruling on appeal. See Cole, 194 S.W.3d at 543; Strauss, 121 S.W.3d at 489. We therefore overrule appellant’s first issue.
B. Waiver under Article 38.22 section 3(a)(2) of the Texas Code of Criminal Procedure
In his second and third issues, appellant challenges the admissibility of the two audiotaped statements, claiming that the trial court erred in admitting the statements based on non-compliance with the waiver requirement set forth in section 3(a) of article 38.22.[2] Regarding the first statement admitted into evidence (State’s Exhibit 73), appellant claims that the recording does not contain an express waiver of his Miranda rights. As to his second statement admitted into evidence (State’s Exhibit 74), appellant contends that appellant’s response to the investigator’s questions does not amount to waiver because, although appellant confirmed that he wanted to talk with the investigator to clarify some matters, appellant’s response is not the equivalent of waiver.
We review a trial court’s admission of evidence under an abuse-of-discretion standard. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (op. on reh’g). Likewise, we review a trial court’s ruling on a motion to suppress for an abuse of discretion. Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991); Mason v. State, 116 S.W.3d 248, 256 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). We view the evidence adduced at a suppression hearing in the light most favorable to the trial court’s ruling. Champion v. State, 919 S.W.2d 816, 818 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). At a suppression hearing, the trial court is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented. Id. We give almost total deference to the trial court’s findings of historical fact that depend on credibility and demeanor, 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).
Section 3(a) of article 38.22 provides in relevant part:
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 § 3(a) (Vernon 2005). In this case, we presume without deciding that appellant’s statements were made as a result of custodial interrogation. 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 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.
Appellant specifically argues that while he was asked if he understood his rights, he was not asked, and he did not explicitly answer, 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, 16–17 (Tex. Crim. App. 1994). In the context of either a written or oral confession, a waiver of rights may be inferred from the actions and words of the person being interrogated based on the totality of the circumstances surrounding the interrogation. State v. Oliver, 29 S.W.3d 190, 191 (Tex. App.—San Antonio 2000, pet. ref’d).
State’s Exhibit 73 was the first of two audiotaped statements that appellant gave during an interview with a Houston Police Department investigator. It is undisputed that appellant received the warnings set out in section 2 before the recording took place and again after the recording started. At the hearing on appellant’s motions to suppress, the investigator who spoke with appellant testified that before the recording began, he read appellant his rights, appellant indicated his understanding of each of the rights at that time, and that appellant agreed to give the statement. The recording contained in State’s Exhibit 73 reflects that appellant was given the warnings set out in section 2 of article 38.22. Appellant stated that he understood each of the warnings, and, as an indication of that understanding, he supplied his own definition of the word “terminate” as an “end” to the interview. The recording does not reflect that the investigator asked appellant whether he waived the rights. However, after being informed of his rights and after affirmatively indicating his understanding of them, in response to the investigator’s directive to “tell us what happened,” appellant proceeded to give his statement. At no point in the interview did appellant seek to terminate the interview or invoke any of his rights. In this statement, appellant confessed to shooting his grandmother once. Although appellant never made any statements in State’s Exhibit 73 that can be construed as an explicit waiver of his rights, there is nothing in his statement that indicates appellant did not knowingly, intelligently, and voluntarily waive his rights.[3] See id. at 193.
Fifty-five minutes after making the first statement, appellant gave a second statement to the investigator. The second statement was admitted into evidence as State’s Exhibit 74. It is undisputed that appellant received the warnings set out in section 2 at the beginning of this recording. In the recording, the investigator indicated that appellant was receiving the warnings for a third time, and appellant did not disagree with this statement or otherwise indicate the statement was not true. Appellant affirmatively demonstrated his understanding of each of the rights as each right was read to him. In the recording, the investigator asked if appellant wanted to talk with the investigator and clarify some matters from the first statement, and appellant agreed and answered the investigator’s questions. At no time during this recording did appellant seek to terminate the interview or invoke any of his rights. In this statement, appellant confessed to shooting his grandmother and taking his grandmother’s credit card and money. As with appellant’s first statement, under the totality of the circumstances, we conclude appellant validly waived his rights under article 38.22 in the State’s Exhibit 74. See Oliver, 29 S.W.3d at 191; see, e.g., Sparks v. State, No. 02-07-00356-CR, 2008 WL 4053021, at *3 (Tex. App.—Fort Worth Aug. 28, 2008, no pet.) (mem. op.) (involving a recording in which an accused affirmatively responded and answered questions in response to an investigator’s question, “[C]an we talk about it? . . . [Y]ou have to waive those rights before we’re supposed to talk about it.”).
Appellant contends this court should decline to follow Rocha v. State and Etheridge v. State, cases in which the courts rely on Barefield v. State, 784 S.W.2d 38, 40–41 (Tex. Crim. App. 1989), overruled on other grounds by Zimmerman v. State, 860 S.W.2d 89, 94 (Tex. Crim. App. 1993). In Barefield, the Court of Criminal Appeals held that the statute for oral confessions does not require that a recorded statement contain an express verbal statement from the accused that he waives his rights prior to giving a statement. See Barefield, 784 S.W.2d at 40–41. Appellant claims that the Etheridge court, in relying on Barefield, did not address the fact that with an oral statement, there is no requirement for ratification as compared to a signature on a written statement. Appellant provides no authority for support that this rationale precludes admission of his audiotaped statements.[4] The Court of Criminal Appeals in Etheridge rejected a distinction between an oral statement and a written statement and confirmed that the relevant portion of Barefield was correctly decided in that no additional language was required before a trial court reasonably could infer that an accused had waived his rights under article 38.22. See Etheridge, 903 S.W.2d at 16–17; see also Oliver, 29 S.W.3d at 193 n.2 (“In the context of an oral confession, an electronic recording demonstrates the defendant has actually been read his art. 38.22 rights when he proceeds to participate in an interview, as opposed to the assertion . . . that the requirements of 38.22 have been met.”). As an intermediate court, we are required to follow the binding precedent of the Court of Criminal Appeals. See Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Appellant next attempts to distinguish Rocha and Etheridge on the basis that statutory changes, namely the addition of section 3(e) to article 38.22 post-Barefield renders the analysis in Barefield obsolete. Section 3(e) requires strict construction of article 38.22 section 3(a), and with the exception of circumstances not applicable in this case, requires exclusion of statements unless the requirements of section 3(a) are satisfied. Tex. Code Crim. Proc. Ann. art. 38.22 § 3(e); see Tigner v. State, 928 S.W.2d 540, 546 (Tex. Crim. App. 1996). However, section 3(a)(2) does not require a recording of an accused’s statement to contain an explicit waiver of rights, and as discussed above, we conclude appellant validly waived his rights under article 38.22. See Rocha, 16 S.W.3d at 12. Although appellant cites to Davidson v. State, 25 S.W.3d 183 (Tex. Crim. App. 2000), for support, that case is not on point because the statements at issue in Davidson were not electronically recorded and therefore did not comply with the requirement in section 3(a)(1) that statements be electronically recorded. See 25 S.W.3d at 185.
Nothing in either State’s Exhibit 73 or State’s Exhibit 74 suggests that appellant did not knowingly, intelligently, or voluntarily waive his rights in making the statements. See Oliver, 29 S.W.3d at 190. From these recordings, under the totality of the circumstances, it reasonably can be inferred that appellant waived his rights in accordance with article 38.22. See id. at 193. Therefore, the trial court did not err in admitting the audiotaped statements into evidence or in overruling appellant’s motion to suppress the statements under section 3(a) of article 38.22.[5] Accordingly, we overrule appellant’s second and third issues.
Having overruled all of appellant’s issues, we affirm the trial court’s judgment.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Yates, Frost, and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] The reference in appellant’s motion was to a singular statement. It is unclear which of the two statements that appellant intended in filing this motion to suppress.
[2] Unless otherwise specified, all references to an “article” are to to the Texas Code of Criminal Procedure.
[3] Because we conclude that the appellant’s statements met the requirements of section 3(a)(2), we do not reach appellant’s arguments that section 3(c) is inapplicable to these statements.
[4] However, the San Antonio court of appeals rejected a somewhat similar argument that additional waiver language, comparable to an accused’s initials beside written warnings, is required for a reviewing court to infer an accused’s waiver under article 38.22 for oral confessions. See Oliver, 29 S.W.3d at 192 (considering the facts of Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994), pertaining to a written confession, and determining that the totality of the circumstances warranted inference of waiver if an oral confession contains a recitation of the warnings, the accused acknowledges his understandings of his rights, and the accused proceeds without hesitation to participate in an interview).
[5] Because we conclude that the trial court did not err in admitting the statements, we do not reach the merits of appellant’s arguments that he suffered harm from the alleged error.