COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00156-CR
NO. 02-12-00157-CR
DEMARCUS MCCOWAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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Appellant Demarcus McCowan appeals his conviction for two counts of
aggravated robbery. We previously overruled Appellant’s first and third issues
and now overrule Appellant’s second issue. Accordingly, we affirm the trial
court’s judgments.
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See Tex. R. App. P. 47.4.
In a prior memorandum opinion, we overruled Appellant’s first and third
issues, concluding that the trial court did not abuse its discretion by (1) denying
Appellant’s motion to suppress evidence or (2) overruling his objection to the
State’s extraneous-offense question. McCowan v. State, Nos. 02-12-00156-CR,
02-12-00157-CR, 2013 WL 2435439, at *2, 5–6 (Tex. App.—Fort Worth June 6,
2013, no pet. h.) (mem. op. & order, not designated for publication). However,
we abated the appeal in order for the trial court to enter the required findings of
fact and conclusions of law regarding Appellant’s contention that his confession
was involuntary. Id. at *3; see Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West
2005). The trial court has now entered its findings and conclusions, concluding
that Appellant’s custodial statement was voluntary.
We previously recounted the pertinent facts regarding Appellant’s custodial
written statement. McCowan, 2013 WL 2435439, at *3. In short, Detective
James Weisinger testified at the suppression hearing that he read Appellant the
required warnings after his arrest and that Appellant waived his right to remain
silent. After Appellant made an inculpatory statement, Weisinger wrote down the
statement, which Appellant approved and signed. The signed statement also
included the required warnings. The trial court, in its findings based on testimony
adduced at the pretrial motion-to-suppress hearing, found that Weisinger read
Appellant the warnings, Appellant waived his rights, Weisinger wrote down
Appellant’s subsequent inculpatory statement, and Appellant signed and
approved the written statement. Appellant asserts on appeal, as he did in the
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trial court, that Weisinger never gave the required warnings and that he did not
give a statement to Weisinger or sign such a statement. See Tex. Code Crim.
Proc. Ann. art. 38.22, § 2.
“A statement of an accused may be used in evidence against him if it
appears that the same was freely and voluntarily made without compulsion or
persuasion.” Id. art. 38.21 (West 2005); see also Jackson v. Denno, 378 U.S.
368, 376, 84 S. Ct. 1774, 1780 (1964) (holding admission of involuntary
confession violates defendant’s due-process rights). In reviewing the trial court’s
ruling on a motion to suppress a statement based on a claim the statement was
involuntary, we give almost total deference to the trial court’s determination of
historical facts, especially when the trial court’s fact findings are based on an
evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.
Crim. App. 2000). We afford the same amount of deference to the trial court’s
ruling on application-of-law-to-fact questions, also known as mixed questions of
law and fact, if the resolution of those questions turns on evaluating credibility
and demeanor. Id. But questions of law and mixed questions of law and fact
that do not turn on an evaluation of credibility and demeanor are reviewed de
novo. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We
sustain a trial court’s ruling on a motion to suppress if it is correct on any theory
of law applicable to the case. Ross, 32 S.W.3d at 856.
Here, the trial court made credibility determinations adverse to Appellant’s
position. Namely, the trial court found that Weisinger gave Appellant the
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warnings, Appellant voluntarily waived those rights, and Appellant approved and
signed both pages of the written statement. Although Appellant testified that he
never received the warnings, made a statement, or signed the statement, the trial
court was uniquely positioned to determine the credibility of the witnesses. We
will not second guess these determinations. The evidence adduced at the
suppression hearing supports the trial court’s findings and conclusions; thus, we
hold that the trial court did not abuse its discretion in denying Appellant’s motion
to suppress. See, e.g., Davis v. State, 313 S.W.3d 317, 336–38 (Tex. Crim. App.
2010), cert. denied, 132 S. Ct. 122 (2011); Sells v. State, 121 S.W.3d 748, 767
(Tex. Crim. App.), cert. denied, 540 U.S. 986 (2003); Wood v. State, 18 S.W.3d
642, 646 (Tex. Crim. App. 2000).
We overrule issue two. Having overruled all of Appellant’s issues, we
affirm the trial court’s judgments.
LEE GABRIEL
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 8, 2013
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