NO. 07-08-0419-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 16, 2010
______________________________
SAMUEL R. MERMELLA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-414,684; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Following pleas of not guilty, Appellant, Samuel R. Mermella, was convicted by a
jury of two counts of sexual assault.1 Punishment was assessed by the jury at twenty
years confinement and a fine of $10,000 for each count. Upon the State's motion, the
trial court ordered the periods of confinement to run consecutively. We affirm.
1
Tex. Penal Code Ann. § 22.011(a)(2) (Vernon Supp. 2009).
Factual Background
The victim was born on October 30, 1990. When she was in the seventh or
eighth grade and approximately thirteen or fourteen years old, she met Appellant2 and
they engaged in sexual relations. According to the victim's testimony, she and
Appellant were not dating nor otherwise romantically involved and two years passed
without any involvement between them. Then by chance their paths crossed and on
May 12, 2006, when the victim was fifteen years old and in the ninth grade, she ended
up at Appellant's house with Appellant, his younger brother, and two of her female
friends. According to the victim, when Appellant's brother and the two females walked
to a nearby convenience store for food, Appellant persuaded her to engage in sexual
relations.
After Appellant's brother and the two females returned from the store, one of the
females left with another friend. Appellant, his brother, the victim, and her friend
remained at Appellant's house. Later that night, the victim and Appellant went into his
bedroom where, according to the victim, they again engaged in sexual relations during
the early morning hours of May 13, 2006, before they both fell asleep.
The victim awoke to screams and yells by a young woman who had turned on
the bedroom lights. The woman was Appellant's wife. Mrs. Mermella threw the victim's
shoes out of the house, located a baseball bat, and with the assistance of a female
friend commenced to beat the victim on her head, face, and body. When the victim was
2
Appellant was born on February 23, 1985. Therefore, at this time, Appellant was either eighteen or
nineteen years old.
2
able to get away she walked to a nearby convenience store where the attendant on duty
offered her a phone and she called her mother.
When her mother arrived, police were called to the convenience store to
investigate an assault. Officer Shane Bledsoe was dispatched to the convenience store
while other officers were dispatched to Appellant's residence. During Officer Bledsoe's
interview with the victim, she told him she had engaged in sexual relations with
Appellant on that night and also two years earlier. After being questioned, she was
taken to the hospital by ambulance and Officer Bledsoe proceeded to Appellant's
residence.
At this point the assault investigation against Mrs. Mermella merged with a
sexual assault investigation involving Appellant. According to the evidence, Officer
Green administered Miranda warnings to Appellant.3 Thereafter, Officer Bledsoe
questioned Appellant about his having had sexual relations with the victim. At that time,
Appellant gave a statement that he had engaged in sexual relations with her two years
earlier, but he denied having done so on that night.
Following the investigation, Appellant was charged by indictment with one count
of aggravated sexual assault, allegedly committed in 2004 when the victim was under
age fourteen, and two counts of sexual assault, one alleged to have occurred on May
12, 2006, and the other on May 13, 2006, when the victim was over age fourteen. The
jury convicted Appellant in count one of the lesser included offense of sexual assault,
acquitted him in count two, and convicted him of sexual assault in count three. After the
3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3
jury assessed a sentence of twenty years confinement and a fine of $10,000 as to each
offense, this appeal followed.
Analysis
Appellant challenges the trial court's ruling on his oral motion to suppress his
statement by four issues in which he contends the evidence is "legally or factually
insufficient" to show (1) his statement was voluntary, (2) he was properly warned, (3) he
waived the right to remain silent and the right to counsel, and (4) his statements were
obtained in compliance with article 38.22 of the Texas Code of Criminal Procedure.
Although Appellant's complaints are couched as challenges to the sufficiency of the
evidence and his cited authorities relate to such complaints,4 essentially, he is
challenging the trial court's denial of his motion to suppress. By his fifth issue, Appellant
questions whether the trial court erred in failing to submit a jury instruction regarding the
voluntariness of his statement.
I. Motion to Suppress
A. Standard of Review
A trial court’s ruling on a motion to suppress is reviewed for abuse of discretion.
Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Hudson v. State, 247
S.W.3d 780, 783 (Tex.App.–Amarillo 2008, no pet.). Almost total deference is given to
a trial court’s determination of historical facts, especially when the trial court’s fact
findings are based on an evaluation of the credibility and demeanor of a witness. St.
4
Sufficiency of the evidence complaints are directed toward elements of an offense. Voluntariness of a
statement and subsidiary issues which flow therefrom are not elements of an offense.
4
George v. State, 237 S.W.3d 720, 725 (Tex.Crim.App. 2007); Guzman v. State, 955
S.W.2d 85, 89 (Tex.Crim.App. 1997). The same level of deference is also afforded to a
trial court’s ruling on application of law to fact questions or mixed questions of law and
fact if the resolution of those questions also turns on an evaluation of credibility and
demeanor. Montanez v. State, 195 S.W.3d 101, 108-09 (Tex.Crim.App. 2006).
However, if mixed questions of law and fact do not fall within these categories, appellate
courts may conduct a de novo review of the trial court’s ruling. Guzman, 955 S.W.2d at
87.
The trial court is the sole factfinder at a suppression hearing, and it may believe
or disbelieve all or any part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855
(Tex.Crim.App. 2000). The trial court may make reasonable inferences from the
evidence presented. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.
2008).
When, as here, no findings of fact were requested nor filed, we view the evidence
in the light most favorable to the trial court’s ruling and assume the trial court made
implicit findings of fact supported by the record. Ross, 32 S.W.3d at 855-56. The trial
court's ruling will be upheld if it is reasonably supported by the record and is correct
under any theory of law applicable to the case. Ramos v. State, 245 S.W.3d 410, 418
(Tex.Crim.App. 2008).
B. Analysis of Issues One, Two, Three, and Four
Following voir dire but prior to the State's opening argument, the State and
defense counsel conducted voir dire examination of Officer Bledsoe to determine the
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admissibility of Appellant's statement that he had engaged in sexual relations with the
victim two years before the night she was beaten. Officer Green did not testify,
however, according to Officer Bledsoe, who used his police report to refresh his
memory, Officer Green issued Appellant Miranda warnings before he was questioned
about a possible sexual assault. When Appellant gave his statement, he was not under
arrest or handcuffed. Although Officer Bledsoe could not recall whether he was present
when Appellant was Mirandized, he was confident that Officer Green administered the
warnings prior to questioning or it would not have been memorialized in his report.
Officer Bledsoe could not, however, recall if Appellant indicated that he understood his
rights or whether he affirmatively waived those rights.
Defense counsel argued that Appellant was considered a sexual assault suspect
and because he was not properly Mirandized, his oral statement should be suppressed.
The State countered that it didn't matter whether Appellant was properly Mirandized
because Appellant's statements were not the result of a custodial interrogation. The
court agreed, finding that the evidence was "uncontradicted that the defendant's
Miranda rights were read to him."
Notwithstanding the court's position, defense counsel additionally contended that
Appellant's statements were inadmissible because they were involuntary. The trial court
explained that Appellant's statement did not rise to the level of "the character of a
voluntary statement." The court added:
As to the voluntariness of any confession or anything like that, I don't think
we're talking about that. I think we're talking about a simple statement
made to a police officer as a witness at the scene.
6
Defense counsel responded:
No, Your Honor, I'm not -- I'm not trying to make -- argue that it was
involuntary or anything like that. I'm just trying to say, Your Honor, the
focus of the investigation was on my client at that particular time and --
The court responded: "And he was given his Miranda warnings." The court
overruled his objection, Appellant's statements were eventually admitted into
evidence, and the court granted him a running objection to Officer Bledsoe's testimony
regarding the issue.
The warnings required by Miranda and § 3(a)(2) of article 38.22 of the Texas
Code of Criminal Procedure are intended to safeguard a person's privilege against self-
incrimination during custodial interrogation. Herrera v. State, 241 S.W.3d 520, 525
(Tex.Crim.App. 2007). Therefore, unwarned statements obtained as a result of
custodial interrogation may not be used as evidence by the State in a criminal
proceeding during its case-in-chief. Id. at 525. It is, however, the defendant's burden
to prove that a statement was the product of a custodial interrogation. Id. at 526.
The Supreme Court has defined custodial interrogation as "questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way." Id., citing Miranda v. Arizona,
384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When considering "custody"
for Miranda purposes, the reasonable person standard is utilized, i.e., a person is in
custody if, under the circumstances, a reasonable person would believe his freedom of
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movement was restrained to the degree associated with a formal arrest. Herrera, 241
S.W.3d at 525. In that regard, at least four general pre-arrest situations have been
identified as constituting custody: (1) when the suspect is physically deprived of his
freedom of action in any significant way, (2) when a law enforcement officer tells the
suspect that he cannot leave, (3) when law enforcement officers create a situation that
would lead a reasonable person to believe that his freedom of movement has been
significantly restricted, and (4) when there is probable cause to arrest and law
enforcement officers do not tell the suspect that he is free to leave. Dowthitt v. State,
931 S.W.2d 244, 255 (Tex.Crim.App. 1996).
Here, Appellant was not under arrest nor was his freedom of movement
restrained or otherwise restricted by law enforcement when questioned about his
sexual relationship with the victim. There is nothing in the record to suggest that
Appellant was in any of the situations which would constitute custody. Appellant
contends he was a suspect when questioned and "Miranda attached." Officer
Bledsoe's subjective belief about whether he was a suspect does not factor into a
custody determination unless that belief was somehow conveyed to Appellant.
Herrera, 241 S.W.3d at 525-26, citing Stansbury v. California, 511 U.S. 318, 323-25,
114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Nothing in the record reflects that the
officers conveyed to Appellant that he was a suspect in a sexual assault investigation
at the time he gave his statement to Officer Bledsoe. The court found that Appellant
gave a "simple statement" to a police officer "as a witness at the scene."
The trial court's ultimate "custody" determination presents a mixed question of
law and fact. Herrera, 241S.W.3d at 526, citing Thompson v. Keohane, 516 U.S. 99,
8
112-13, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Therefore, we afford almost total
deference to the trial court's determination of questions of historical fact turning on
credibility and demeanor. Herrera, 241 S.W.3d at 526.
Officer Bledsoe's testimony regarding the circumstances surrounding Appellant's
statement and his being Mirandized were uncontradicted. During the suppression
hearing, the trial court found that at the time of his statement Appellant was not in
custody, his statement was not coerced, and Appellant had indeed been given his
Miranda warnings by Officer Green. Accordingly, we conclude that § 3(a)(2) of article
38.22, was not implicated by the facts of this case. Applying the level of deference we
are required to give in reviewing a suppression ruling, we conclude the trial court did
not abuse its discretion in denying Appellant's motion to suppress his statement that he
had engaged in sexual relations with the victim two years earlier. Issues, one, two,
three, and four are overruled.
II. Jury Instruction on Voluntariness of Appellant's Statement
A. Article 38.22, §§ 6 and 7
By his fifth issue, Appellant challenges the voluntariness of his statement and
whether he was properly warned of his rights and competently waived those rights.
Article 38.22, § 6 provides that "[i]n all cases where a question is raised as to the
voluntariness of a statement of an accused, the court must make an independent
finding in the absence of the jury as to whether the statement was made under
voluntary conditions. Article 38.22, § 7 provides that "[w]hen the issue is raised by the
evidence, the trial judge shall appropriately instruct the jury, generally, on the law
9
pertaining to such statement." Tex. Code Crim. Proc. Ann. art. 38.22, §§ 6 and 7
(Vernon 2005).
In Oursbourn v. State, 259 S.W.3d 159, 175-76 (Tex.Crim.App. 2008), the Court
held that when the evidence raises an issue of the '"voluntariness" of a defendant's
statement under article 38.22, the trial court shall give a general instruction under
sections 6 and 7 because it is the law applicable to the case. (Emphasis added).
"The issue" refers to compliance with the statutory warnings set out in both articles
15.17 and 38.22, sections 2 and 3 of the Texas Code of Criminal Procedure, and the
voluntariness of the defendant's waiver of his rights.5 Id.
Article 15.17 imposes a duty on an arresting officer to take an arrested person
before a magistrate to provide certain warnings. Tex. Code Crim. Proc. Ann. art.
15.17(a) (Vernon Supp. 2009). Appellant was not arrested on the night in question;
thus, no "issue" was raised by the evidence requiring compliance with the statutory
warnings of article 15.17(a). Article 38.22, section 3 applies to oral statements of an
accused made as a result of custodial interrogation. Tex. Code Crim. Proc. Ann. art.
38.22, § 3 (Vernon 2005). We have previously determined that the oral statement given
by Appellant to Officer Bledsoe was not the result of custodial interrogation; thus, the
requirements for admissibility enumerated in section 3(a) do not apply. Moreover, as
the State points out, defense counsel's position regarding the voluntariness of
Appellant's statement was, "I'm not trying to make -- argue that it was involuntary or
anything like that."
5
Article 38.22, section 2 applies to written statements and does not apply in this case.
10
Accordingly, we conclude that based on the record before us, Appellant's
statement was not the result of custodial interrogation requiring compliance with certain
warnings and admonitions. Thus, we need not address whether Appellant voluntarily
waived his rights. We hold the trial court did not err in failing to instruct the jury on the
voluntariness of Appellant's statement. Issue five is overruled.
Conclusion
Having overruled Appellant's five issues, the trial court's judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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