Lavar John Santee v. State

Opinion issued April 15, 2010 In The Court of Appeals For The First District of Texas ________________ NO. 01-09-00412-CR ________________ LAVAR JOHN SANTEE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 1141881 MEMORANDUM OPINION A jury found appellant, Lavar John Santee, guilty of aggravated robbery and assessed punishment at 20 years’ imprisonment. See Tex. Pen. Code Ann. § 29.03 (Vernon 2003). In a single issue, appellant contends that the trial court erred in denying his motion to suppress and admitting his written confession. We affirm. BACKGROUND Shortly after 2 a.m. on November 15, 2007, Abraham Woods heard “pounding” on the front door of his apartment. Linda Tran, a neighbor living in the apartment complex, heard the noise, immediately looked out her window, and saw three men at the door of Wood’s apartment. Tran and her roommate called 911 and continued to watch out the window. Appellant and two other men forcefully entered Woods’ apartment. Woods jumped out of bed, and one of the intruders fired a weapon in his direction, narrowly missing him. The intruders ordered Woods and his girlfriend to lie on the floor, bound their hands, and covered their heads with pillowcases. Still watching from her window, Tran observed the men “walking back and forth in front of the apartment complex” and then saw two of the men walk out of the apartment with a black duffle bag and get into a black SUV. Tran and her roommate saw police arriving at the complex, flagged the officers down, and described what they had observed. Houston Police Department Officer Glen Tabor testified that he and his partner responded to the call. They observed two black males in the parking lot matching the description provided by Tran and detained the men. Then, Tabor continued to Woods’ apartment. Tabor placed his hand on the front door, causing it to move slightly. Appellant “flung the door open” and was standing on the other side holding an AK-47 assault rifle in a “low ready position.” Startled, Tabor, reached for his weapon. Appellant backed up and raised the AK-47, taking aim at Tabor’s chest. Tabor took cover behind his squad car and gave appellant verbal commands to come out of the apartment unarmed. Eventually, appellant complied and was apprehended. Officer U.P. Hernandez was called to the scene just before 6 a.m. to assist in collecting evidence. As part of his investigation, Hernandez interviewed appellant at the “hold center” where he was being detained. Hernandez testified that, before interviewing a defendant in custody, he always reads the statutory warnings. Hernandez testified that he read appellant the following rights before questioning him about the robbery: You have the right to remain silent and not make any statement. Any statement you make may be used against you at your trial. Any statement you make may be used as evidence against you in your trial. And you have the right to have a lawyer present to advise you prior to and during any questioning. And 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. And then, you have the right to terminate this interview at any time. Appellant indicated that he understood his rights and that he wanted to waive his rights and speak with Officer Hernandez. Appellant was not threatened in any way, promised anything in exchange for a statement, or deprived of using the restroom or eating during the time he gave his statement. As appellant gave his statement orally, Hernandez typed appellant’s exact words into his laptop computer. When Hernandez finished typing appellant’s statement, he instructed appellant to read the written statement and make any changes that he wanted. The written statement contained the same warnings that appellant was given orally before the interview, thereby furnishing appellant a second encounter with the warnings. The rights that prefaced the written statement, in relevant part, stated: Prior to making this statement I have been warned by Inv. U.P. Hernandez, the person to who this statement is made, that: 1) I have the right to remain silent and not make any statements at all and any statement I make may and probably will be used against me at trial; 2) Any statement I make may be used as evidence against me in court; 3) I have the right to have a lawyer present to advise me prior to and during any questioning; 4) If I am unable to employ a lawyer, I have the right to have a lawyer appointed to advise me prior to and during any questioning and; 5) I have the right to terminate the interview at any time. Prior to and during the making of this statement, I knowingly, intelligently and voluntarily waive the rights set out above and make the following voluntary statement[.] Appellant read and initialed next to each right, indicating he understood the rights and voluntarily waived them. Appellant read over the written statement regarding the offense, did not make any changes to the statement, and signed at the end of the document, which was witnessed and signed by two other officers. DISCUSSION In his single issue, appellant contends that the trial court erred by admitting his written statement because the confession was the product of an interrogation technique calculated to undermine his Miranda[1] rights. Specifically, appellant asserts that Officer Hernandez failed to properly provide his Miranda rights and obtain a voluntary waiver prior to taking appellant’s oral statement, thereby invalidating his subsequent written statement. The State asserts that appellant was properly admonished of his Miranda rights prior to making his oral statement, appellant understood those rights, and appellant voluntarily waived them. A. Standard of Review In reviewing a trial court’s ruling on a motion to suppress, the appellate court may disturb the ruling only for abuse of discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008). We give almost total deference to the trial court’s determination of historical facts and review de novo the trial court’s application of law to those facts. Muniz v. State, 264 S.W.3d 392, 395 (Tex. App.—Houston [1st Dist.] 2008, no pet.). When ruling on a motion to suppress, the trial judge is the sole and exclusive trier of fact and judge of the credibility of the witnesses, as well as the weight to be given their testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). The trial court may choose to believe or disbelieve all or any part of the witnesses’ testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Consequently, the evidence is viewed in the light most favorable to the trial court’s ruling. Weaver v. State, 265 S.W.3d 523, 532 (Tex. App.—Houston [1st Dist.] 2008, pet ref’d). B. Applicable Law A confession may be inadmissible on numerous grounds, including a constitutional Miranda violation or noncompliance with Article 38.22 of the Texas Code of Criminal Procedure. See, e.g., Resendez v. State, — S.W.3d —, No. PD-0917-08, 2009 WL 3365656, at *6 (Tex. Crim. App. Oct. 21, 2009). In Miranda v. Arizona, the United States Supreme Court established a set of specific warnings an officer must give, prior to custodial interrogation, as a means of protecting a criminal suspect’s Fifth Amendment constitutional privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 442–57, 467–76, 86 S. Ct. 1602 (1966); Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App. 2007). Additionally, the Texas Legislature has enacted requirements relating to the admissibility of a statement in Article 38.22 of the Code of Criminal Procedure. With regard to written statements, Article 38.22, Section 2 provides that no statement made by a defendant as a result of custodial interrogation may be admissible unless: (a) the written statement shows the defendant received certain admonishments; and (b) the defendant, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived those rights. Tex. Code Crim. Proc. Ann. art. 38.22, § 2 (Vernon 2005). Specifically, the face of the statement must show that the defendant was admonished of the following rights: (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. art. 38.22, § 2(a). C. Analysis Appellant cites to case law regarding Miranda violations, but in applying the law to the facts of his case, he points to deficiencies under Article 38.22, rather than a failure to properly provide Miranda rights. While Article 38.22 requires Miranda warnings be included in a recorded or written statement for it to be admissible, the statutory requirements governing admissibility of a statement at trial are distinguishable from constitutional Miranda rights. Resendez, 2009 WL 3365656, at *6 (“The statutory argument at issue in this case, the violation of Article 38.22, Section 3(a)(2), is legally distinct from the constitutional argument.”). In support of his argument, appellant cites to Seibert and Martinez, cases addressing constitutional Miranda violations. See Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601 (2004) (plurality holding that whenever two-stage interview occurs and Miranda warnings are delivered “midstream,” admissibility of post-warning statement depends on whether warnings could have been effective to accomplish objective); Martinez v. State, 272 S.W.3d 615 (Tex. Crim. App. 2008) (holding failure to Mirandize appellant before initial interrogation and polygraph examination made post-Miranda custodial statement inadmissible). Both cases involved the use of investigative tactics of pre-warning custodial interrogation, followed by Miranda warnings and the taking of post-warning statement. See Seibert, 542 U.S. at 621; Martinez, 272 S.W.3d at 624–25. Pursuant to Seibert, appellant asserts that he was interrogated in “two stages” with the second stage being a “mere continuation” of the first interrogation, causing the Miranda warnings administered mid-stream to be meaningless. See 542 U.S. at 601–02. Seibert and Martinez have no application to the present case because this case does not involve pre-warning interrogation. Here, the officer testified that he gave appellant Miranda warnings beginning the custodial interrogation and before appellant gave any statement. The officer read appellant each of the rights, appellant indicated he understood the rights, and voluntarily waived the rights, choosing to proceed with the interview. Additionally, the officer testified that appellant read and initialed each right, indicating he wished to waive them, prior to signing his written statement. Thus, the record supports the trial court’s findings that appellant was advised of his rights, understood them, and knowingly, intelligently, and voluntarily waived them. Appellant argues that the officer’s credibility was “seriously diminished.” However, we need not indulge this argument because we are not permitted to disturb the trial court judge’s assessment of credibility of a witness and weight to be given to the witness’s testimony. See Maxwell, 73 S.W.3d at 281. Appellant seems to point to the absence of an Article 38.22 recording of the oral statement to show “interrogation techniques designed to frustrate the Miranda rule and to undermine its meaning and effect” amounting to a Miranda violation. See Martinez, 272 S.W.3d at 626 n.20. This argument is flawed because the failure to record a statement under Article 38.22, Section 3(a) (2) does not mean that Miranda warnings were not given. As discussed, the record in the present case shows that appellant was given proper Miranda warnings: the officer testified that he read appellant the warnings prior to the interrogation, appellant understood those warnings, and chose to waive his rights and proceed with the interview. The written statement offered by the State was admissible, as it complied with Article 38.22 and was not the product of prior pre-warning interrogation. Id. art. 38.22, § 2; see Seibert, 542 U.S. at 601–02; Martinez, 272 S.W.3d at 620. We conclude that the trial court did not abuse its discretion in denying the motion to suppress. We overrule appellant’s sole point on appeal. CONCLUSION We affirm the judgment of the trial court. George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Bland. Do not publish. See Tex. R. App. P. 47.2(b). [1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).