Mark Perkins v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-99-00307-CR Mark Perkins, Appellant v. The State of Texas, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0982585, HONORABLE MIKE LYNCH, JUDGE PRESIDING Mark Perkins appeals from his conviction for aggravated robbery with a deadly weapon. See Tex. Penal Code Ann. § 29.03 (West 1994). He complains of the State's alleged failure to adequately give him his Miranda warnings prior to making a videotape recording of his statement. Because we conclude the State's warnings sufficiently complied with the requirements of Texas Code of Criminal Procedure article 38.22 (West 1979 & West Supp. 2000), we will affirm. Background Perkins and an accomplice forcefully entered the victim's home, stabbed her and removed personal property from her home. After his arrest and after receiving his Miranda warnings, Perkins acknowledged his understanding of his rights and signed a waiver of rights. See Miranda v. Arizona, 384 U.S. 436 (1966). The police videotape recorded Perkins's confession of his involvement in the robbery. At the hearing on his motion to suppress, Perkins challenged the admissibility of the videotape. After hearing the interrogating officer's testimony and reviewing the videotape, the trial court overruled Perkins's objections and concluded the recording was admissible. The trial court found in its findings of fact that Perkins knowingly waived his right to an attorney and freely and voluntarily, without being induced by any compulsion, threats, promises, or persuasion, consented to having his confessed statements during a police interview recorded on videotape. The trial court concluded as a matter of law that the statements were in compliance with Miranda and article 38.22 of the Code of Criminal Procedure and that the statements were admissible. The trial court admitted both the videotape of the confession and the signed card during the guilt/innocence phase of the trial. Additionally, the trial court admitted the transcription of the videotape recording during the punishment phase. The jury found Perkins guilty of aggravated robbery with a deadly weapon. The court sentenced Perkins to thirty-eight years' confinement in the Texas Department of Criminal Justice-Institutional Division. Perkins raises two issues on appeal. Discussion In his first issue, Perkins contends the confession was illegally and unconstitutionally obtained and introduced at trial because he did not give a knowing and voluntary confession. Texas Code of Criminal Procedure article 38.22 section 3(a) provides in pertinent part that no statement of an accused made as a result of a custodial interrogation shall be admissible against the accused in a criminal proceeding unless prior to the statement but during the recording the accused is given the Miranda warnings 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)(2) (West Supp. 2000). The trial court 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 at a motion to suppress hearing. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Appellate courts should afford almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Appellate courts should also afford the same amount of deference to trial courts' rulings on mixed questions of law and fact if the resolution of those ultimate questions turns on an evaluation of credibility and demeanor. Id. A de novo review is appropriate for mixed questions of law and fact not falling within this category. Guzman, 955 S.W.2d at 89. The question of admissibility of an oral confession under article 38.22 is a mixed question of law and fact. Romero, 800 S.W.2d at 543. A statement is involuntary for purposes of federal due process only if there was official, coercive conduct of a nature such that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by the maker. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Alvarado v. State, 853 S.W.2d 17,19 n.4 (Tex. Crim. App. 1993). Absent coercive police conduct causally related to the confession, no basis exists for concluding that any state actor has deprived a criminal defendant due process of law. Alvarado, 912 S.W.2d at 211 (citing Colorado v. Connelly, 479 U.S. 157, 164 (1986)). The court determines the voluntariness of the statement from the totality of the circumstances. Gonzales v. State, 807 S.W.2d 830, 32-33 (Tex. App.--Houston [1st Dist.] 1991, pet. ref'd). Detective Stephen Hamblin conducted the interview with Perkins. The transcription of the recorded confession states in relevant part: Hamblin: Mr. Perkins, my name is Detective Hamblin. Reads rights. Do you understand what I've read to you. Perkins: Yes sir. Hamblin: I'm kind of hard of hearing, so if you'll speak up. If you'll sign this that acknowledges that I've read this to you. Perkins: OK. What is this about?" According to the recording, Perkins then signed the waiver of rights card and discussed the robbery with Hamblin. During the motion to suppress hearing, Detective Hamblin testified about interrogating Perkins. Hamblin testified that before speaking with Perkins, he advised Perkins of his constitutional rights and asked Perkins if he understood them. According to Hamblin, Perkins acknowledged his understanding by nodding his head and signing the waiver card. Perkins did not ask for an attorney or ask to stop the interview. Hamblin stated that he did not coerce or threaten Perkins into giving a statement and did not promise him anything in exchange for a statement. In addition to introducing the videotape, the State also introduced the written waiver signed by Perkins which lists the statutory warnings. Perkins signed his name below the sentence which reads: "I have received and understand the warning on the other side of this card. I agree to waive these Rights and make a Statement." Perkins contends his statement was not voluntary because he did not read the waiver card before signing it and was not asked if he wanted to waive his rights. According to Perkins, his failure to read the statutory rights and the officer's instruction to sign the waiver without first inquiring whether he wanted to waive his rights renders the confession involuntary. Nothing in article 38.22 requires an accused to read the statutory warnings card. It is only required that the accused receive the warnings and then knowingly, intelligently and voluntarily waive the rights set out in the warnings. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2, 3(a) (West 1979 & West Supp. 2000). According to the transcription of Perkins's statement, the statutory warnings were read to him, he stated that he understood what was read and signed a card waiving his rights. Perkins did not attempt to exercise any of the statutory rights. See Delgado v. State, 840 S.W.2d 594, 597 (Tex. App.--Corpus Christi 1992, no pet.) (where accused was read statutory rights, understood them, did not seek to exercise any right and without evidence of coercion or evidence of incompetency, trial court correctly held confession was voluntary). This Court has previously held that a similar instruction to sign a waiver of rights was sufficient. See Hernandez v. State, 952 S.W.2d 59 (Tex. App.--Austin 1997), vacated on other grounds, 957 S.W.2d 851 (Tex. Crim. App. 1998) (case vacated and remanded for appellate court to reconsider whether confession was voluntary under standards announced in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Hernandez challenged the admissibility of his videotaped statement contending he did not voluntarily and knowingly waive his rights. In support of his position, Hernandez relied on the failure of the videotape to show that he understood his rights prior to giving his statement. When asked whether he understood his rights, his recorded response was unintelligible. Id. at 64. The transcript of the recording, however, revealed that after the unintelligible response, the police officer read Hernandez the acknowledgment and waiver of rights form and showed him where to sign "so that it will be known that you understood those" rights. Id. Hernandez then signed the form as shown on the videotape. Id. This Court concluded that Hernandez acknowledged his understanding of his rights and that he knowingly, intelligently and voluntarily waived his rights before giving his statement. Id. at 65. Like Hernandez, Perkins was instructed to sign the waiver of rights card without any express inquiry whether he wanted to waive the statutory rights. Accordingly, we reject Perkins's argument that his failure to read the statutory warnings or the failure of the officer to ask whether he wanted to waive his rights render the statement involuntary. Perkins also argues that his inquiry of Hamblin after his rights were read indicates his statement was not voluntary. After signing the waiver, Perkins asked Hamblin "what is this about?" Perkins contends on appeal that he was asking about his rights. When asked on cross-examination, Hamblin explained that he believed Perkins was asking about the subject of the interrogation. Informing the accused of the full subject matter of the interrogation is not essential to a finding of valid waiver of Fifth Amendment rights. Corwin v. State, 870 S.W.2d 23, 32 (Tex. Crim. App. 1993) (citing Colorado v. Spring, 479 U.S. 564, 577 (1987)). The trial court was free to give weight to Hamblin's testimony and to conclude from its own review of the recorded statement whether Perkins's inquiry related to his Miranda warnings or the subject of the interrogation. We will not disturb the trial court's fact findings which relate the credibility and demeanor of witnesses. See Guzman 955 S.W.2d at 89. We overrule Perkins's first issue. In his second issue, Perkins contends that because he did not expressly waive his rights, the statement was not voluntary. An explicit waiver of constitutional rights is not required. Mays v. State, 904 S.W.2d 920, 924 (Tex. App.--Fort Worth 1995, no pet.). Waiver can be clearly inferred from the actions and words of the person interrogated. See North Carolina v. Butler, 441 U.S. 369, 373 (1979). A court may find an intelligent and understanding rejection of the right to counsel where the accused did not expressly state as much. Id. n.4. Similarly, the refusal of an accused to sign a written waiver does not preclude a finding of waiver of the statutory warnings. See id. at 376 n.5. By acknowledging his understanding of the statutory rights, signing the waiver and talking with Detective Hamblin without asking for an attorney or terminating the interview, Perkins's conduct supports the trial court's conclusion that Perkins voluntarily and knowingly waived his rights. We overrule Perkins's second issue. Conclusion Having overruled both of Perkins's issues, we affirm the trial court judgment. Marilyn Aboussie, Chief Justice Before Chief Justice Aboussie, Justices Kidd and Smith Affirmed Filed: April 13, 2000 Do Not Publish y warnings were read to him, he stated that he understood what was read and signed a card waiving his rights. Perkins did not attempt to exercise any of the statutory rights. See Delgado v. State, 840 S.W.2d 594, 597 (Tex. App.--Corpus Christi 1992, no pet.) (where accused was read statutory rights, understood them, did not seek to exercise any right and without evidence of coercion or evidence of incompetency, trial court correctly held confession was voluntary). This Court has previously held that a similar instruction to sign a waiver of rights was sufficient. See Hernandez v. State, 952 S.W.2d 59 (Tex. App.--Austin 1997), vacated on other grounds, 957 S.W.2d 851 (Tex. Crim. App. 1998) (case vacated and remanded for appellate court to reconsider whether confession was voluntary under standards announced in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). Hernandez challenged the admissibility of his videotaped statement co