Raymond Paul Garner v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00052-CR
RAYMOND PAUL GARNER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 271ST DISTRICT COURT OF WISE COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Raymond Paul Garner of possession of four
grams or more but less than 200 grams of methamphetamine, and, upon his
pleas of true to the enhancement paragraphs, the trial court sentenced him to
thirty years’ confinement. Appellant brings a single issue on appeal, arguing that
the trial court reversibly erred by denying his motion to suppress his oral
1
See Tex. R. App. P. 47.4.
statement. Because the trial court committed no reversible error, we affirm the
trial court’s judgment.
At the police station after his arrest, Appellant was taken into a room to be
questioned. The following conversation took place between Appellant and the
police officer:
Officer: I’m going to read you your rights, Raymond, since you
are in here in custody.
Appellant: inaudible statement
Officer: I’ll read you your rights, which you may know, I’m going
to read them to you anyway. Then me and you are
going to talk.
You have the right to remain silent. Anything you say
can and will be used against you in a court of law. You
have the right to talk to a lawyer and to have him
present while you are being questioned. If you cannot
afford to hire a lawyer, one will be appointed to
represent you before any questioning if you wish. And
you can decide at any time to exercise these rights and
not answer any questions or make any statements. Do
you understand that?
Appellant: Yeah. (Looking around the room)
After this court abated the appeal and remanded the case to the trial court for the
entry of findings of fact and conclusions of law, the trial court issued the
following:
FINDINGS OF FACT
1. Appellant was arrested and charged with Possession of a
Controlled Substance on January 8, 2011.
2
2. On January 10, 2011, while Appellant was still in custody,
Wise County Sheriff’s Investigator, Chad Lanier, conducted a
custodial interview with the Appellant which was both audio
and video recorded. The recording was admitted in its entirety
as State’s Exhibit Number 1 (hereinafter referred to as “SX 1”)
for purposes of the hearing on the Appellant’s Motion to
Suppress.
3. SX 1 showed that prior to questioning the Appellant,
Investigator Lanier informed Appellant he was reading
Appellant his rights because Appellant was in custody.
4. SX 1 showed that Investigator Lanier . . . made the following
statements to the Appellant when he read the Appellant his
rights:
a. You have the right to remain silent;
b. Anything you say can and will be used against
you in a court of law,
c. You have the right to talk to a lawyer and have
on[e] present while you are being questioned;
d. If you cannot afford to hire a lawyer, on[e] will be
appointed to represent you before any
questioning if you wish;
e. And you can decide at any time to exercise these
rights and not answer any questions or make any
statements.
5. SX 1 showed that at the conclusion of reading the Appellant
his rights, Investigator Lanier asked the Appellant, “Do you
understand that?” Appellant audibly responded on the
recording (SX 1), “Yeah.”
6. Nothing on the recording (SX1) indicated the Appellant did not
understand or voluntarily waive his rights before answering
Investigator Lanier’s questions.
7. SX 1 showed that after reading the rights, Investigator Lanier
asked the Appellant a number of questions on different
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subjects including the facts of the drug offense. Appellant
answered the questions appropriately and appeared to
understand the entire conversation.
CONCLUSIONS OF LAW
1. Article 38.22 of the Texas Code of Criminal Procedure,
Sections 2 and 3, require that for an oral statement of an
accused resulting from a custodial interrogation to be
admissible, it must be electronically recorded and the following
warning must be given to the accused:
a. 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;
b. Any statement he makes may be used as
evidence against him in court;
c. He has the right to have a lawyer present to
advise him prior to and during any questioning;
d. 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
e. He has a right to terminate the interview at any
time.
2. Article 38.22, Section 3(e)(2) provides that the accused must
be given the warnings outlined above or “it’s fully effective
equivalent” and that . . . prior to the statement but during the
recording the accused knowingly, intelligently, and voluntarily
waive the rights set out in the warning.
3. Case law confirms that the warning given need not be in the
exact language of the statute so long as it is in substantial
compliance with the words of the statute. A differently worded
warning substantially complies with the required warning if it
has the same or equivalent meaning.
4. The warning given to the Appellant by Investigator Lanier had
the same or equivalent meaning to the warning required by
4
Article 38.22. The first two warnings required by Article 38.22
largely overlap and the term “court’’ as used by Investigator
Lanier is broader than and encompasses the term “trial” which
was omitted in Lanier’s warning and therefore did not change
the meaning of the warning. Investigator Lanier’s statement
that the Appellant had a right “at any time to not answer any
questions or make any statements[]” was equivalent to the
omitted warning that the Appellant could terminate the
interview at any time and did not change the meaning of the
warning.
5. A waiver of rights under the oral confession statute does not
require an “express verbal statement” that an accused waives
those rights. The waiver may be implied through an
(Appellant’s) silence, coupled with an understanding of his
rights and a course of conduct indicating waiver. Where the
prosecution shows that the warnings were given and
understood by the accused, the accused’s uncoerced
statement establishes an implied waiver of the right to remain
silent. The totality of the circumstances under which Appellant
waived his rights and gave his statement clearly show that the
waiver was voluntarily given.
6. The Appellant’s statements in response to Investigator
Lanier’s questions as depicted on SX1 were given after
knowingly, intelligently, and voluntarily waiving the rights
expressed which were equivalent in meaning to the rights
required by Article 38.22 and were therefore admissible as
evidence. [Citations omitted.]
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 2 We give almost total deference to a trial court’s
rulings on questions of historical fact and application-of-law-to-fact questions that
2
Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
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turn on an evaluation of credibility and demeanor, but we review de novo
application-of-law-to-fact questions that do not turn on credibility and demeanor. 3
Article 38.22, section 3(a) of the Texas Code of Criminal Procedure sets
the terms under which an oral statement given by a defendant may be used.
That subsection provides that
[n]o oral . . . statement of an accused made as a result of 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 warning in Subsection (a) of Section 2 . . .
and the accused knowingly, intelligently, and voluntarily waives any
rights set out in the warning[.] 4
Section 2(a) of that same article sets out the required warnings that the
accused must receive. That subsection provides that
the accused, prior to making the statement, [must] either receive[]
from a magistrate the warning provided in Article 15.17 of [the code
of criminal procedure] or receive[] from the person to whom the
statement is made a warning 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;
3
Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
4
Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(2) (West Supp. 2013).
6
(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. 5
Section 3(e) provides,
The courts of this state shall strictly construe Subsection (a) of this
section and may not interpret Subsection (a) as making admissible a
statement unless all requirements of the subsection have been
satisfied by the state, except that . . . the accused was given the
warning in Subsection (a) of Section 2 above or its fully effective
equivalent. 6
In arguing that he was not properly warned and that he did not intelligently,
knowingly, or voluntarily waive his rights, Appellant contends that from the video,
it appears that he was very confused and that the officer was speaking very
quickly. Appellant also argues that the warnings must strictly comply with the
mandate of article 38.22, section 2(a) and must convey the exact meaning of the
warnings. He relies on State v. Subke, an opinion of our sister court in Dallas. 7
The Subke court held that “a warning that conveys the exact meaning of
the statute in slightly different language is sufficient to comply with the
requirements of the statute.” 8 Appellant argues that the warnings actually given
did not strictly comply with the mandate of article 38.22 and that they did not
5
Id. art. 38.22, § 2(a).
6
Id. art. 38.22, § 3(e)(2).
7
918 S.W.2d 11, 14 (Tex. App.—Dallas 1995, pet. ref’d) ( op. on reh’g).
8
Id.
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contain the fully effective equivalent of the required warnings. Specifically, the
officer did not state that Appellant had the right to terminate the interview at any
time. Instead, Appellant was told that he could “decide at any time to exercise
these rights and not answer any questions or make any statements.”
Additionally, the officer never informed Appellant that “any statement he makes
may be used against him at his trial.” Instead, the officer informed Appellant that
any statement he made could be used against him in a “court of law.” Appellant
argues that these differences in wording between the statutory warnings and the
warnings actually given are substantive and that therefore no substantial
compliance exists.
Appellant also argues that he appeared confused while he was being
warned and that that appearance created a question of whether he understood
the warnings as they were read to him. He argues that his responses concerning
the warrants were barely audible and were short statements such as “yeah.”
Appellant additionally argues that the officer did not appear to give him much of
an option as to whether he wanted to give the statement. Instead, the officer told
Appellant that he was giving Appellant the warnings, and then they were going to
talk. Consequently, Appellant argues, his waiver was not knowingly or
intelligently given. Appellant argues that his invalid waiver rendered his oral
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statement inadmissible and that the trial court, therefore, reversibly erred by
denying his motion to suppress. 9
The State argues that the record shows that the warning given to Appellant
by the officer is the fully effective equivalent of the required warning. We agree.
The Texas Court of Criminal Appeals has held that substantial compliance
with the required statutory warning is sufficient. 10 We hold that the warning that
Appellant could “decide at any time to exercise these rights and not answer any
questions or make any statements” is substantially equivalent to “terminate the
interview.” 11 An argument could be made that the warning as given is easier to
understand than the phrase “terminate the interview.” Likewise, we hold that
“court at law” used by the officer is substantially equivalent to “trial” in the
statutory warning. 12
It is better practice to comply with the statute exactly. The legislature has
clearly stated the warnings required to be given and law enforcement personnel
vary from the statutory language at their peril. The warnings actually given in this
case, however, substantially comply with the required warnings. Nothing in the
record shows that Appellant did not understand the warnings and did not
9
See State v. Dixon, 206 S.W.3d 587, 590–91 (Tex. Crim. App. 2006).
10
Bible v. State, 162 S.W.3d 234, 240 (Tex. Crim. App. 2005).
11
See Sosa v. State, 769 S.W.2d 909, 915–16 (Tex. Crim. App. 1989).
12
See Bible, 162 S.W.3d at 240–41.
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knowingly, intelligently, and voluntarily waive his right to remain silent before
answering the officer’s questions.
Under the facts of this case and the record before us, we hold that the trial
court did not err by finding the warnings adequate and the waiver effective or by
denying Appellant’s motion to suppress the statement and admitting the
statement into evidence. We overrule Appellant’s sole issue and affirm the trial
court’s judgment.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
LIVINGSTON, C.J. and GABRIEL, J. concur without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 5, 2014
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