Kinte L. Sargent v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00346-CR
KINTE L. SARGENT APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Introduction
Appellant Kinte L. Sargent appeals his conviction for possessing a
controlled substance with intent to deliver, asserting that the trial court erred by
denying his motion to suppress a recorded interview in which he admitted that
drugs seized during a search were his. We affirm.
1
See Tex. R. App. P. 47.4.
Background Facts and Procedural History
Appellant was playing video games in a Fort Worth duplex with Cedric and
Cory Finley when narcotics officers, executing a search warrant, entered through
the front door. Appellant ran from the living room toward a bedroom before
stopping in the hallway and lying down on the floor. He told officers securing the
duplex as they walked by that any drugs they found belonged to him.
Once the duplex was secured, Officer Thomas Bulger led Appellant
outside and placed a tape recorder between them on the hood of a pickup truck
parked in the driveway. He turned the recorder on, read Appellant the Miranda
warnings,2 and recorded Appellant admitting that the drugs seized in the duplex
were his.
Officers searching the kitchen found digital scales and a large, black
plastic bag in a cupboard. The bag contained approximately one hundred grams
of crack cocaine divided into smaller plastic bags.
The officers arrested Appellant, and he was charged with possession of
four or more but less than two hundred grams of cocaine with intent to deliver.
Before trial, he filed a motion to suppress his recorded statement, claiming that
its admission would violate his rights under provisions of the state and federal
constitutions and the code of criminal procedure. The trial court denied the
motion to suppress after a hearing.
2
See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).
2
At trial, Officer Bulger testified that as soon as the officers entered the
duplex, Appellant spontaneously admitted owning all the drugs. Appellant did not
object to this testimony. Officer Bulger further testified that he subsequently
recorded an interview with Appellant during which Appellant reiterated that all the
drugs were his. The recording was admitted in evidence and published to the
jury.3 After the State rested, Cedric Finley testified for the defense that he did not
hear Appellant claim that the drugs were his.
The jury found Appellant guilty and assessed his punishment at thirty-five
years’ confinement. The trial court sentenced him accordingly.
Issues on Appeal
In six issues, Appellant claims that the trial court abused its discretion by
admitting his recorded statement in violation of the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution; article 1, section
9 of the Texas constitution; and articles 1.04, 38.22 and 38.23 of the Texas Code
of Criminal Procedure. Appellant combines all six issues and argues that his
recorded statement should have been suppressed because (1) the officer’s
warning was an improper statement of the law; and (2) Appellant did not
3
Before trial, the driveway recording of the interview was copied to two
compact discs, marked State’s Exhibits 1 and 11. State’s Exhibit 1 contained the
original recording and two redacted versions that the prosecutor had prepared
anticipating potential objections at trial. State’s Exhibit 1 was admitted and
published to the trial court at the pretrial hearing. State’s Exhibit 11 contained
only the original unredacted recording and was admitted at trial and published to
the jury. Neither redacted version was used at trial.
3
expressly state that he understood his rights and that he voluntarily, knowingly,
and intelligently waived them.
Initially, the State responds that we need not consider all of Appellant’s
issues because he did not argue them all at the pretrial hearing. Specifically, the
State points out that Appellant did not argue to the trial court that admitting the
statement would violate the Texas constitution, article 1.04 of the code of criminal
procedure, and the Fourth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution. Thus, the State argues, Appellant has waived all but
his claims under the Fifth Amendment and article 38.22 of the code of criminal
procedure.
In support of this argument, the State relies on appellate rule 33.1(a) and
two cases from the court of criminal appeals.4 Neither of the cases cited by the
State, however, involves a trial court’s denial of a motion to suppress, as is the
case here. Moreover, rule 33.1(a) states that as a prerequisite for presenting a
complaint for appellate review, the record must show that the complaint was
made to the trial court by a timely request, objection or motion that stated the
grounds for the sought-after ruling with sufficient specificity to make the trial court
aware of the complaint. Tex. R. App. P. 33.1(a)(1); see Mosley v. State, 983
4
The State cites Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.
2000) for the proposition that error under the Sixth Amendment Confrontation
Clause may be waived; and Gallo v. State, 239 S.W.3d 757, 758 (Tex. Crim.
App. 2007) for its holding that the appellant’s trial objection in that case did not
comport with his argument on appeal and, therefore, that his complaint on appeal
was not preserved.
4
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.
1070 (1999). The record shows that Appellant timely filed a motion to suppress,
that the motion plainly invokes the provisions upon which he bases his appellate
claims for relief, and that the trial court denied the motion. Initially, therefore,
Appellant preserved all his claims for review. See Tex. R. App. P. 33.1(a)(1);
Mosley, 983 S.W.2d at 265; Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim.
App. 2004).
We say initially because, although Appellant cited state and federal
constitutional provisions as grounds for relief in both his motion to suppress and
in his brief, he does not distinguish his state and federal constitutional claims or
provide substantive argument in support of each. Specifically, he does not argue
how the Texas constitution affords more protection than its federal counterpart.
Accordingly, of his constitutional claims, we consider only those relying on the
United States Constitution and we disregard those based upon the Texas
constitution. See Welch v. State, 93 S.W.3d 50, 52 n.5 (Tex. Crim. App. 2002);
Heitman v. State, 815 S.W.2d 681, 690–91 n.23 (Tex. Crim. App. 1991).
Appellant’s second and fifth issues, therefore, are overruled. We now turn to the
remaining ones.
Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. 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).
5
In reviewing the trial court’s decision, we do not engage in our own factual
review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.
State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial
judge is the sole trier of fact and judge of the credibility of the witnesses and the
weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.
Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),
modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Therefore, we give almost total deference to the trial court’s rulings on
(1) questions of historical fact, even if the trial court’s determination of those facts
was not based on an evaluation of credibility and demeanor, and (2) application-
of-law-to-fact questions that turn on an evaluation of credibility and demeanor.
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.
Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002). But when application-of-law-to-fact questions do not turn on the credibility
and demeanor of the witnesses, we review the trial court’s rulings on those
questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d
604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.
Stated another way, when reviewing the trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable to the trial
court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818
(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we
determine whether the evidence, when viewed in the light most favorable to the
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trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.
We then review the trial court’s legal ruling de novo unless its explicit fact
findings, that are supported by the record, are also dispositive of the legal ruling.
Id. at 818.
We must uphold the trial court’s ruling if it is supported by the record and
correct under any theory of law applicable to the case even if the trial court gave
the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.
Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.
2003), cert. denied, 541 U.S. 974 (2004).
The Statement
We begin by examining the entire statement, which we have transcribed
and reproduced below:
OFFICER: Hey, what’s your last name, dude?
APPELLANT: S-A-R-G-E-N-T.
OFFICER: Hang on, what?
APPELLANT: S-A-R-G-E-N-T.
OFFICER: S-A-R-G-E-N-T?
APPELLANT: Uh-huh.
OFFICER: Your first name?
APPELLANT: K-I-N-T-E.
OFFICER: K-I-N-T-E? Middle?
APPELLANT: L.
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OFFICER: L?
APPELLANT: Yes, sir.
OFFICER: What’s your birthday?
APPELLANT: 2-6-77.
OFFICER: 2-6-77. You know what today’s date is?
APPELLANT: Unh-uh, but, let me tell you [inaudible], cut that
off so I can tell you something first, please.
OFFICER: Cut off the recording?
APPELLANT: So I can tell you something first. That’s going
to [expletive deleted] me in the end.
OFFICER: You know what today’s date is?
APPELLANT: No sir.
OFFICER: Hey, is this the 30th? 30th? All right. I’m going to
read you your warning. Your adult warning. These are your rights,
OK? You have the right to remain silent, not make any statement at
all. Any statement you make may be used against you at your trial.
Any statement you make may be used as evidence against you in
court. You have the right to have a lawyer present to advise you
prior to and during any questioning. If you are unable to employ a
lawyer, you have the right to have a lawyer appointed to you to
advise you prior to and during any questioning. You have the right
to terminate the interview at any time. You understand that? Do you
have any questions about any of those? OK. Do you know who
lives at this house?
APPELLANT: Unh-uh.
OFFICER: You don’t know who lives here?
APPELLANT: Oh, the lady lives here.
OFFICER: Who is she?
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APPELLANT: Oh, you don’t know [inaudible], you know what
I’m saying [inaudible] please don’t make me do that. I’m, I already
told you that it was mine.
OFFICER: OK, the only statement I can use against you in
court is a written statement or a recorded statement. Like I told you,
if you say that the drugs in this house are yours then you’re going to
have to claim that they’re yours either recorded or written or I can’t
use it.
APPELLANT: [inaudible] You not going to take anybody to
jail? Or are you just going to take me to jail?
OFFICER: If I am convinced that everything in this house
that’s illegal that we are interested in belongs to you, then you are
going to be the only person charged.
APPELLANT: That’s what I want to do.
OFFICER: OK, do you know who lives in this house?
APPELLANT: That girl right there, [inaudible], that girl right
there, Rene lives in there.
OFFICER: Rene. Do you know who she is? I mean is she
related to you or a friend or what?
APPELLANT: She’s not a friend; she’s not a lady friend.
OFFICER: OK. So, why are you over here?
APPELLANT: I’m over here because my other cousin, one of
my other cousins, the skinny dude, we, we been over here chillin.
OFFICER: What’s his name?
APPELLANT: Cedric.
OFFICER: Cedric. OK. So, you’re hanging out with him.
OK. During the search warrant at this house we found around four
ounces of crack cocaine. Do you know anything about that?
APPELLANT: It’s mine.
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OFFICER: That belongs to you?
APPELLANT: Yes, sir.
OFFICER: How did it get to this house?
APPELLANT: I, I put it off in there.
OFFICER: How did it get to this house?
APPELLANT: Oh, I put it off in there.
OFFICER: Did you drive it over here?
APPELLANT: [inaudible] I drive it over here. It’s mine. I put
it off in there. I didn’t drive it over here but I put it off in there.
OFFICER: You understand what my job is?
APPELLANT: I’m not going to tell you all the shit that we put
off in there.
OFFICER: OK. You understand what my job is?
APPELLANT: Yes, sir.
OFFICER: OK. My job is to find drug dealers and make the
best case that I can against them. OK? From the information that I
got about you, you’re a person that sells cocaine and crack cocaine.
That’s why we’re here tonight. OK. So, it’s kind of weird that if we
come over here, you’re here, and you’re car is here, and we find
crack cocaine and you’re wanting to take responsibility for it.
APPELLANT: It’s weird?
OFFICER: Yeah, and now you’re telling me somebody gave it
to me.
APPELLANT: I’m, check, because the reason why is because
nobody in the house except me knew anything about it.
OFFICER: OK. Why was it here?
10
APPELLANT: [Sigh], [inaudible] any more questions that
that’s not even, that’s not has nothing to do with why it’s here is
having to do with its mine and you know what I did with it.
OFFICER: OK. So it’s here for somebody to sell. And you’re
saying . . . .
APPELLANT: No, not out of this house. It’s being hibernated
like.
OFFICER: I gotcha.
APPELLANT: I hid it off in there.
OFFICER: I gotcha. OK. So it’s just here stashed.
APPELLANT: I hid it off in there.
OFFICER: Gotcha. Do you know what it’s packaged in?
APPELLANT: Yeah, off in a black bag. God!
OFFICER: So, all you’re telling me is that you brought it over
here to hide to keep for a later time. Is that pretty much it?
APPELLANT: I was going to smoke it.
OFFICER: Four ounces?
APPELLANT: Hell, yeah, [laughs] I smoke the shi–
OFFICER: All right. All right, dude, [inaudible], you deal
drugs. You know that you deal drugs. That story’s wrong. Don’t try
to side-step it.
APPELLANT: I ain’t going to tell you that I deal drugs, officer.
OFFICER: I thought you said you wanted to be honest with
me.
APPELLANT: I’m being honest with you.
OFFICER: OK. Then do it.
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APPELLANT: But I’m saying you told me that anything I say
going to be held and accounted against me . . . .
OFFICER: Yes.
APPELLANT: I done told you it was mine. I ain’t going, um, I
ain’t going to, um, uh, whatever you call it . . .
OFFICER: Incriminate yourself?
APPELLANT: . . . any more than what I’ve already did.
OFFICER: Well, you, you’re kind of at a crossroads here
because you’re saying this stuff belongs to me and nobody else in
this house. But that’s all you want to say. You don’t want to talk
about anything else. That puts me in a bad situation. I’m trying to
bring this case to the conclusion.
APPELLANT: Come on man, you know that I told you it’s
mine and nobody else knew. That’s how I want to tell you. Nobody
else knew it was in there except me. And that’s it, it was mine, it
belonged to me, Kinte Sargent.
OFFICER: Perfect. Is there anything else in this house illegal
that belongs to you that they found or gonna? Nothing at all?
APPELLANT: Nothing else.
OFFICER: OK. Anything else you want to talk to me about?
No.
Discussion
In his first and third issues, Appellant contends that the trial court erred by
admitting the recording because it contains no expression from Appellant that he
understood his rights after Officer Bulger read them to him. He asserts that
Officer Bulger never asked him if he understood what his rights were. The
recording disproves this assertion.
12
Appellant is correct, though, that the record shows that no express waiver
of his rights appears on the recording. But the law does not require that the
recording reflect an express waiver of rights. Rocha v. State, 16 S.W.3d 1, 12
(Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1, 16 (Tex. Crim. App.
1994), cert. denied, 516 U.S. 920, 116 S. Ct. 314 (1995). And in Berghuis v.
Thompkins, the United States Supreme Court recently affirmed that waivers need
not be expressly stated but can be implied from all the circumstances. 130 S. Ct.
2250, 2261 (2010). The State must prove, however, that the accused did, in fact,
knowingly and voluntarily waive his rights; that is, it must prove that the waiver
was made with the full understanding of the right being abandoned and of the
consequences of that abandonment with the further burden of proving that the
decision was made freely and deliberately without coercion or deception. Id. at
2261–62.
On the recording in this case, Officer Bulger read Appellant his rights,
asked him if he understood them, and asked him if he had any questions about
any of them. Thereafter, Appellant kept talking. Moreover, as the exchange
below demonstrates, Appellant expressed a clear and fairly sophisticated
understanding of his rights and a willingness to freely incriminate himself––up to
a point.
APPELLANT: I ain’t going to tell you that I deal drugs, officer.
OFFICER: I thought you said you wanted to be honest with
me.
13
APPELLANT: I’m being honest with you.
OFFICER: OK. Then do it.
APPELLANT: But I’m saying you told me that anything I say
going to be held and accounted against me . . . .
OFFICER: Yes.
APPELLANT: I done told you it was mine. I ain’t going, um, I
ain’t going to, um, uh, whatever you call it . . .
OFFICER: Incriminate yourself?
APPELLANT: . . . any more than what I’ve already did.
Finally, Appellant demonstrated that he understood that what he told the officer
could result in his incarceration:
APPELLANT: [inaudible] You not going to take anybody to
jail? Or are you just going to take me to jail?
OFFICER: If I am convinced that everything in this house
that’s illegal that we are interested in belongs to you, then you are
going to be the only person charged.
APPELLANT: That’s what I want to do.
Contrary to Appellant’s assertion on appeal, our review of the recording
shows that Appellant expressed sufficient understanding of his rights to control
how much he would incriminate himself, that is, he was willing to go up to a point
and no further: admitting that he possessed drugs, but denying intent to distribute
them. We hold, therefore, that the recording contains Appellant’s expressed
understanding of his rights. Further, Appellant has not argued nor is there
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evidence that he was coerced or intimidated into making the statements he
made. Accordingly, we overrule Appellant’s first and third issues.
In his fourth and sixth issues, Appellant contends that the trial court erred
by admitting the recording because the warning the officer gave him was
improper.
Article 38.22 requires the following warning be given an accused before a
recorded statement may be used against him:
(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.
Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2) (Vernon 2005).
As the transcribed recording reveals, Officer Bulger recited the above warning,
practically verbatim. During the course of the conversation and in response to
Appellant’s apparent concern over implicating someone who lived in the duplex
and his desire to take sole responsibility for the drugs that were seized, the
officer explained, ―The only statement I can use against you in court is a written
statement or a recorded statement. Like I told you, if you say that the drugs in
15
this house are yours then you’re going to have to claim they’re yours either
recorded or written or I can’t use it.‖
Appellant characterizes the officer’s warning as ―contradictory and
improper: Any statement you make may be used against you and no statement
you make may be used against you unless it’s written or recorded.‖ This is a
mischaracterization.
First, we note that on the recording Appellant admitted owning the drugs
even before the officer gave what Appellant characterizes as the contradictory
part of the warning. Moreover, the record shows that while Appellant may have
balked at having what he said recorded and been unwilling to incriminate anyone
else, he was anxious to talk and take sole responsibility for the drugs found in the
duplex. Officer Bulger testified at trial,
The whole time -- as soon as we made entry he was saying,
―[E]verything is mine, everything is mine; nobody knew anything but
me. Anything you find is mine. There is drugs here,‖ and just on
and on and on. It was hard to get him to be quiet.
Further, the recording indicates that the reason Appellant was so eager to
talk was to ensure that no one else would be held responsible for the drugs.5
After the officer assured him that he would be the only person charged if he
convinced the officer, through a written or recorded statement, that everything
5
Appellant told the officer, ―Nobody in the house except me knew anything
about it.‖
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illegal in the house belonged to him, Appellant responded, ―That’s what I want to
do.‖
We hold that Officer Bulger’s telling Appellant that he could not use a
statement from Appellant unless it was written or recorded was not given as part
of the required warning. Appellant’s appropriate questions and responses
demonstrate that he understood his rights, including that the recording could be
used against him and he actively took full responsibility for all illegal substances
found in the search. See Berghuis, 130 S. Ct. at 2261.
We have reviewed the evidence in the light most favorable to the trial
court’s ruling and hold that the evidence supports the trial court’s express finding
that Appellant was properly warned and that he freely and voluntarily made the
statements contained on the recording. Accordingly, we overrule Appellant’s
fourth and sixth issues.
Conclusion
Having overruled all of Appellant’s issues, we affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: April 7, 2011
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