Opinion
No. 05-07-00319-CR
Opinion issued April 10, 2008. DO NOT PUBLISH.Tex. R. App. P. 47
On Appeal from the 336th Judicial District Court Grayson County, Texas, Trial Court Cause No. 054523-336.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
Gary Lee Ransom appeals his conviction for theft of property valued at $20,000 or more but less than $100,000. See Tex. Pen. Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2007). After finding appellant guilty as charged, the jury assessed punishment, enhanced by two prior felony convictions, at forty years' confinement. In a single issue, appellant claims his substantial rights were violated when his custodial statement was used against him because he did not "intelligently" waive his rights under article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon 2005). We affirm the trial court's judgment. Appellant was found in possession of a stolen mini Cooper vehicle. Officer Charles Mauldin detained appellant until Detective Richard Ferguson arrived at the scene. Appellant was arrested and transported to the Sherman Police Department where he was interviewed by Detective Ferguson. The interview was videotaped. Appellant was subsequently charged with and convicted of theft of property valued at $20,000 or more but less than $100,000. This appeal ensued. Appellant initially questions whether the trial judge erred in failing to make findings of fact and conclusions of law regarding his waiver of rights as required by article 38.22 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6; Urias v. State, 155 S.W.3d 141, 142 (Tex.Crim.App. 2004). We agree. On January 22, 2008, we ordered the trial judge to make findings of fact and conclusions of law regarding the voluntariness of appellant's statement and file a supplemental clerk's record containing said findings of fact and conclusions of law. On March 31, 2008, the trial judge filed findings of fact and conclusions of law. Because the record now contains the necessary article 38.22 findings of fact and conclusions of law, appellant's argument is moot. In his second argument, appellant claims his custodial statement was improperly used against him because "he did not `intelligently' waive his rights under section 38.22." Appellant contends his substantial rights were violated and we must reverse the jury's verdict and remand this cause for a new trial. We review the trial judge's decision to admit or exclude an article 38.22 statement under an abuse of discretion. Maldonado v. State, 998 S.W.2d 239, 246 (Tex.Crim.App. 1999) (holding trial judge did not abuse her discretion in refusing to suppress recorded statement and transcript); Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App. 1995). In reviewing a ruling to admit such a statement, we give almost total deference to the trial judge's determination of historical facts. Vasquez v. State, 179 S.W.3d 646, 655 (Tex.App.-Austin 2005), aff'd, 255 S.W.3d 541 (Tex.Crim.App. 2007); see Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002). The trial judge is the sole judge of the weight and credibility of the evidence and, absent an abuse of discretion, we will not disturb the trial judge's ruling. Alvarado, 912 S.W.2d at 211. We review de novo mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor. Vasquez, 179 S.W.3d at 655 (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)). We are not at liberty to disturb any finding that is supported by the record. Sells v. State, 121 S.W.3d 748, 767 (Tex.Crim.App. 2003). Article 38.22 codifies the Miranda rights and addresses when written and oral statements of a defendant may be used. See Jones v. State, 944 S.W.2d 642, 650 fn.11 (Tex.Crim.App. 1996); State v. Waldrop, 7 S.W.3d 836, 838 (Tex.App.-Austin 1999, no pet.). Section 3(a) provides
No oral or sign language 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 above 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). The section 2 warning is that, prior to making the statement, the accused received 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;
(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). If the accused "knowingly, intelligently, and voluntarily waived the rights set out" in this warning and the State establishes the remaining section 3 requirements have been met, the oral statement is admissible at trial. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3. An inquiry into the waiver of these rights has two dimensions. First, the waiver must be "voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Ripkowski v. State, 61 S.W.3d 378, 384 (Tex.Crim.App. 2001) (citing Colorado v. Spring, 479 U.S. 564, 573 (1987)); see Moran v. Burbine, 475 U.S. 412, 421 (1986). Second, the waiver must be made "with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Ripkowski, 61 S.W.3d at 384 (citing Spring, 479 U.S. at 573); Moran, 475 U.S. at 421. With respect to the voluntariness issue, appellant does not contend and the record does not show the law enforcement officers intimidated, coerced, or deceived appellant. Thus, we focus on the second issue: whether appellant was aware of his rights and of the consequences of waiver. After reviewing the record and the trial judge's findings of fact and conclusions of law, we conclude the evidence supports the trial judge's finding that appellant was aware of his rights and the consequences of his waiver. The record shows appellant was taken to the Sherman Police Department where he was interviewed by Detective Ferguson. Although appellant began to talk about the mini Cooper, the detective instructed him to wait, asking first for his personal information. Appellant again tried to discuss the facts but Detective Ferguson told appellant he first needed to read him his rights since appellant was in custody. Detective Ferguson then read appellant each of the required rights, pausing after each to allow appellant to respond. Appellant nodded and responded, "Yes, sir," or nodded and replied "Uhm-hm" to each right. Detective Ferguson then asked if appellant understood the rights to which appellant responded, "Yes." Detective Ferguson then asked appellant if, understanding these rights, he wished to speak to him about what happened. Appellant indicated he did, asking if the detective would be writing a statement that appellant would later sign. Appellant asked if the statement could be used later in court to which the detective replied that everything they were going to talk about could be used. Although appellant is soft-spoken and often difficult to understand on the video recording, he nevertheless responded affirmatively when asked whether he understood these rights as they had been read to him. He further indicated he understood the rights by asking about a written statement and whether he would sign it. Furthermore, in a hearing outside the jury's presence, Detective Ferguson testified about appellant's interview. The detective testified he read each of appellant's rights to him, asking him each time whether he understood the right and wanted to waive it. He "took great steps to make sure [appellant] understood his Miranda warning" and believed appellant did understand them. It was "clear" to Detective Ferguson that appellant waived his rights and "was going to speak to [the officer] voluntarily." Because the record supports the trial judge's finding that appellant intelligently waived his Miranda rights and the conclusion that appellant's statement was admissible, see Randle v. State, 89 S.W.3d 839, 843 (Tex.App.-Houston [1st Dist.] 2002, pet. ref'd), we cannot conclude the trial judge abused her discretion. We overrule appellant's second argument. Finally, we note the judgment in this case states the jury found the first enhancement paragraph true and the second enhancement paragraph not true. However, the jury found both enhancement paragraphs true. If a written sentence fails to conform to the jury's verdict, we have the power and authority to reform and correct the written sentence. See Shavers v. State, 881 S.W.2d 67, 79 (Tex.App.-Dallas 1994, no pet.); Asberry v. State, 813 S.W.2d 526, 531 (Tex.App.-Dallas 1991, pet. ref'd) (en banc); Hankins v. State, 180 S.W.3d 177, 183 (Tex.App.-Austin 2005, pet. ref'd). We modify the trial court's judgment to reflect the jury found "True" on the second enhancement/habitual paragraph and, as modified, we affirm the trial court's judgment.