Jeremy Chad Bukowski v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00095-CR
JEREMY CHAD BUKOWSKI,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F45969
MEMORANDUM OPINION
In four issues, appellant, Jeremy Chad Bukowski, challenges his conviction for
capital murder. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp. 2013). Specifically,
appellant contends that: (1) police did not have reasonable suspicion to stop him; (2)
the trial court erred by failing to include an instruction in the jury charge requiring
unanimity with respect to the alleged felonies underlying the capital-murder offense;
(3) his confession violated the “Texas Confession Statute”; and (4) the trial court
erroneously admitted hearsay evidence during a suppression hearing. We affirm.1
I. APPELLANT’S MOTION TO SUPPRESS
In his first issue, appellant contends that he was arrested pursuant to an illegal
stop. Specifically, appellant argues that law enforcement did not have reasonable
suspicion to pull him over. As such, appellant asserts that the trial court abused its
discretion in denying his first amended motion to suppress.
A. Standard of Review
We review the trial court’s ruling on a motion to suppress evidence for an abuse
of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex.
Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We
give “almost total deference” to the trial court’s findings of historical fact that are
supported by the record and to mixed questions of law and fact that turn on an
evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo
the trial court’s determination of the law and its application of law to facts that do not
turn upon an evaluation of credibility and demeanor. Id. When the trial court has not
made a finding on a relevant fact, we imply the finding that supports the trial court’s
ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-
19 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007).
We will uphold the trial court’s ruling if it is reasonably supported by the record and is
1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite
those facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
Bukowski v. State Page 2
correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,
590 (Tex. Crim. App. 2006).
When ruling on a motion to suppress, 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). When reviewing a trial
court’s ruling on a motion to suppress, we view all of the evidence in the light most
favorable to the ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App.
2008).
When a trial judge makes explicit fact findings regarding a motion to suppress,
an “appellate court [must first] determine whether the evidence (viewed in the light
most favorable to the trial court’s ruling) supports these fact findings.” Kelly, 204
S.W.3d at 818. “The appellate court then reviews the trial court’s legal ruling[s] de novo
unless the trial court’s supported-by-the-record explicit fact findings are also dispositive
of the legal ruling.” Id.
The Fourth Amendment of the United States Constitution protects against
unreasonable searches and seizures by government officials. U.S. CONST. amend. IV; see
Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth
Amendment violation, the defendant bears the initial burden of producing evidence
that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666,
672 (Tex. Crim. App. 2007); see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App.
2009). A defendant satisfies this burden by establishing that a search or seizure
occurred without a warrant. Amador, 221 S.W.3d at 672. Once the defendant has made
Bukowski v. State Page 3
this showing, the burden of proof shifts to the State, which is then required to establish
that the search or seizure was conducted pursuant to a warrant or was reasonable. Id.
at 672-73; Torres v. State, 182 S.W.3d 899, 902 (Tex. Crim. App. 2005).
Whether a search is reasonable is a question of law that we review de novo.
Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by
examining the totality of the circumstances. Id. at 63. It requires a balancing of the
public interest and the individual’s right to be free from arbitrary detentions and
intrusions. Id. A search conducted without a warrant is per se unreasonable unless it
falls within one of the “specifically defined and well-established” exceptions to the
warrant requirement. McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003).
B. Reasonable Suspicion
The Texas Court of Criminal Appeals has recognized three distinct categories of
interactions between police officers and citizens: (1) encounters; (2) investigative
detentions; and (3) arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).
Courts look to the totality of the circumstances to determine into which category an
interaction falls. Crain, 315 S.W.3d at 49.
An investigatory detention occurs when a person yields to an officer’s show of
authority under a reasonable belief he is not free to leave. Id. The inquiry is whether a
reasonable person in the citizen’s position would have felt free to decline the officer’s
requests or otherwise terminate the encounter. Id. “[A] police officer can stop and
briefly detain a person for investigative purposes if the officer has a reasonable
suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the
Bukowski v. State Page 4
officer lacks probable cause.” Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App. 1997)
(quoting Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 (1968)). This
is an objective standard that disregards any subjective intent of the detaining officer and
looks solely to whether an objective basis for the detention exists. Ford v. State, 158
S.W.3d 488, 492 (Tex. Crim. App. 2005). When an officer subjects a defendant to an
investigatory detention, it is the State’s burden to prove the reasonableness of the
warrantless detention. Id.
Reasonable suspicion exists if the officer has specific, articulable facts that, when
combined with rational inferences from those facts, would lead him to reasonably
conclude a particular person actually is, has been, or soon will be engaged in criminal
activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). Whether
reasonable suspicion exists depends on the content of the information known to the
officer as well as its degree of reliability. Martinez v. State, 348 S.W.3d 919, 923 (Tex.
Crim. App. 2011). The State need not, however, establish that a crime actually occurred
prior to the investigatory detention, and a detention or search is unlawful at its
inception may not be validated by what it turns up. State v. Griffey, 241 S.W.3d 700, 704
(Tex. App.—Austin 2007, pet. ref’d); see Florida v. J.L., 529 U.S. 266, 271, 120 S. Ct. 1375,
1379, 146 L. Ed. 2d 254 (2000) (“The reasonableness of official suspicion must be
measured by what the officers knew before they conducted their search.”). The
reasonableness of a temporary detention is examined in terms of the “totality of the
circumstances” at its inception. See Woods, 956 S.W.2d at 38. Individual circumstances
must not be considered in isolation, and the facts known to the officer must amount to
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something more than an inchoate and unparticularized suspicion or hunch. Id. at 35.
Moreover, the Woods Court recognized that “there may be instances when a person’s
conduct viewed in a vacuum, appears purely innocent, yet when viewed in light of the
totality of the circumstances, those actions give rise to reasonable suspicion.” Id. at 38.
There is no requirement that the “facts adduced to give rise to a reasonable
suspicion must show that the detainee has committed, is committing, or is about the
commit, a particular and distinctively identifiable penal offense.” Derichsweiler v. State,
348 S.W.3d 906, 916 (Tex. Crim. App. 2011). The Derichsweiler Court explained that:
Moreover, the detaining officer need not be personally aware of every fact
that objectively supports a reasonable suspicion to detain; rather, the
cumulative information known to the cooperating officers at the time of
the stop is to be considered in determining whether reasonable suspicion
exists.
....
Unlike the case with probable cause to justify an arrest, it is not a sine qua
non of reasonable suspicion that a detaining officer be able to pinpoint a
particular penal infraction. The reason is simple but fundamental. A brief
investigative detention constitutes a significantly lesser intrusion upon the
privacy and integrity of the person than a full-blown custodial arrest. For
this reason, a warrantless investigative detention may be deemed
“reasonable for Fourth Amendment purposes on the basis of a lesser
quantum or quality of information—reasonable suspicion rather than
probable cause. Likewise, because a detention is less intrusive than an
arrest, the specificity with which the articulable information known to the
police must demonstrate a particular penal offense has occurred, is
occurring, or soon will occur, is concomitantly less. It is, after all, only an
“investigative” detention. So long as the intrusion does not exceed the
legitimate scope of such a detention and evolve into a greater
intrusiveness inherent in an arrest-sans-probable-cause, the Fourth
Amendment will tolerate a certain degree of police proaction.
Bukowski v. State Page 6
Id. at 915-17 (internal footnotes & quotations omitted) (emphasis in original); see
Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1987) (op. on reh’g) (noting that
probable cause is to be evaluated by the court on the basis of the collective information
of the police rather than that of only the officer who conducts the search or performs the
act of arresting).
C. Discussion
In its findings of fact and conclusions of law, the trial court found the following
beyond a reasonable doubt:
(1) Deputy Michael Pool[e] personally observed the scene of the Capital
Murder, Robbery[,] and Burglary at the home of the alleged victim, Rick
Warren[,] in Rio Vista, Johnson County, Texas. Deputy Pool[e] conducted
interviews of Michelle Adams, the victim’s sister, and Eddie Reed, the
victim’s brother-in-law at the scene of the offenses. Deputy Pool[e] was
told by Michelle Adams that the defendant, Jeremy Bukowski[,] and his
girlfriend, Jennifer Davis, had recently lived with the victim and had been
evicted from the property by the victim’s mother because they had stolen
items from the victim. Michelle Adams related to Deputy Pool[e] that the
defendant was angry about his eviction and the allegations of theft and
that she believed that he was the one who had committed the offenses
against the victim. Deputy Pool[e] relayed this information to other
deputies and detectives with the Johnson County Sheriff’s Office,
including Leona Yocham, Deputy Clark, Sheriff Bob Alford, and Troy
Fuller.
(2) Troy Fuller responded to the crime scene in Rio Vista and was given
reports by all deputies and other personnel on the scene, including
deputies Poole and Clark and detectives Mike Gaudet and Leona Yocham
and others. Based on the information he received, including information
derived from Michelle Adams and the law enforcement on the scene, he
believed that the defendant, Jeremy Bukowski[,] was the actor in the
offenses, a suspect in the offenses or had been involved in the offenses and
other criminal activity. Based on these beliefs, Troy Fuller contacted the
Johnson County Sheriff’s Dispatch and requested a call to be released to
law enforcement to find the defendant, Jeremy Bukowski, and to stop him
and investigate him for his involvement in the Capital Murder, Robbery[,]
Bukowski v. State Page 7
and Burglary of Rick Warren. Troy Fuller spoke directly to Lee Shastid
and Marshall Whitlock of the Johnson County Sheriff’s Office and asked
them to find, detain[,] and investigate the defendant. Shastid and
Whitlock received information from Troy Fuller and began to look for the
defendant in Burleson, Texas, one of Bukowski’s last known residences.
Troy Fuller had been provided with the name, date of birth, description,
vehicle description[,] and a photo of the defendant, Jeremy Bukowski,
which was provided to Shastid, Whitlock[,] and other members of law
enforcement who were asked to find, detain[,] and investigate the
defendant.
(3) Marshall Whitlock of the Johnson County Sheriff’s Office was also
assigned to the STOP Special Crimes Unit of Johnson County. Whitlock
contacted other members of STOP, including Mark Goetz, Larry Sparks[,]
and Nick Garret[t], and asked them to detain and investigate the
defendant for Capital Murder. Larry Sparks was provided with the name,
date of birth, vehicle description[,] and photograph of the defendant and
began looking for him in Cleburne, Johnson County, Texas. Sparks was
able to find Bukowski using the photograph provided and seeing him in a
vehicle that matched the description of Bukowski’s vehicle at a known
drug location in Cleburne, Texas at 510 E. Willingham Street. Sparks
began following the vehicle and called to Mark Goetz and Nick Garrett to
stop the vehicle for investigation of Bukowski’s involvement in the
Capital Murder.
(4) Mark Goetz pulled along Bukowski’s vehicle and signaled him to pull
over, which he did. Sparks then made contact with Bukowski and asked
him to exit the vehicle and conducted a “Terry frisk” for officer safety.
Sparks asked Bukowski if he had anything in his pockets that would hurt
Sparks. Bukowski said he had “a point (syringe) in his right pocket that
he had used to shoot methamphetamine that morning.” Sparks asked
Bukowski if he had anything illegal in the vehicle and Bukowski admitted
to having scales in the vehicle. Sparks arrested Bukowski for the criminal
offense of Possession of Drug Paraphernalia. Sparks conducted an
inventory of the vehicle and had Officer Nick Garrett transport the vehicle
for impound at the Johnson County Sheriff’s Office.
(5) That under the totality of the circumstances, the stop and detention of
Defendant was lawfully conducted based on reasonable suspicion that an
offense had been committed or was being committed and that Defendant
was involved. The warrantless pat down search of Defendant was
lawfully conducted for officer safety. The arrest of Defendant and the
search incident to that arrest of the vehicle were lawfully conducted after
Bukowski v. State Page 8
the arrest of Defendant of the criminal offense of Possession of Drug
Paraphernalia.
On appeal, appellant complains that Adams did not personally witness the
alleged crimes; therefore, she was not a reliable witness upon which police could rely to
develop reasonable suspicion. We disagree.
The Texas Court of Criminal Appeals has stated that “information provided to
police from a citizen-informant who identifies himself and may be held to account for
the accuracy and veracity of his report may be regarded as reliable.” Derichsweiler, 348
S.W.3d at 914-15. Further, “[i]n such a scenario, the only question is whether the
information that the known citizen-informant provides, viewed through the prism of
the detaining officer’s particular level of knowledge and experience, objectively
supports a reasonable suspicion to believe that criminal activity is afoot.” Id. at 915.
Testimony during the suppression hearing demonstrated that Adams was on the
property the night of the incident and that she made a frantic telephone call to the
police at approximately 2:00 a.m., relaying that: “someone had broken into her
brother’s house, had taken his items, and had hurt him. Those were her words. And
that he was not breathing.”
Upon arriving at the scene, police saw Adams, a resident on the property who
lived about twenty yards away from the crime scene, standing in the driveway “visibly
frantic, arms waving, very distraught.” The police subsequently investigated Warren’s
mobile home and discovered visible damage to the inside door frame, that several of
Warren’s possessions were missing, and Warren “laying [sic] on the floor by his bed
Bukowski v. State Page 9
laying [sic] on his back face up. He was very, very visible in the face and there was [sic]
no visible signs of life.” Based on their investigation of the crime scene, police
determined that Warren had been murdered and that a robbery or burglary had taken
place.
After securing the scene, police spoke with Adams once again. According to
Michael Poole, a patrol deputy for the Johnson County Sheriff’s Office, Adams
recounted the following:
Ms. Adams advised us that approximately 1:00 o’clock she had been
visiting with her brother. They’d been sitting out on the front porch just
kind of talking. She returned to her residence. [Warren] went inside his.
And then maybe an hour later she noticed that his front door was open,
which she advised us was not common behavior for him, and she heard a
loud thud or banging sound as she went to try to make contact with her
brother and she saw two shadows. That was all that she was able to
describe it as. And then she went inside after she awoke [sic] her husband
up. They went in and found Mr. Warren and called us.
When asked who might have been involved in the incident, Adams advised
police that: (1) appellant and his girlfriend, Jennifer Davis, had recently lived in
Warren’s mobile home, which is located in a remote place; (2) equipment used for the
renovation of other mobile homes on the property was missing during the time
appellant and Davis lived in Warren’s mobile home; (3) she confronted appellant about
the missing items and asked Davis to leave; (4) appellant and Davis refused to leave
and continued living in Warren’s mobile home until Adams’s mother arrived from out
of state and had appellant and Davis evicted; and (5) appellant was angry about the
eviction. In fact, Adams told Deputy Poole that the eviction of appellant and his
girlfriend was an “unpleasant experience, it was not a happy parting.” In addition,
Bukowski v. State Page 10
Adams noted that appellant is a member of the Aryan Brotherhood criminal gang and
that his street name is “Bounce.” Several officers testified at the suppression hearing
that they regarded Adams as credible and reliable.
Based on the information obtained from the crime scene and from Adams, police
determined that appellant had a motive to commit the crimes and, thus, was a person of
interest. Police proceeded to obtain information about appellant’s vehicle and his
whereabouts. Appellant was well known to police as a drug user in the area; therefore,
police were able to obtain appellant’s name, date of birth, description, vehicle
description, and a photo of appellant. Appellant was eventually discovered in
Cleburne, Texas, and Officer Mark Goetz effectuated the stop and detention of
appellant, as noted in the trial court’s findings of fact and conclusions of law.
Considering the knowledge of all of the police involved in the investigation, in
addition to the totality of the circumstances, we conclude that the record contains
sufficient, articulable facts that give rise to reasonable suspicion that criminal activity
was afoot and, thus, supports the temporary detention of appellant. See State v. Kerwick,
393 S.W.3d 270, 273-74 (Tex. Crim. App. 2013) (citing Martinez, 348 S.W.3d at 923; York
v. State, 342 S.W.3d 528, 536 (Tex. Crim. App. 2011)); see also Derichsweiler, 348 S.W.3d
915-17; Castro, 227 S.W.3d at 741. As such, we cannot say that the trial court abused its
discretion in denying appellant’s motion to suppress. See Crain, 315 S.W.3d at 48; see
also Guzman, 955 S.W.2d at 88-89. Accordingly, we overrule appellant’s first issue.
Bukowski v. State Page 11
II. THE JURY CHARGE
In his second issue, appellant complains that the jury charge wrongfully allowed
a non-unanimous verdict because it did not require the jury to agree on the underlying
offense—robbery or burglary—during which the murder occurred.
A. Standard of Review
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error if found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain reversal for jury-charge error, appellant must have suffered actual harm
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986). To determine
whether a defendant suffered harm, we consider: “(1) the charge itself; (2) the state of
the evidence[,] including contested issues and the weight of the probative evidence; (2)
arguments of counsel; and (4) any other relevant information revealed by the record of
the trial as a whole.” Jordan v. State, 1 S.W.3d 153, 157 (Tex. App.—Waco 1999, pet.
ref’d) (quoting Hutch, 922 S.W.2d at 171).
B. Jury Unanimity
Bukowski v. State Page 12
The Texas Constitution requires a unanimous verdict in felony criminal cases.
TEX. CONST. art. V, § 13; see TEX. CODE CRIM. PROC. ANN. art. 36.29(a) (West Supp. 2013).
A unanimous verdict is more than a mere agreement on a violation of a statute; it
ensures that the jury agrees on the factual elements underlying an offense. Francis v.
State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (op. on reh’g) (en banc). Generally,
instructing a jury on alternative theories of committing the same offense does not
violate the unanimity requirement. Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim.
App. 2004); see Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006) (“Thus,
while jury unanimity is required on the essential elements of the offense, when the
statute in question establishes different modes or means by which the offense may be
committed, unanimity is generally not required on the alternate modes or means of
commission.” (internal citations and quotations omitted)). If a defendant is charged
with multiple offenses, however, the trial court must instruct the jury that it cannot
return a guilty verdict unless it unanimously agrees upon which offense the defendant
committed. Soto v. State, 267 S.W.3d 327, 335 (Tex. App.—Corpus Christi 2008, no pet.)
(citing Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005) (en banc)).
C. Discussion
At trial, appellant objected to sections six and seven of the jury charge on the
grounds that neither required unanimity as to which underlying offense of capital
murder was committed—robbery or burglary. In Gardner v. State, the Texas Court of
Criminal Appeals stated the following:
Bukowski v. State Page 13
We have consistently followed the Kitchens analysis in the context of
capital murder jury charges: the gravamen of capital murder is
intentionally (or knowingly) causing a death, plus any one of various
different types of aggravating elements, and we most recently concluded
that our holding in Kitchens applies equally to all alternate theories of
capital murder contained within [Penal Code] § 19.03, whether they are
found in the same or different subsections, so long as the same victim is
alleged for the predicate murder. Kitchens remains good law. The jury
charge properly set out the underlying felonies of burglary and retaliation
in the disjunctive, and the jury did not need to be unanimous concerning
which felony appellant was in the course of committing.
306 S.W.3d 274, 302 (Tex. Crim. App. 2009) (internal citations and quotations omitted);
see Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). In Kitchens, the Court
noted that:
And although the indictment may allege the differing methods of
committing the offense in the conjunctive, it is proper for the jury to be
charged in the disjunctive. It is appropriate where the alternate theories of
committing the same offense are submitted to the jury in the disjunctive
for the jury to return a general verdict if the evidence is sufficient to
support a finding under any of the theories submitted. Indeed, the
Supreme Court has determined that there is no general requirement that
the jury reach agreement on the preliminary factual issues which underlie
the verdict.
823 S.W.2d at 258 (internal citations and quotations omitted); see Russeau v. State, 171
S.W.3d 871, 877 (Tex. Crim. App. 2005) (“[T]he evidence in a capital murder prosecution
need be sufficient to establish only one of the underlying felonies alleged in the
indictment.”).
Here, appellant was charged with capital murder under section 19.03(a)(2),
which provides that a person “commits an offense if the person commits
murder . . . and . . . the person intentionally commits the murder in the course of
committing or attempting to commit . . . burglary, robbery . . . .” TEX. PENAL CODE ANN.
Bukowski v. State Page 14
§ 19.03(a)(2). Moreover, in this case, the indictment alleged both burglary of a
habitation and robbery in the conjunctive as underlying felonies for capital murder. In
addition, the jury charge alleged the same victim for the predicate murder, Warren, and
allowed the jury to convict appellant of capital murder if they found beyond a
reasonable doubt that he caused the death of Warren while in the course of committing
or attempting to commit robbery or burglary of a habitation. In other words, the jury
was charged in the disjunctive with respect to the purported burglary of a habitation
and robbery felonies underlying the capital-murder offense. Under the law articulated
in Gardner and Kitchens, this is proper. See Gardner, 306 S.W.3d at 302; see also Kitchens,
823 S.W.2d at 258. The jury was not required to be unanimous on which of the two
underlying felonies appellant was in the course of committing or attempting to commit
when he caused the death of Warren.2 See Gardner, 306 S.W.3d at 302; see also Kitchens,
823 S.W.2d at 258. As such, we cannot say that the jury charge was erroneous. See
Gardner, 306 S.W.3d at 302; Kitchens, 823 S.W.2d at 258; see also Hutch, 922 S.W.2d at 170.
We therefore overrule appellant’s second issue.
2 In any event, in his brief, appellant relies heavily on the Texas Court of Criminal Appeals’
decision in Ngo v. State to support his contention that the charge in this case was erroneous because it did
not require unanimity with regard to the underlying felonies alleged. See 175 S.W.3d 738, 745, 755 (Tex.
Crim. App. 2005) (en banc). This case is distinguishable from Ngo. In Ngo, the State sought one
conviction for credit-card abuse with evidence that at different times the defendant committed three
different acts that the applicable statute defined as separate criminal offenses and not as means of
committing a single criminal offense. See Ngo, 175 S.W.3d 738, 743. However, in this case, the State
sought one conviction for capital murder, alleging two different acts—burglary of a habitation and
robbery—that section 19.03 of the Texas Penal Code defines as means for committing a single criminal
offense and not as two separate criminal offenses. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West Supp.
2013).
Bukowski v. State Page 15
III. APPELLANT’S STATEMENT TO POLICE
In his third issue, appellant asserts that the trial court abused its discretion by
failing to suppress his September 21, 2011 written statement, wherein appellant
confessed to being present and taking part in the incident. Specifically, appellant
argues that his written statement was not voluntary and should have been suppressed.
A. Applicable Law
It is the State’s burden to establish a valid waiver of Miranda rights by a
preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011)
(citing Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010)). “There are two facets to
any inquiry with respect to the adequacy of a purported waiver of Miranda rights . . . .”
Id.
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.” 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 v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001) (quoting Colorado v. Spring,
479 U.S. 564, 573, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954 (1987) (footnotes omitted)).
“Before it may be said that a waiver of a Miranda right is involuntary, however, there
must be some element of official intimidation, coercion, or deception.” Leza, 351 S.W.3d
at 349 (citing Colorado v. Connelly, 479 U.S. 157, 169-70, 107 S. Ct. 515, 523, 93 L. Ed. 2d
473 (1986); Oursbourn v. State, 259 S.W.3d 159, 170 (Tex. Crim. App. 2008)). Moreover,
regarding the requirement that the waiver must also be knowing and intelligent, the
United States Supreme Court has noted:
Bukowski v. State Page 16
Once it is determined that a suspect[ ] . . . at all times knew he could stand
mute . . ., and that he was aware of the State’s intention to use his
statements to secure a conviction, the analysis is complete and the waiver
is valid as a matter of law.
Moran v. Burbine, 475 U.S. 412, 422-23, 106 S. Ct. 1135, 1141, 89 L .Ed. 2d 410 (1986). A
waiver is knowingly and intelligently made if the accused has been made aware and
fully comprehends that he has the right to remain silent in the face of police
interrogation and to discontinue the dialogue at any time, and that the consequence of
his waiver is that his words may be used against him later in a court of law. Leza, 351
S.W.3d at 350.
Article 38.22 of the Texas Code of Criminal Procedure provides that, when a
written statement is obtained as a result of custodial interrogation, the statement must
show on its face that: (1) the accused received the required warning; and (2) prior to
and during the making of the statement, the accused knowingly, intelligently, and
voluntarily waived his rights. TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)-(b) (West
Supp. 2013). If these requirements are not met, then the statement is inadmissible. See
id.
“Article 38.22 requires merely that the accused receive the statutory warnings
before giving a statement.” Brooks v. State, 991 S.W.2d 39, 41 (Tex. App.—Fort Worth
1998, pet. ref’d) (citing TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2(a)). “‘Because a
written statement is not obtained (because it is not admissible) until it is signed, giving
the required warnings before the accused signs the statement meets the statutory
requirements.’” Id. (quoting Dowthitt v. State, 931 S.W.2d 244, 258 (Tex. Crim. App.
Bukowski v. State Page 17
1996)). In Garcia v. State, the Texas Court of Criminal Appeals stated that an accused
receives the warnings where they are located at the top of the page above his statement.
919 S.W.2d 370, 386 (Tex. Crim. App. 1996) (op. on reh’g); see Brooks, 991 S.W.2d at 41.
“[T]he appearance of [appellant’s] initials . . . is evidence that he received them.” Garcia,
919 S.W.2d at 386. Moreover, “the presence of a valid waiver of the rights contained in
section 2(a) can be ascertained from considering the totality of an accused’s statement,
and the waiver (required by section 2(b)) is sufficient if it substantially complies with
section 2(b).” Gutierrez v. State, 945 S.W.2d 287, 289 (Tex. App.—San Antonio 1997, no
pet.) (citing Garcia, 919 S.W.2d at 387). A waiver can be inferred from the language
contained in the written statement itself. See, e.g., Smith v. State, AP-75,793, 2010 Tex.
Crim. App. Unpub. LEXIS 582, at *13 (Tex. Crim. App. Sept. 29, 2010) (per curiam)
(citing Garcia, 919 S.W.2d at 385-86).
B. Discussion
In this issue, appellant specifically complains about State’s exhibit 1, which is the
written, voluntary statement appellant gave to Johnson County Sheriff’s Office
Detective Leona Yocham. Specifically, appellant contends that the statement was not
voluntary because Detective Yocham only included appellant’s identifying information
on the first page of the seven-page document. Appellant argues that this oversight and
the fact that the video of appellant’s interrogation by police is missing suggests that his
statement was neither voluntary nor knowing. We disagree.
A review of the seven-page statement shows that appellant provided information
about the incident to Yocham, who documented appellant’s statements on a form
Bukowski v. State Page 18
generated by the Johnson County Sheriff’s Office. At the top of the first page of the
document, Yocham included the date and time of the statement and appellant’s
identifying information. Yocham did not include this information on the other six
pages contained in the statement.
Nevertheless, on each page of the seven-page statement, the following warnings
were provided:
FIRST[:] THAT I HAVE THE RIGHT TO REMAIN SILENT AND
NOT MAKE ANY STATEMENT AT ALL AND THAT ANY STATEMENT
I MAKE MAY BE USED AGAINST ME AT MY TRIAL[.]
SECOND[:] THAT ANY STATEMENT I MAKE MAY BE USED AS
EVIDENCE AGAINST ME AT COURT.
THIRD[:] THAT I HAVE THE RIGHT TO HAVE A LAWYER
PRESENT TO ADVISE ME PRIOR TO AND DURING ANY
QUESTIONING[.]
FOURTH[:] THAT 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[.]
FIFTH[:] THAT I HAVE THE RIGHT TO TERMINATE THE
INTERVIEW AT ANY TIME[.]
PRIOR TO AND DURING THE MAKING OF THIS STATEMENT, I
HAVE AND DO KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY WAIVE THE ABOVE EXPLAINED RIGHTS AND I DO
MAKE THE FOLLOWING VOLUNTARY STATEMENT TO THE
AFOREMENTIONED PERSON OF MY OWN FREE WILL AND
WITHOUT ANY PROMISES OR OFFERS OF LENIENCY OR FAVORS,
AND WITHOUT COMPULSION OR PERSUASION BY ANY PERSON
OR PERSONS WHOMSOEVER . . . .
(Emphasis in original). On all of the seven pages of the statement, appellant initialed
the above-mentioned warnings, indicating that he waived his Miranda rights and that
Bukowski v. State Page 19
his statement was voluntary. Furthermore, each page of the statement also included the
following language after which appellant signed as “SIGNATURE OF PERSON
MAKING VOLUNTARY STATEMENT”: “I HAVE READ THIS STATEMENT
CONSISTING OF 7 PAGE(S), EACH PAGE OF WHICH BEARS MY SIGNATURE AND
I DO AFFIRM THAT ALL FACTS AND STATEMENTS CONTAINED HERIN ARE
TRUE AND CORRECT.” (Emphasis in original). This language indicates that the
written statement appellant gave to police comprised seven pages, and appellant’s
identity on each of the pages is clear from the context of the document. Additionally,
appellant’s signature at the bottom of each page as the “SIGNATURE OF PERSON
MAKING VOLUNTARY STATEMENT” combined with his initials regarding the
Miranda warnings at the top of each page sufficiently conveys by a preponderance of
the evidence that appellant understood his constitutional rights and that he knowingly,
intelligently, and voluntarily waived those rights. See TEX. CODE CRIM. PROC. ANN. art.
38.22, § 2(a)-(b); see also Leza, 351 S.W.3d at 349-50. Moreover, appellant does not direct
us to evidence in the record demonstrating official intimidation, coercion, or deception.
See Leza, 351 S.W.3d at 349; see also Oursbourn, 259 S.W.3d at 170.
Accordingly, a review of the totality of appellant’s written statement
demonstrates that the requirements of article 38.22, section 2(b) were met. See TEX.
CODE CRIM. PROC. ANN. art. 38.22, § 2(b); Garcia, 919 S.W.2d at 386-87; Gutierrez, 945
S.W.2d at 289; see also Smith, 2010 Tex. Crim. App. Unpub. LEXIS 582, at *13. As such,
we cannot say that the trial court abused its discretion by denying appellant’s motion to
Bukowski v. State Page 20
suppress State’s exhibit 1. See Crain, 315 S.W.3d at 48; see also Guzman, 955 S.W.2d at 88-
89. We overrule appellant’s third issue.
IV. HEARSAY
In his fourth issue, appellant asserts that the trial court abused its discretion in
overruling his hearsay objection to testimony provided by Texas Ranger Michael Don
Stoner. In particular, appellant argues Ranger Stoner’s testimony that Adams told him
that appellant may have wanted to hurt her brother should have been excluded on
hearsay grounds.
A. Standard of Review
We review the trial court’s decision to admit or exclude evidence for an abuse of
discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); McDonald v.
State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). “Under an abuse of discretion
standard, an appellate court should not disturb the trial court’s decision if the ruling
was within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367
(Tex. Crim. App. 2008).
B. Applicable Law
With the exception of privileges, the Texas Rules of Evidence do not apply to
suppression hearings because they involve only the determination of preliminary
questions. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.—Texarkana 2010, pet. ref’d)
(citing Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002)). In Granados,
appellant complained that, at the suppression hearing, the trial court erred in admitting
into evidence a police officer’s testimony of what another officer told him about what
Bukowski v. State Page 21
the victim’s family said about the victim’s whereabouts. Id. at 226-27. Appellant
claimed that testimony constituted inadmissible hearsay. Id. at 227. The Granados Court
concluded that the officer’s testimony where “he testified as to the facts that
he . . . believed constituted probable cause,” was not hearsay and, thus, admissible. Id.
at 230. Moreover, the Granados Court noted that the testimony would have been
admissible, even if it had been hearsay, because courts are permitted to rely on hearsay
and other inadmissible evidence in suppression hearings even though it would not
otherwise be admissible at trial. Id. at 227 n.29 (citing United States v. Raddatz, 447 U.S.
667, 679, 100 S. Ct. 2406, 2414, 65 L. Ed. 2d 424 (1980) (“At a suppression hearing, the
court may rely on hearsay and other evidence, even though that evidence would not be
admissible at trial.”)).
Here, appellant complains about Ranger Stoner’s testimony during a
suppression hearing. Even if Ranger Stoner’s testimony constituted hearsay, because
the Texas Rules of Evidence do not apply to suppression hearings, we cannot say that
the trial court abused its discretion in admitting the testimony.3 See Raddatz, 447 U.S. at
679, 100 S. Ct. at 2414; Granados, 85 S.W.3d at 227; Graves, 307 S.W.3d at 489; see also De
La Paz, 279 S.W.3d at 343; McDonald, 179 S.W.3d at 576. As such, we overrule
appellant’s fourth issue.
V. CONCLUSION
3 We also question whether the complained-of testimony is really hearsay given that the content
of Ranger Stoner’s testimony about what Adams told him described how appellant became a suspect in
this case. See Lee v. State, 29 S.W.3d 570, 577 (Tex. App.—Dallas 2000, no pet.) (“Police officers may testify
to explain how the investigation began and how the defendant became a suspect.”); see also Zamora v.
State, No. 13-10-00146-CR, 2010 Tex. App. LEXIS 10246, at *22 (Tex. App.—Corpus Christi Dec. 30, 2010,
no pet.) (mem. op., not designated for publication) (same).
Bukowski v. State Page 22
Having overruled all of appellant’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 9, 2014
Do not publish
[CRPM]
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