Robert Len White v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00302-CR
Robert Len WHITE,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR10291
Honorable Melisa Skinner, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Irene Rios, Justice
Delivered and Filed: July 25, 2018
AFFIRMED
Robert White appeals his conviction for the offense of aggravated sexual assault of a child.
White contends the trial court erred by denying his pre-trial motion to suppress. We affirm.
BACKGROUND
On May 20, 2015, the complainant made an outcry against White, and authorities initiated
an investigation. On July 23, 2015, Detective William Scogins arrested White during a meeting
with his parole officer pursuant to a warrant. Thereafter, Detective Scogins interviewed White at
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the police department. The interview was recorded using both audio and visual recording
equipment.
Before beginning the interview, Detective Scogins advised White of his rights individually
using a standard form. After being advised of each right, White initialed the form to indicate he
understood. The form listed each right as follows:
I UNDERSTAND that I have the right to a lawyer present to advise me either prior
to or during any questioning.
I UNDERSTAND that if I’m unable to employ a lawyer, I have the right to have a
lawyer appointed to counsel with me prior to or during any questioning.
I UNDERSTAND that I have the right to remain silent and not make any statement
at all; and further, any statement that I do make will be used as evidence against me
at my trial.
I UNDERSTAND that if I decide to talk with anyone, I can; however I also
understand that I can stop talking to them at any point in time.
White initialed a line below each right, and Detective Scogins read the bottom of the waiver form,
which stated:
I UNDERSTAND that the above rights are continuing rights, which can be urged
by me at any stage of these proceedings, and I do hereby intelligently, knowingly,
and voluntarily waive these rights by providing Det[ective] William M. Scogins,
the person to whom this statement is being made, the following statement[.]
White and Detective Scogins both signed the form. Detective Scogins then began questioning
White. During the interview, White admitted to sexually assaulting the complainant.
White’s trial counsel filed a Motion to Suppress Evidence and Oral Statements of
Defendant as a result of the Warrantless and Illegal Detention, Arrest, Search and Seizure of the
Defendant and His or Her Property and a brief in support of the motion. During a pre-trial hearing,
the trial court heard argument regarding White’s motion to suppress. White argued that the
confession given to Detective Scogins was not the product of a voluntary waiver of his rights. The
trial court denied White’s motion to suppress his recorded confession, finding that White
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voluntarily waived his rights by initialing each individual right and signing underneath the
statement that he understood and waived those rights. The trial court further stated that the police
officer and the court are not required to speculate as to the defendant’s state of mind if the
defendant continues to speak to the officer.
White subsequently pleaded nolo contendere to the offense of aggravated sexual assault of
a child pursuant to a plea bargain. The trial court assessed punishment at twenty-three years’
imprisonment in accordance with the plea bargain agreement. This appeal followed.
ANALYSIS
In a single issue separated into three subparts, 1 White contends that the recording device
that captured his confession was not a device capable of making an accurate recording, his
confession was improperly induced, and he did not knowingly, intelligently, and voluntarily waive
his Miranda rights before confessing.
STANDARD OF REVIEW
We review a trial court’s denial of a motion to suppress under a bifurcated standard of
review. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). 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). The trial court is the sole trier of fact and judge of the credibility of
the witnesses and the weight to be given to their testimony. Turrubiate, 399 S.W.3d at 150. 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. Johnson v. State, 414 S.W.3d 184, 192 (Tex. Crim. App. 2014). However, we review
de novo mixed questions of law and fact that do not depend upon credibility and demeanor.
1
For purposes of clarity, we identify the subparts of White’s Issue One as A, B, and C.
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Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). Accordingly, the question of
whether a certain set of historical facts gives rise to reasonable suspicion is one which we review
de novo. Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013).
When reviewing the trial court’s ruling on a motion to suppress, we view the evidence in
the light most favorable to the trial court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim.
App. 2007). When the trial court makes explicit fact findings, we determine whether the evidence,
when viewed in the light most favorable to the trial court’s ruling, supports those fact findings.
State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006). 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 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).
PRESERVATION
To preserve a complaint for appellate review, the complaining party must make a timely
request, objection, or motion to the trial court which states the grounds with sufficient specificity
to make the trial court aware of the complaint, unless the specific grounds are apparent from the
context. See TEX. R. APP. P. 33.1(a)(1) (West Supp. 2017). The complaining party must let the trial
court know what he wants and why he thinks he is entitled to it, and he must do so clearly enough
for the trial court to understand and at a time when the trial court is in a position to do something
about it. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). Additionally, to
preserve error, the complaint on appeal must comport with, or in other words must not differ from,
the complaint made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
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In Subpart A, White contends the device that recorded his confession did not comply with
the requirements of the Texas Code of Criminal Procedure, namely that the recording device was
not capable of making an accurate recording. See TEX. CODE CRIM. PROC. ANN. art. 38.22. (West
Supp. 2017). Our review of the record reveals that White did not argue the capabilities of the
recording device were inadequate in his motion to suppress, nor did White make any argument
regarding its capabilities during the pre-trial hearing. Although White’s motion mentions Article
38.22 in passing, a general or imprecise objection will not preserve error for appeal unless the legal
basis for the objection is obvious to the court and to opposing counsel. Buchanan v. State, 207
S.W.3d 772, 775 (Tex. Crim. App. 2006). We conclude the issue raised in Subpart A was not
preserved for appeal.
In Subpart B, White contends his confession was improperly induced by Detective Scogins.
White’s motion to suppress does not contain any language alleging that his confession was
improperly induced by Detective Scogins. Further, White did not offer any argument during the
pre-trial hearing regarding any improper inducement of his confession. We conclude White did
not properly preserve the issue raised in Subpart B.
Accordingly, Subpart A and Subpart B of Issue One are overruled.
WAIVER OF RIGHTS
In Subpart C, White contends the trial court erred by denying his motion to suppress
because he did not knowingly, intelligently, and voluntarily waive his rights. Specifically, White
complains he was improperly induced into making the statement because Detective Scogins
promised he could see his soon to be born son and his son’s mother.
Prior to any questioning, a defendant must be warned that he has the right to remain silent,
that any statement he makes may be used as evidence against him, that he has a right to the presence
of an attorney, either retained or appointed, and that he has the right to terminate the interview at
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any time. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2. “[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 (1) the statement was recorded and (2) prior to the statement but during the
recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily
waived those rights.” Joseph v. State, 309 S.W.3d 20, 23-24 (Tex. Crim. App. 2010); TEX. CODE
CRIM. PROC. ANN. art. 38.22 § 3. “[T]he relinquishment of the right must have been voluntary in
the sense that it was the product of a free and deliberate choice rather than intimidation, coercion,
or deception.” Joseph, 309 S.W.3d at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).
A waiver of these rights “must have been made with full awareness of both the nature of the right
being abandoned and the consequences of the decision to abandon it.” Id. (quoting Moran, 475
U.S. at 421). We therefore turn to an examination of the voluntariness of White’s waiver and
whether White made the waiver with full awareness.
Our review of the record indicates that immediately after being advised by Detective
Scogins of his rights, White willingly participated in the interview. Detective Scogins testified that
White did not request an attorney nor ask that the interview be terminated at any time during the
interview. At the beginning of the interview, Detective Scogins read aloud each warning on the
waiver form to White and requested that White initial next to each individual warning on the form
to indicate his understanding. Detective Scogins further read the statement at the bottom of the
waiver form to White verbatim. White agreed to the waiver and signed the statement.
The warnings read to White made him fully aware of the rights set forth in the Texas Code
of Criminal Procedure. Therefore, we conclude the totality of the circumstances surrounding
White’s interview shows White made his waiver with full awareness of both the rights being
abandoned and the consequences of his decision to abandon those rights. Our review of the record,
including the videotape recording of White’s interview, does not support the contention that White
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was coerced into making a statement. Thus, the totality of the circumstances surrounding White’s
interview shows White voluntarily waived his rights and that his waiver resulted from a deliberate
choice free from intimidation, coercion, or deception. Accordingly, we conclude the trial court did
not err by denying White’s motion to suppress.
Subpart C of Issue One is overruled.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Irene Rios, Justice
DO NOT PUBLISH
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