Guerrero, Victor Alfonso v. The State of Texas--Appeal from 180th District Court of Harris County

Affirmed and Memorandum Opinion filed November 8, 2005

Affirmedand Memorandum Opinion filed November 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00212-CR

NO. 14-04-00213-CR

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VICTOR ALFONSO GUERRERO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th Criminal District Court

Harris County, Texas

Trial Court Cause Nos. 928,445 & 930,908

M E M O R A N D U M O P I N I O N

Appellant, Victor Alfonso Guerroro, appeals his jury conviction of two separate counts of aggravated assault with a deadly weapon. A jury sentenced appellant to twenty years= confinement for each count. In his sole point of error, appellant argues the trial court erred in overruling his motion to suppress written statements admitted during the punishment phase of trial. We affirm.

Appellant filed a motion to suppress three written statements made to Houston police officers contending they were inadmissible because he did not knowingly, intelligently, and voluntarily waive his Miranda rights.[1] Specifically, appellant argues he was unable to waive these rights with full awareness of the nature and consequences of the waiver because he cannot read and write English, and he could not determine for himself the content of his statements before signing.

Houston police officers approached appellant while he was held on these charges at the Harris County Jail, intending to speak with him about three unsolved crimes. The officers read appellant his Miranda rights, determined he understood those rights, and obtained permission to speak with him about three unsolved cases. Unable to take a written statement at that time, two officers returned the next day. Appellant was again read his Miranda rights. Appellant indicated he understood these rights and agreed to talk with the officers. He then made three separate statements about crimes for which no charges were pending. One officer typed a summary of each of appellant=s statements. Appellant spoke with the officers in English and had no difficulty understanding their questions or communicating with them.[2] He told the officers that he could not read and write English very well. The interviewing officer, therefore, included the following at the end of each statement, before the signature line:

I have completed 9 years of school[[3]] and can not read and write the English language. My statement was read to me by Officer Young and it is true and correct to the best of my knowledge. I have given this statement to Officer D. E. Young of my own free will.

In total, appellant was admonished of his rights seven times that dayCat the outset of the interview, before each statement was typed by the interviewing officer, and again when appellant signed each statement before a notary.[4] As noted above, the rights read to and initialed by appellant on each statement are those set out in Article 38.22 of the Texas Code of Criminal Procedure. Each statement was read to appellant before he initialed corrections and signed them.[5] At no time did appellant invoke his rights or indicate he would be more comfortable speaking in Spanish. During his interview, which lasted from approximately 12:30 p.m. until 3:00 p.m., appellant never indicated he did not understand what was being said. Following a hearing on appellant=s motion to suppress these statements, the trial court found appellant received and understood his rights and that he freely and voluntarily waived his rights. Relying upon testimony from officers present at the interview, a tape recording and transcript of appellant speaking in English with a homicide investigator and magistrate judge, and competency and sanity examinations describing appellant as bilingual, the court found there was no communication problem between appellant and the officers. The court then ruled that each statement was freely and voluntarily given as a matter of law and fact, and subsequently allowed the statements into evidence at the punishment phase of trial.

Appellant contends his statements were not knowingly, intelligently, and voluntarily given because he cannot read and write English, and, therefore, the trial court erred in allowing his statements into evidence at the punishment phase of trial.[6] Appellant argues his illiteracy rendered him unable to fully understand the nature and consequences of his waiver, or to allow him to determine for himself the content of his statements before signing.

We review a trial court=s ruling on a motion to suppress evidence for an abuse of discretion. State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). When reviewing the trial court=s ruling on a motion to suppress evidence, we will not engage in our own factual review; rather, we determine whether the trial court=s findings are supported by the record. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.1990); Caddell v. State, 123 S.W.3d 722, 725 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d). If the trial court=s findings are supported by the record, we are not at liberty to disturb them. Hill v. State, 902 S.W.2d 57, 59 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d); Green v. State, 892 S.W.2d 220, 221B22 (Tex. App.CTexarkana 1995, pet. ref=d). At a suppression hearing, the trial court is the exclusive trier of fact and judge of witness credibility and the weight to be given to testimony. Ballard, 987 S.W.2d at 891; Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). Therefore, when an evaluation of witness credibility and demeanor is involved in determining historical facts or mixed questions of law and fact, we give almost total deference to the trial court=s findings and rulings. Guzman v. State, 955 S.W.2d 85, 88B89 (Tex. Crim. App. 1997); Mason v. State, 116 S.W.3d 248, 256 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d).[7] In determining whether the trial court=s ruling on a motion to suppress is supported by the record, we consider only the evidence adduced at the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996).

The statement of an accused may be used in evidence if it was freely and voluntarily made, without compulsion or persuasion. Tex. Code Crim. Proc. Ann. Art. 38.21 (Vernon 2005). No statement is admissible if, before making the statement, an accused did not receive or knowingly, intelligently, and voluntarily waive his statutory rights. See id. at Art. 38.22 ' 2. Although Article 38.22 requires an accused receive warnings additional to those set out by Miranda, the waiver of Article 38.22 warnings is analyzed in the same way as the waiver of Miranda rights. Franks v. State, 90 S.W.3d 771, 784B85 (Tex. App.CFort Worth 2002, no pet.). Waiver must be the product of a free and deliberate choice rather than intimidation, coercion or deception; it must also be made with full awareness of the nature of the rights abandoned and the consequences of the decision to abandon them. Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001); Franks, 90 S.W.3d at 785. In determining voluntariness, we look to the totality of circumstances surrounding a statement=s acquisition. Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995); Griffin v. State, 765 S.W.2d 422, 429 (Tex. Crim. App. 1989).

Appellant does not argueCnor does the record contain any evidenceCthat his statements were obtained by threats or coercion. The record does not contain any evidence that the written statement appellant signed was in any way inconsistent with what was read and represented to him to be the contents of the statement he was signing. He contends instead that because he could not read the rights he signed he was not fully aware of the nature of those rights or of the consequences of his waiver. Although appellant attended only special education classes while in school, he has never asserted that he suffers from any mental impairment severe enough to render him incapable of understanding the meaning and effect of the statements as read to him. Here, the trial court found appellant was read his rights on several occasions, and he fully understood those rights as they were explained to him. These findings are amply supported by the record.

Appellant also argues he was unable to determine the content of his statements for himself before signing. However, the Court of Criminal Appeals has repeatedly held that written confessions given by defendants who are unable to read may, nevertheless, be voluntary. See Penry, 903 S.W.2d at 746 (holding appellant voluntarily waived statutory rights and evidence of illiteracy doe not, alone, make confession inadmissible); Pete v. State, 501 S.W.2d 683, 686 (Tex. Crim. App. 1973) (finding confession admissible despite appellant=s illiteracy when record showed officers read confession to defendant before he signed it); see Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970) (stating Texas Code of Criminal Procedure Article 38.22 does not require literacy before a statement may be admissible); Martinez v. State, 131 S.W.3d 22, 35 (Tex. App.CSan Antonio 2003, no pet.) (explaining A[t]he mere fact that appellant is uneducated and illiterate does not mean that he does not understand the nature of the rights he is waiving and cannot voluntarily give a confession@ (quoting Peacock v. State, 819 S.W.2d 233, 235 (Tex. App.CAustin 1991, no pet.)). A person=s inability to read the statement prepared by law enforcement is only one amongst a totality of circumstances to be considered when determining whether it was voluntarily made. Here, the trial court found the police officers read each of appellant=s statements aloud before he signed. Therefore, appellant=s contention that his illiteracy affected his knowledge of the statements= contents lends no support to his argument that his statements were not knowingly, intelligently, and voluntarily given. We defer to the trial court=s decision in this matter, which is supported by the record.

The record supports the trial court=s ruling that appellant=s statements were made in accordance with Texas Code of Criminal Procedure Article 38.22. We find no abuse of discretion in denying appellant=s motion to suppress his written statements. Accordingly, we affirm the trial court=s ruling.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed November 8, 2005.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] We refer to the rights read to and waived by appellant as his AMiranda@ rights, even though he was advised of his rights under a Texas statute which requires warnings additional to those set out by the United States Supreme Court in Miranda. See Tex. Code Crim. Proc. Ann. Art. 38.22 (Vernon 2005); Miranda v. Arizona, 384 U.S. 436, 444B45 (1966).

[2] Although appellant used an interpreter at trial, the record is replete with evidence appellant is fluent in English, and appellant does not argue on appeal that he cannot speak or understand English.

[3] Appellant dropped out of school in the ninth grade without completing it. While in school, he attended only special education classes.

[4] The bulk of the interview was conducted by two Houston police officers. After the statements were printed, however, a third officer (who was a notary) was present as the statements were read to appellant and he signed the same.

[5] Appellant made written corrections of typographical errors on two of the statements. He made one correction when an officer read his statement aloud (changing Acase@ to Acasa,@ the Spanish word for house). The other change was made only after the officer discovered the mistake, pointed it out to appellant, and asked if he wanted to make a correction (changing Aby@ to Abuy@).

[6] In his motion to suppress, appellant also argues the statements were coerced and enticed from him and that he was deprived of his right to counsel without making a knowing waiver of that right. As these issues are not raised in appellant=s brief, we do not address them here.

[7] Appellant suggests this Court may apply de novo review where issues involve the application of law upon facts not turning on credibility and demeanor. See Guzman, 955 S.W.2d at 87B89 (holding that after affording deference to the trial court=s determination of historical facts, the appellate court conducts a de novo review of legal issues). The trial court, however, did not rule based solely upon a transcript or other historical facts. The motion to suppress hearing included live testimony from officers present at appellant=s interview as well as testimony from appellant about his understanding of what he signed. The trial court was in a better position than we are to judge the credibility of these witnesses. See id., at 87 (explaining when it is important to evaluate witness demeanor there are compelling reasons to allow trial courts to apply the law to the facts). Accordingly, we apply a deferential standard of review.