THE STATE OF TEXAS v. CONWAY T. LINNEY--Appeal from 36th District Court of Aransas County

NUMBER 13-01-543-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

THE STATE OF TEXAS, Appellant,

v.

CONWAY T. LINNEY, Appellee.

On appeal from the 36th District Court

of Aransas County, Texas.

O P I N I O N

Before Justices Hinojosa, Ya ez, and Castillo

Opinion by Justice Castillo

Appellant, the State of Texas, appeals from an order granting a motion to suppress a written confession signed by the appellee, Conway T. Linney. In a single issue presented, the State argues that the trial court erred in suppressing the statement. We reverse.

Facts

Linney was arrested on September 19, 2000, for the offense of aggravated sexual assault. See Tex. Pen. Code Ann. ' 22.021 (Vernon Supp. 2002). He was held in Aransas County Jail. The next day, while in custody, Linney was interrogated by Aransas County Deputy Sid Moore. Deputy Moore advised Linney of his rights prior to the interrogation.[1] Deputy Moore further advised Linney that he had the right to not answer questions and to terminate the interrogation at any time. Linney signed a written document waiving his right to silence. Linney proceeded to dictate a written statement, with another sheriff present to type the statement into a computer and print it out. After Linney finished dictating the statement but before he signed it, Deputy Moore told him that if he (Linney) was telling a lie, a lot of people, including Linney=s family, could be hurt. Deputy Moore further stated that, if Linney told the truth, his (Linney=s) statements would help him. Linney then signed the written statement confessing to the crime charged.

On July 13, 2001, Linney filed a motion to suppress the statement he gave while in police custody, claiming that the statement was given under duress and was involuntary. A hearing was held on July 24, 2001 regarding the motion to dismiss, and the trial court judge orally granted the motion at the hearing. The State then requested findings of fact and conclusions of law, and the trial court proceeded to issue those requested findings and conclusions orally. On August 24, 2001, the trial court issued written findings of fact and conclusions of law. The State timely filed its notice of appeal.

Standard of Review

We review the trial court=s grant of a motion to suppress under the standards set forth in Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Under Guzman, the relevant standard of review depends on the type of question presented. Id. We must afford almost total deference to the trial court=s determination of the historical facts that are supported by the record, especially where the determination is based on an evaluation of credibility and demeanor. Id. We also afford almost total deference to the trial court=s application of the law to the facts, where the application turns on an evaluation of credibility and demeanor. Id. Where the application of the law to the facts does not revolve around an evaluation of credibility and demeanor, we review the issue de novo. Id. However, in such a case we still afford deference to the trial court=s determination of the subsidiary fact questions. Id.

At a hearing on a motion to suppress a confession, the trial court is the sole judge of the credibility of the witnesses, and the weight to be given to their testimony. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000). The trial court is free to believe or disbelieve any or all parts of a witness=s testimony. Dewberry v. State, 4 S.W.3d 735, 747 (Tex. Crim. App. 1999).

Issue Presented

The State argues in its issue presented that the comment made by Deputy Moore did not render Linney=s confession involuntary and thus inadmissable, and therefore suppression was in violation of Texas Code of Criminal Procedure article 38.22. We agree.

Article 38.22 of the Texas Code of Criminal Procedure requires that, prior to interrogation by law enforcement, statutory warnings must be given. Tex. Code Crim. Proc. Ann. art. 38.22(a) (Vernon 1979). These warnings must include very specific language, including the statement that Aanything you say can be used against you in a court of law.@ Id. The failure to include these specific statutorily-required warnings renders any written admonition or confession obtained during that interrogation inadmissible per se. Id. In the present case, there is no dispute that Deputy Moore issued the mandated warnings to Linney prior to the interrogation.

Where the challenge to the admissibility of a confession is not based upon the failure of the questioner to issue the proper pre-interrogation warnings, but rather is based upon remarks made by the questioner during the course of the interrogation, the per se rule of inadmissability does not apply to confessions subsequently obtained. Creagerv. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997). Where the proper pre-interrogation warnings have been given, the statutory requirements stated in 38.22 have been satisfied. Id. The issue in such a case is therefore not what specific words have been used, but rather the impact of the questioner=s remarks in convincing the criminal defendant that confessing would help him. Id. We look at such remarks in order to determine whether they had the effect of rendering the confession involuntary. Id. The totality of the circumstances must be viewed in order to determine the voluntariness of the confession. Id.

The trial court=s findings of fact included the following statements:

Deputy Moore testified unequivocally that he told the defendant that telling the truth in his statement would help him.

Deputy Moore=s unequivocal representation to the Defendant that a truthful statement would help him was made before the interview was concluded, before the statement was typed and before the Defendant signed it.

The trial court=s conclusions of law included the following:

The undisputed statement by the State=s interrogator

that Athe defendant=s telling the truth would help@

rendered the statement involuntary and inadmissable.

It is a non sequitur to tell a defendant Aany statement I make can and will be used against me@ and Atelling the truth about your actions will help you.@

Texas Code of Criminal Procedure 38.22 requires a defendant to be warned a statement can and will be used against him.

Texas Code of Criminal Procedure 38.22 requires a defendant not be induced to speak on the representation his statement will help.

Nevarez v. State 847.SW2d637 [sic] and Dinkin [sic] v. State 894.SW2d330 [sic] disallow law enforcement personell [sic] from suggesting a statement of a defendant will help his case. Note: Facts in Dinkins are distinguishable from this cause as in that case a question was raised regarding what the interrogating officer told the defendant. In this case no such controversy exists. The officer admitted making the comment and stated he actually believes it to be a correct way to warn people because AI just think the truth always helps.@

The trial court=s determination was clearly based on the misapplication of Nevarez and Dinkins to this case. Both of those cases involved situations in which the interrogator gave improper pre-interrogation warnings to the criminal defendant, thus invoking the per se rule of invalidity of the confessions under article 38.22. See Dinkins v. State, 894 S.W.2d 330, 348-50 (Tex. Crim. App. 1995); Nevarezv. State, 847 S.W.2d 637, 646-47 (Tex. App.CEl Paso 1993, pet. ref=d). The trial court therefore applied the wrong standard in determining whether to admit the confession. Giving proper deference to the trial court=s findings of historical facts, and as the issue here does not turn on the credibility or demeanor of the witness, we thus review the trial court=s determination regarding the validity of the confession de novo. Guzman, 955 S.W.2d at 89. In doing so, we must look at the totality of the circumstances to determine the voluntariness of the confession as required by Creager. Creager, 952 S.W.2d at 856. The trial court made no finding of fact as to the voluntariness of Linney=s confession. Indeed, no evidence was adduced regarding the effect of Moore=s words on Linney=s willingness to give his statement. Deputy Moore testified that he told Linney that Athe truth would help him@ only after Linney had already given the statement, and Linney did not alter the statement he had made after Moore=s declaration. Without any evidence in the record that Linney would not have signed the statement absent Deputy Moore=s remark, we cannot say that the confession was involuntary due to Moore=s remark. Given the meager evidence before us on the issue of the voluntariness of Linney=s statement, the totality of the circumstances reflects that his confession was not obtained involuntarily.

We reverse the order suppressing Linney=s written confession and remand to the trial court for further proceedings consistent with this opinion.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 23rd day of May, 2002.

[1] Specifically, Deputy Moore informed Linney that he had the right to remain silent and not make any statement, that any statement he made could and would be used against him in court, that he had the right to have an attorney present to advise him prior to and during any questioning, that he had the right to have an attorney appointed to him if he could not afford to hire one. See Tex. Code Crim. Proc. Ann. art. 38.22(2)(a) (Vernon 1979).