MANUEL VALDEZ v. THE STATE OF TEXAS--Appeal from 139th District Court of Hidalgo County

 NUMBER 13-04-468-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  - EDINBURG

MANUEL VALDEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 139th District Court of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Garza

Following a traffic accident involving the death of two teenage girls, appellant was tried by a jury and convicted of two counts of intoxication manslaughter[1] and two counts of intoxication assault.[2] Appellant pled not guilty to all counts. The trial court sentenced appellant to imprisonment in the Texas Department of Criminal JusticeBInstitutional Division for eighteen years for count one, eighteen years for count two, ten years for count three, and ten years for count four, all running concurrently. Prior to trial, appellant filed a motion to suppress a statement he made to Officer Barroso while being detained. After a hearing, the trial court denied the motion and ruled that appellant=s statement was admissible. By two issues, appellant asserts that the trial court erred in (1) denying his motion to suppress and (2) denying his requested jury charge instruction regarding the voluntariness of his statement. We affirm.

By his first issue, appellant argues that the trial court erred in admitting into evidence the statement he made to Officer Barroso. Appellant contends that the statement was not made voluntarily and was therefore inadmissible. After being advised of his rights, and after agreeing to waive his rights, appellant gave Officer Barroso a statement concerning the accident. Appellant now alleges that, in obtaining the statement, Barroso told appellant that making a statement could help him get a lower bond.[3] According to appellant, this influenced his decision to give a statement he otherwise would not have given.

In reviewing the trial court's ruling on a motion to suppress a statement based on a claim the statement was involuntary, we give almost total deference to the trial court's determination of historical facts, especially when the trial court's findings are based on an evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1977) (en banc); Villarreal v. State, 61 S.W.3d 673, 678 (Tex. App.BCorpus Christi 2001, pet. ref'd). This Court affords the same amount of deference to the trial court's ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those ultimate questions turns on evaluating credibility and demeanor. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89; Villarreal, 61 S.W.3d at 678. However, questions of law and mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. Ross, 32 S.W.3d at 856; Guzman, 955 S.W.2d at 89; Villarreal, 61 S.W.3d at 678.

In this case, the trial judge did not specify his reasons for denying the motion to suppress. Where, as here, no findings of fact are filed by the trial court, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Ross, 32 S.W.3d at 855; see also Loserth v. State, 963 S.W.2d 770, 774 (Tex. Crim. App. 1998). If the trial judge=s ruling is correct on any theory of the law applicable to the case, we will sustain it. See Villarreal, 61 S.W.3d at 678.

The issue before us presents a mixed question of law and fact that does not turn on evaluation of the credibility of witnesses. See Guzman, 955 S.W.2d at 89. We will therefore use a de novo standard of review. Id.

The statement of an accused may be used as evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion. See Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). Prior to interrogation by law enforcement agents, statutory warnings must be given. Tex. Code Crim. Proc. Ann. art 38.22(2)(a) (Vernon 2005). The failure to provide these warnings renders any statement obtained during that interrogation inadmissible per se. Creager v. State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997)(en banc). 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 interrogation, the per se rule of inadmissibility does not apply. Id.[4] Therefore, where inducement is made after the warnings are provided, the issue turns on the extent of the influence. Id. The court looks to the remarks made 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 statement. Id.

A statement is involuntary for due process purposes only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice. Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Zayas v. State, 972 S.W.2d 779, 791 (Tex. App.BCorpus Christi 1998, pet. ref=d). A four prong test must be met in order to render a confession obtained by a promise of a benefit involuntary. Sossamon v. State, 816 S.W.2d 340, 345 (Tex. Crim. App. 1991) (en banc). Under this test, the promise must be (1) of some benefit to the defendant, (2) positive, (3) made or sanctioned by a person in authority, and (4) of such character as would be likely to influence the defendant to speak untruthfully. See id. Assuming arguendo that appellant established the first three prongs of the Sossamon test, there is no record evidence to establish the fourth prong. The Sossamon court stated that for a promise to influence the defendant to speak untruthfully, that promise would have to incline the defendant to admit to a crime he had not committed. Id. For a promise to render a confession involuntary, the inducement must have probably caused the accused to falsely inculpate himself. Espinosa v. State, 899 S.W.2d 359, 364 (Tex. App.BHouston [14th Dist.] 1995, pet. ref'd).

The court of criminal appeals has held that unspecific offers to help a defendant are not likely to induce him to make an untruthful statement and will not invalidate a confession. Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983) (en banc). Similarly, general statements made to a suspect regarding how a confession can sometimes result in leniency do not render a confession involuntary. Muniz v. State, 851 S.W.2d 238, 253 54 (Tex. Crim. App. 1993) (en banc). Even specific, unequivocal promises can lack the persuasive impact needed to show that they will probably induce an accused to make an untruthful statement. See id. (holding officer's promise that he would try to obtain charitable help for defendant's wife and mother was not sufficient inducement to confess to a heinous crime); Jacobs v. State, 787 S.W.2d 397, 400 (Tex. Crim. App. 1990) (en banc) (holding promise to defendant that he would be allowed to see his girlfriend was not sufficient inducement that it would likely cause him to confess); Smith v. State, 779 S.W.2d 417, 427 28 (Tex. Crim. App. 1989) (en banc) (finding that where the defendant wanted an opportunity to take a polygraph test to prove his innocence, and the police promised that he would be examined on a polygraph, the court stated, A[w]e fail to perceive in what way a promise of a polygraph, without more, would operate to induce an accused falsely to inculpate himself.@); Ortiz Salazar v. State, 687 S.W.2d 502, 503 04 (Tex. App. Dallas 1985, pet. ref'd) (finding promise of leniency toward other members of theft ring was unlikely to influence defendant to untruthfully confess to burglary).

We conclude that a comment referring to the possibility of obtaining a lower bond is not the type of promise that would have induced appellant to make an untruthful statement. Appellant=s first issue is overruled.

In his second issue, appellant contends that the trial court erred in denying his requested jury charge instruction regarding the voluntariness of his statement. See Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Appellant's ground of error is based on the rule that once evidence is introduced during the trial on the merits raising an issue as to the voluntariness of the confession, article 38.23 requires the trial court to instruct the jury on the matter. See id.

Appellant did not testify at the trial on the merits before the jury or call any witnesses on the issue of voluntariness of the statement. Instead, he claims that the following cross-examination of Officer Barroso by appellant=s counsel sufficiently raised the issue:

Question: Okay. Let me B let me ask it this way: Did you tell him that if he gave a statement, that if he gave a statement, that you would try to see if the judge would give h[i]m a low bond?

Answer: Oh, yes, sir.

Question: You told him that?

Answer: Yes, sir. I told him I=d try to work with him.

Question: So in your opinion, knowing how the defendant was, he tried as much as possible to give you as much information in the statement whether he remembered or not?

Answer: Right.

Appellant contends that this evidence is clearly sufficient to raise a fact issue as to the voluntariness of his statement, and as such, the trial court should have granted an article 38.23 instruction. The State contends that this evidence was insufficient because there was no evidence that questioned the voluntariness of appellant=s statement to Officer Barroso. We agree.

When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Moore v. State, 574 S.W.2d 122, 124 (Tex. Crim. App. 1978). The evidence which raises the issue may be either strong, weak, contradicted, unimpeached, or unbelievable. Sanders v. State, 707 S.W.2d 78, 80 (Tex. Crim. App. 1986), limited on other grounds, Willis v. State, 790 S.W.2d 307, 314 (Tex. Crim. App. 1990) (en banc). However, when the evidence fails to raise a defensive issue, the trial court commits no error in refusing a requested jury instruction. Kunkle v. State, 771 S.W.2d 435, 444 (Tex. Crim. App. 1986) (en banc). Only when some evidence is presented that a confession is not voluntary is the matter put in issue. Brooks v. State, 567 S.W.2d 2, 3 (Tex. Crim. App. 1978); Lopez v. State, 535 S.W.2d 643, 649 (Tex. Crim. App. 1976).

In his brief, appellant=s only citation to the record regarding evidence heard by the jury on the matter is to the testimony on cross examination of Officer Barroso, in which Barroso testified that he told appellant he would try to work with him in obtaining a lower bond. We conclude that this evidence does not raise the issue of voluntariness to mandate the requested jury charge instruction. See Miniel v. State, 831 S.W.2d 310, 316 (Tex. Crim. App. 1992) (en banc) (holding that cross examination of an officer which raised contention that defendant was beat up during interrogation did not present evidence raising the issue of voluntariness of the confession and finding no error in refusing appellant's requested instruction on voluntariness of the confession).[5] Appellant=s second issue is overruled.

The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex.R.App.P. 47.2(b)

Memorandum Opinion delivered and

filed this the 11th day of August, 2005.

[1] See Tex. Pen. Code Ann. ' 49.08 (Vernon 2003).

[2] See Tex. Pen. Code Ann. ' 49.07 (Vernon 2003).

[3] Officer Barroso testified that he informed appellant that he might be able to get a lower bond if he gave a statement.

[4] It is unclear exactly when Officer Barroso made the comment in question; however, Barroso testified that he read appellant his Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444 (1966), while they were in appellant=s cell. Afterwards, Barroso took appellant to his office, where, according to Barroso, the comment was made. Appellant=s testimony confirmed that the comment was made in Barroso=s office and not in appellant=s cell. Based on this evidence, we conclude that the warnings were given before the comment in question was made. See Loserth v. State, 963 S.W.2d 770, 776 (Tex. Crim. App. 1998).

[5] Assuming, arguendo, that the trial court erroneously refused to submit appellant=s requested instruction , we would then review the entire record to determine whether the defendant suffered some actual harm; theoretical harm is not sufficient to constitute reversible error. Arline v. State, 721 S.W.2d 348, 351-52 (Tex. Crim. App. 1986). If the defendant has suffered any harm, regardless of degree, we will reverse the conviction and remand the cause to the trial court. Murphy v. State, 44 S.W.3d 656, 665-66 (Tex. App.BAustin 2001, no pet.).

In the present case, in light of other evidence of appellant=s guilt, any error in admitting the statement without the instruction would be harmless. The State=s evidence consisted of testimony from Lieutenant Walinsky, responding Officers James Cooper, J.P. Sauceda, and Omar Hinojosa, as well as Officer Cooper=s sworn report. The testimony revealed that appellant was found sitting in the driver=s seat of his vehicle; had a strong odor of alcohol, blood shot eyes, slurred speech; had trouble walking; failed the field sobriety test and had a blood-alcohol level over three times the legal limit. Based on this evidence, we find that appellant would not have suffered any harm even if the trial court erred in refusing the requested instruction.