ENRIQUE VELA VELA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED and Opinion Filed May 13, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00267-CR
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ENRIQUE VELA VELA, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F04-58837-IM
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OPINION
Before Justices O'Neill, Richter, and Lang
Opinion By Justice Richter
        A jury convicted Enrique Vela Vela of the aggravated sexual assault of his girlfriend's eleven-year-old sister and assessed punishment at sixty-five years confinement and a $10,000 fine. In two points of error, Vela argues the trial court erred in failing to suppress his written statement to the police. Finding no error, we affirm as modified.
Background
        Vela was charged with the offense on November 2, 2004, after the victim confided in her grade school teacher that Vela had assaulted her numerous times. Vela was arrested at his home and taken to police headquarters where he was interviewed by Dallas police detective Abel Lopez. Vela initially denied the allegations but later admitted in a written statement that he had touched the victim's “private part” after “she threw herself at [him].”
        Vela subsequently moved to suppress his statement, arguing it was involuntary. The trial court heard the motion at a pretrial hearing, and again at trial, where both Lopez and Vela testified. Lopez testified he read Vela “his Miranda   See Footnote 1  warnings” and also gave Vela a written copy so Vela could read them himself. See Tex. Code Crim. Proc. Ann. Art. 38.22, § 2 (Vernon Supp. 2007). Vela stated he understood his rights, would waive them and talk to Lopez, and then initialed the warnings and waiver contained in the statement. The two talked for about forty-five minutes and then, at Lopez's request, Vela began writing the statement. After a few minutes, Vela asked Lopez to finish the statement for him. Lopez testified he wrote verbatim what Vela told him, read the statement to Vela when he was done, and gave Vela a copy to read along with him. Lopez then confirmed the statement reflected what Vela had told him, gave Vela an opportunity to correct or add to the statement, and had Vela sign it. According to Lopez, at no point during the interview did Vela ask for an attorney or ask to terminate the interview. Lopez also testified he did not promise Vela anything in exchange for the statement or threaten Vela if he did not confess. Lopez's testimony was corroborated at trial by two police officers who had observed the interview.
        By contrast, Vela testified he had not given up his rights before signing the statement and had not initialed the warnings and waiver of rights contained in the statement. Vela further testified he was innocent and had told Lopez so. Lopez, however, insisted Vela had assaulted the victim and told him he had evidence to prove it. According to Vela, Lopez gave him a “blank paper” to sign. Vela testified he signed it, although it was blank, because Lopez had told him “it would help him.” Lopez did not read the statement to him after it had been written and he did not know what was in the statement until his counsel showed it to him a few months before trial.         Specifically finding “the warnings were given” and that Vela was not credible “at least for purposes of the suppression hearing,” the trial court concluded the statement was voluntary and denied the motion. The trial court also overruled Vela's objection to the statement at trial.
Discussion
        Relying on his testimony that he signed a “blank statement,” Vela argues in his first point that the statement was not his and was thus involuntary. In his second point, Vela argues his statement was involuntary because he did not understand the statement could be used against him nor that he waived his right to counsel. Vela maintains the statement should have been suppressed under Texas Code of Criminal Procedure article 38.22 which provides that a statement is admissible only if on its face it shows the accused was advised of his rights and he “knowingly, intelligently, and voluntarily” waived those rights prior to and during the making of the statement. Tex. Code Crim. Proc. art. 38.22, §2.
        We review a trial court's ruling on a suppression motion for an abuse of discretion. Delao v. State, 235 S.W.3d 235, 238-39 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 1128 (2008). Because the trial court is the sole judge of the credibility of the witnesses and the weight of their testimony, we give almost total deference to the trial court's determination of historical facts and then review de novo the trial court's application of the law to those facts. Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003); Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). In conducting our review, we look at the totality of the circumstances and view the evidence in the light most favorable to the trial court's ruling. Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000); State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
        Viewing the evidence here under the appropriate standard, we conclude the trial court did not abuse its discretion in denying Vela's motion to suppress the statement. As stated, Lopez testified Vela signed the statement after
 
*Lopez provided him with a copy of his rights and read them to him;
*he stated he understood his rights, waived them and would talk to him;
*he initialed the warnings and waiver contained in the statement;
*Lopez wrote the statement;
*Lopez read him the statement as written; and
*Lopez gave him an opportunity to make any corrections or additions.
 
Lopez also testified he did not promise Vela anything in exchange for the statement or threaten Vela if he did not provide a statement. Based on Lopez's testimony, along with the corroborating testimony from the officers who observed the interview, the trial judge could have found Vela voluntarily waived his rights and told Lopez what to include in the statement. Although Vela maintained he signed a blank statement, the trial court, as the exclusive judge of the credibility of the witnesses, was free to find Vela not credible and disregard his testimony. We will not disturb that finding. See, e.g., Moore v. State, 233 S.W.3d 32, 45 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (deferring to trial court's implicit credibility determination in overruling complaint that confession should have been suppressed); Fineron v. State, 201 S.W.3d 361, 366 (Tex. App.-El Paso 2006, no pet.) (concluding trial court did not err in overruling suppression motion where only evidence supporting motion was appellant's and court found appellant lacked credibility). Additionally, although Vela argues he did not understand the statement could be used against him nor that he waived his right to counsel, no testimony supports his argument. Vela's testimony was that he did not waive his rights, not that he did not understand them. We overrule Vela's points of error.
        We note the judgment incorrectly reflects Vela was convicted of attempted aggravated sexual assault. The judgment further reflects the offense was committed on November 2, 2003, with back time credit beginning as of that date, instead of November 2, 2004. Accordingly, we modify the judgment to reflect Vela was convicted of aggravated sexual assault, committed on November 2, 2004, and is entitled to back time credit beginning then. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993).
        As modified, we affirm the trial court's judgment.
 
 
 
                                                          
                                                          MARTIN RICHTER
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060267F.U05
 
Footnote 1          Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).