Michael Joseph Rosenberg, Sr. A/K/A Mike Rosenburg (Rosenberg) A/K/A Joseph Michael Rosenberg, Sr. v. The State of Texas--Appeal from 49th Judicial District Court of Zapata County

MEMORANDUM OPINION
No. 04-03-00812-CR
Michael Joseph ROSENBERG, Jr. a/k/a Mike Rosenberg
a/k/a Joseph Michael Rosenberg, Sr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 1485
Honorable Manuel R. Flores, Judge Presiding (1)

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 20, 2004

AFFIRMED

Michael Joseph Rosenberg ("Rosenberg") pled guilty to the offense of murder and was sentenced to seventy years imprisonment. The sole issue presented on appeal is whether the trial court abused its discretion in denying Rosenberg's motion to suppress his written confession. Rosenberg contends that his written confession was not voluntary. We affirm the trial court's judgment.

Standard of Review

A trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997); Perez v. State, 103 S.W.3d 466, 468 (Tex. App.--San Antonio 2003, no pet.). We view the evidence in the light most favorable to the trial court's ruling, and we afford almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468. The court's application of the law to the facts is reviewed de novo. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468.

Discussion

Article 38.21 of the Code of Criminal Procedure provides that an accused's statement "may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion." Tex. Code Crim. Proc. Ann. art. 38.21 (Vernon 1979). In order to meet constitutional standards, a confession must be voluntary. Moss v. State, 75 S.W.3d 132, 139 (Tex. App.--San Antonio 2002, pet ref'd). A confession is not voluntary if it was induced by a promise. Davis v. State, 961 S.W.2d 156, 159 (Tex. Crim. App. 1998). The Texas Court of Criminal Appeals has held that for a promise to render a confession invalid under Article 38.21, the promise must be "positive, made or sanctioned by someone in authority, and of such an influential nature that it would cause a defendant to speak untruthfully." Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). In addition, a statement is not voluntary 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 by its maker." Moss, 75 S.W.3d 139 (citation omitted). In evaluating the voluntariness of a statement, the factfinder must examine the totality of the surrounding circumstances and the entire course of police conduct with respect to the suspect. Jones v. State, 119 S.W.3d 766, 773 (Tex. Crim. App. 2003); Moss, 75 S.W.3d at 139. Once the accused claims that the confession was not voluntary, the burden is upon the State to prove its voluntariness. Moss, 75 S.W.3d at 139.

Rosenberg initially contends that his statement was not voluntary because it was not recorded or handwritten. A written statement, however, is not required to be recorded, and the defendant is only required to sign the statement. See Tex. Code Crim. Proc. Ann. art. 38.22 (Vernon Supp. 2004). Nothing contained in article 38.22 requires that the statement be handwritten by the defendant as opposed to being a typewritten transcription by an officer. See Mendez v. State, 327 S.W.2d 454, 456 (Tex. Crim. App. 1959) (holding statement that was typewritten by an officer sufficiently complied with the statute).

Rosenberg also contends that he was required to "correct" his statement each time it was inconsistent with the physical evidence and that the officers promised him a reduced charge. The testimony of the officers and Rosenberg is conflicting with regard to these issues.

The officers testified that they did not coerce Rosenberg to change or "correct" his statement and they did not promise Rosenberg a reduced charge or make any promises of leniency. The officers stated that Rosenberg was very talkative and "just sat down and told his story." Although Sheriff Gonzalez stated that Rosenberg was questioned when his statements were inconsistent with the physical evidence, Rosenberg was not coerced into changing his statement; instead, Rosenberg volunteered that he had lied and changed his statement when confronted with the inconsistencies. Rosenberg's testimony disputes the officers' testimony. Rosenberg testified that he was promised that his charge would be dropped to criminally negligent homicide if he confessed. With regard to "correcting" his statement, however, Rosenberg admitted that he had made changes to some of the details in the written statement and that he would have made additional corrections if the statement was incorrect.

We afford almost total deference to the trial court's determination of historical facts that the record supports, especially when the fact findings are based on an evaluation of the witnesses' credibility and demeanor. Guzman, 955 S.W.2d at 88-89; Perez, 103 S.W.3d at 468. The trial court entered findings of fact and conclusions of law, specifically finding, "The defendant was neither coerced nor threatened by Ranger Holdridge or Sheriff Gonzalez nor given promises of leniency in exchange for his statements." We defer to the trial court's finding because it turns on an evaluation of the witnesses' credibility and demeanor.

Conclusion

The trial court's order denying Rosenberg's motion to suppress is affirmed.

Alma L. L pez, Chief Justice

DO NOT PUBLISH

1. The Honorable Henry Schuble presided over the hearing on the motion to suppress and entered findings of fact and conclusions of law in support of his denial of the motion. The Honorable Manuel R. Flores presided over the plea proceeding.