                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00346-CR


KINTE L. SARGENT                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

                                     ------------

      FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

                                     ------------

                         MEMORANDUM OPINION1
                                      ----------

                                   Introduction

      Appellant Kinte L. Sargent appeals his conviction for possessing a

controlled substance with intent to deliver, asserting that the trial court erred by

denying his motion to suppress a recorded interview in which he admitted that

drugs seized during a search were his. We affirm.




      1
       See Tex. R. App. P. 47.4.
                  Background Facts and Procedural History

      Appellant was playing video games in a Fort Worth duplex with Cedric and

Cory Finley when narcotics officers, executing a search warrant, entered through

the front door. Appellant ran from the living room toward a bedroom before

stopping in the hallway and lying down on the floor. He told officers securing the

duplex as they walked by that any drugs they found belonged to him.

      Once the duplex was secured, Officer Thomas Bulger led Appellant

outside and placed a tape recorder between them on the hood of a pickup truck

parked in the driveway. He turned the recorder on, read Appellant the Miranda

warnings,2 and recorded Appellant admitting that the drugs seized in the duplex

were his.

      Officers searching the kitchen found digital scales and a large, black

plastic bag in a cupboard. The bag contained approximately one hundred grams

of crack cocaine divided into smaller plastic bags.

      The officers arrested Appellant, and he was charged with possession of

four or more but less than two hundred grams of cocaine with intent to deliver.

Before trial, he filed a motion to suppress his recorded statement, claiming that

its admission would violate his rights under provisions of the state and federal

constitutions and the code of criminal procedure.     The trial court denied the

motion to suppress after a hearing.


      2
       See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).


                                         2
      At trial, Officer Bulger testified that as soon as the officers entered the

duplex, Appellant spontaneously admitted owning all the drugs. Appellant did not

object to this testimony.    Officer Bulger further testified that he subsequently

recorded an interview with Appellant during which Appellant reiterated that all the

drugs were his. The recording was admitted in evidence and published to the

jury.3 After the State rested, Cedric Finley testified for the defense that he did not

hear Appellant claim that the drugs were his.

      The jury found Appellant guilty and assessed his punishment at thirty-five

years’ confinement. The trial court sentenced him accordingly.

                                 Issues on Appeal

      In six issues, Appellant claims that the trial court abused its discretion by

admitting his recorded statement in violation of the Fourth, Fifth, Sixth, Eighth,

and Fourteenth Amendments to the United States Constitution; article 1, section

9 of the Texas constitution; and articles 1.04, 38.22 and 38.23 of the Texas Code

of Criminal Procedure. Appellant combines all six issues and argues that his

recorded statement should have been suppressed because (1) the officer’s

warning was an improper statement of the law; and (2) Appellant did not


      3
        Before trial, the driveway recording of the interview was copied to two
compact discs, marked State’s Exhibits 1 and 11. State’s Exhibit 1 contained the
original recording and two redacted versions that the prosecutor had prepared
anticipating potential objections at trial. State’s Exhibit 1 was admitted and
published to the trial court at the pretrial hearing. State’s Exhibit 11 contained
only the original unredacted recording and was admitted at trial and published to
the jury. Neither redacted version was used at trial.


                                          3
expressly state that he understood his rights and that he voluntarily, knowingly,

and intelligently waived them.

      Initially, the State responds that we need not consider all of Appellant’s

issues because he did not argue them all at the pretrial hearing. Specifically, the

State points out that Appellant did not argue to the trial court that admitting the

statement would violate the Texas constitution, article 1.04 of the code of criminal

procedure, and the Fourth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution. Thus, the State argues, Appellant has waived all but

his claims under the Fifth Amendment and article 38.22 of the code of criminal

procedure.

      In support of this argument, the State relies on appellate rule 33.1(a) and

two cases from the court of criminal appeals.4 Neither of the cases cited by the

State, however, involves a trial court’s denial of a motion to suppress, as is the

case here. Moreover, rule 33.1(a) states that as a prerequisite for presenting a

complaint for appellate review, the record must show that the complaint was

made to the trial court by a timely request, objection or motion that stated the

grounds for the sought-after ruling with sufficient specificity to make the trial court

aware of the complaint. Tex. R. App. P. 33.1(a)(1); see Mosley v. State, 983

      4
      The State cites Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App.
2000) for the proposition that error under the Sixth Amendment Confrontation
Clause may be waived; and Gallo v. State, 239 S.W.3d 757, 758 (Tex. Crim.
App. 2007) for its holding that the appellant’s trial objection in that case did not
comport with his argument on appeal and, therefore, that his complaint on appeal
was not preserved.


                                          4
S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S.

1070 (1999). The record shows that Appellant timely filed a motion to suppress,

that the motion plainly invokes the provisions upon which he bases his appellate

claims for relief, and that the trial court denied the motion. Initially, therefore,

Appellant preserved all his claims for review. See Tex. R. App. P. 33.1(a)(1);

Mosley, 983 S.W.2d at 265; Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim.

App. 2004).

      We say initially because, although Appellant cited state and federal

constitutional provisions as grounds for relief in both his motion to suppress and

in his brief, he does not distinguish his state and federal constitutional claims or

provide substantive argument in support of each. Specifically, he does not argue

how the Texas constitution affords more protection than its federal counterpart.

Accordingly, of his constitutional claims, we consider only those relying on the

United States Constitution and we disregard those based upon the Texas

constitution. See Welch v. State, 93 S.W.3d 50, 52 n.5 (Tex. Crim. App. 2002);

Heitman v. State, 815 S.W.2d 681, 690–91 n.23 (Tex. Crim. App. 1991).

Appellant’s second and fifth issues, therefore, are overruled. We now turn to the

remaining ones.

                               Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).


                                         5
In reviewing the trial court’s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court’s rulings on

(1) questions of historical fact, even if the trial court’s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court’s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the


                                           6
trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818–19.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings, that are supported by the record, are also dispositive of the legal ruling.

Id. at 818.

      We must uphold the trial court’s ruling if it is supported by the record and

correct under any theory of law applicable to the case even if the trial court gave

the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.

Crim. App. 2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App.

2003), cert. denied, 541 U.S. 974 (2004).

                                  The Statement

      We begin by examining the entire statement, which we have transcribed

and reproduced below:

              OFFICER: Hey, what’s your last name, dude?

              APPELLANT: S-A-R-G-E-N-T.

              OFFICER: Hang on, what?

              APPELLANT: S-A-R-G-E-N-T.

              OFFICER: S-A-R-G-E-N-T?

              APPELLANT: Uh-huh.

              OFFICER: Your first name?

              APPELLANT: K-I-N-T-E.

              OFFICER: K-I-N-T-E? Middle?

              APPELLANT: L.


                                         7
      OFFICER: L?

      APPELLANT: Yes, sir.

      OFFICER: What’s your birthday?

      APPELLANT: 2-6-77.

      OFFICER: 2-6-77. You know what today’s date is?

       APPELLANT: Unh-uh, but, let me tell you [inaudible], cut that
off so I can tell you something first, please.

      OFFICER: Cut off the recording?

       APPELLANT: So I can tell you something first. That’s going
to [expletive deleted] me in the end.

      OFFICER: You know what today’s date is?

      APPELLANT: No sir.

       OFFICER: Hey, is this the 30th? 30th? All right. I’m going to
read you your warning. Your adult warning. These are your rights,
OK? You have the right to remain silent, not make any statement at
all. Any statement you make may be used against you at your trial.
Any statement you make may be used as evidence against you in
court. You have the right to have a lawyer present to advise you
prior to and during any questioning. If you are unable to employ a
lawyer, you have the right to have a lawyer appointed to you to
advise you prior to and during any questioning. You have the right
to terminate the interview at any time. You understand that? Do you
have any questions about any of those? OK. Do you know who
lives at this house?

      APPELLANT: Unh-uh.

      OFFICER: You don’t know who lives here?

      APPELLANT: Oh, the lady lives here.

      OFFICER: Who is she?



                                 8
       APPELLANT: Oh, you don’t know [inaudible], you know what
I’m saying [inaudible] please don’t make me do that. I’m, I already
told you that it was mine.

        OFFICER: OK, the only statement I can use against you in
court is a written statement or a recorded statement. Like I told you,
if you say that the drugs in this house are yours then you’re going to
have to claim that they’re yours either recorded or written or I can’t
use it.

       APPELLANT: [inaudible] You not going to take anybody to
jail? Or are you just going to take me to jail?

       OFFICER: If I am convinced that everything in this house
that’s illegal that we are interested in belongs to you, then you are
going to be the only person charged.

      APPELLANT: That’s what I want to do.

      OFFICER: OK, do you know who lives in this house?

       APPELLANT: That girl right there, [inaudible], that girl right
there, Rene lives in there.

      OFFICER: Rene. Do you know who she is? I mean is she
related to you or a friend or what?

      APPELLANT: She’s not a friend; she’s not a lady friend.

      OFFICER: OK. So, why are you over here?

      APPELLANT: I’m over here because my other cousin, one of
my other cousins, the skinny dude, we, we been over here chillin.

      OFFICER: What’s his name?

      APPELLANT: Cedric.

     OFFICER: Cedric. OK. So, you’re hanging out with him.
OK. During the search warrant at this house we found around four
ounces of crack cocaine. Do you know anything about that?

      APPELLANT: It’s mine.


                                  9
      OFFICER: That belongs to you?

      APPELLANT: Yes, sir.

      OFFICER: How did it get to this house?

      APPELLANT: I, I put it off in there.

      OFFICER: How did it get to this house?

      APPELLANT: Oh, I put it off in there.

      OFFICER: Did you drive it over here?

         APPELLANT: [inaudible] I drive it over here. It’s mine. I put
it off in there. I didn’t drive it over here but I put it off in there.

      OFFICER: You understand what my job is?

        APPELLANT: I’m not going to tell you all the shit that we put
off in there.

      OFFICER: OK. You understand what my job is?

      APPELLANT: Yes, sir.

      OFFICER: OK. My job is to find drug dealers and make the
best case that I can against them. OK? From the information that I
got about you, you’re a person that sells cocaine and crack cocaine.
That’s why we’re here tonight. OK. So, it’s kind of weird that if we
come over here, you’re here, and you’re car is here, and we find
crack cocaine and you’re wanting to take responsibility for it.

      APPELLANT: It’s weird?

      OFFICER: Yeah, and now you’re telling me somebody gave it
to me.

     APPELLANT: I’m, check, because the reason why is because
nobody in the house except me knew anything about it.

      OFFICER: OK. Why was it here?



                                  10
       APPELLANT: [Sigh], [inaudible] any more questions that
that’s not even, that’s not has nothing to do with why it’s here is
having to do with its mine and you know what I did with it.

      OFFICER: OK. So it’s here for somebody to sell. And you’re
saying . . . .

        APPELLANT: No, not out of this house. It’s being hibernated
like.

        OFFICER: I gotcha.

        APPELLANT: I hid it off in there.

        OFFICER: I gotcha. OK. So it’s just here stashed.

        APPELLANT: I hid it off in there.

        OFFICER: Gotcha. Do you know what it’s packaged in?

        APPELLANT: Yeah, off in a black bag. God!

      OFFICER: So, all you’re telling me is that you brought it over
here to hide to keep for a later time. Is that pretty much it?

        APPELLANT: I was going to smoke it.

        OFFICER: Four ounces?

        APPELLANT: Hell, yeah, [laughs] I smoke the shi–

       OFFICER: All right. All right, dude, [inaudible], you deal
drugs. You know that you deal drugs. That story’s wrong. Don’t try
to side-step it.

        APPELLANT: I ain’t going to tell you that I deal drugs, officer.

        OFFICER: I thought you said you wanted to be honest with
me.

        APPELLANT: I’m being honest with you.

        OFFICER: OK. Then do it.


                                   11
            APPELLANT: But I’m saying you told me that anything I say
      going to be held and accounted against me . . . .

            OFFICER: Yes.

             APPELLANT: I done told you it was mine. I ain’t going, um, I
      ain’t going to, um, uh, whatever you call it . . .

            OFFICER: Incriminate yourself?

            APPELLANT: . . . any more than what I’ve already did.

             OFFICER: Well, you, you’re kind of at a crossroads here
      because you’re saying this stuff belongs to me and nobody else in
      this house. But that’s all you want to say. You don’t want to talk
      about anything else. That puts me in a bad situation. I’m trying to
      bring this case to the conclusion.

            APPELLANT: Come on man, you know that I told you it’s
      mine and nobody else knew. That’s how I want to tell you. Nobody
      else knew it was in there except me. And that’s it, it was mine, it
      belonged to me, Kinte Sargent.

            OFFICER: Perfect. Is there anything else in this house illegal
      that belongs to you that they found or gonna? Nothing at all?

            APPELLANT: Nothing else.

            OFFICER: OK. Anything else you want to talk to me about?
      No.
                                      Discussion

      In his first and third issues, Appellant contends that the trial court erred by

admitting the recording because it contains no expression from Appellant that he

understood his rights after Officer Bulger read them to him. He asserts that

Officer Bulger never asked him if he understood what his rights were.           The

recording disproves this assertion.




                                         12
      Appellant is correct, though, that the record shows that no express waiver

of his rights appears on the recording. But the law does not require that the

recording reflect an express waiver of rights. Rocha v. State, 16 S.W.3d 1, 12

(Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1, 16 (Tex. Crim. App.

1994), cert. denied, 516 U.S. 920, 116 S. Ct. 314 (1995). And in Berghuis v.

Thompkins, the United States Supreme Court recently affirmed that waivers need

not be expressly stated but can be implied from all the circumstances. 130 S. Ct.

2250, 2261 (2010). The State must prove, however, that the accused did, in fact,

knowingly and voluntarily waive his rights; that is, it must prove that the waiver

was made with the full understanding of the right being abandoned and of the

consequences of that abandonment with the further burden of proving that the

decision was made freely and deliberately without coercion or deception. Id. at

2261–62.

      On the recording in this case, Officer Bulger read Appellant his rights,

asked him if he understood them, and asked him if he had any questions about

any of them. Thereafter, Appellant kept talking. Moreover, as the exchange

below demonstrates, Appellant expressed a clear and fairly sophisticated

understanding of his rights and a willingness to freely incriminate himself––up to

a point.

            APPELLANT: I ain’t going to tell you that I deal drugs, officer.

            OFFICER: I thought you said you wanted to be honest with
      me.



                                       13
              APPELLANT: I’m being honest with you.

              OFFICER: OK. Then do it.

              APPELLANT: But I’m saying you told me that anything I say
        going to be held and accounted against me . . . .

              OFFICER: Yes.

               APPELLANT: I done told you it was mine. I ain’t going, um, I
        ain’t going to, um, uh, whatever you call it . . .

              OFFICER: Incriminate yourself?

              APPELLANT: . . . any more than what I’ve already did.

Finally, Appellant demonstrated that he understood that what he told the officer

could result in his incarceration:

               APPELLANT: [inaudible] You not going to take anybody to
        jail? Or are you just going to take me to jail?

               OFFICER: If I am convinced that everything in this house
        that’s illegal that we are interested in belongs to you, then you are
        going to be the only person charged.

              APPELLANT: That’s what I want to do.

        Contrary to Appellant’s assertion on appeal, our review of the recording

shows that Appellant expressed sufficient understanding of his rights to control

how much he would incriminate himself, that is, he was willing to go up to a point

and no further: admitting that he possessed drugs, but denying intent to distribute

them.    We hold, therefore, that the recording contains Appellant’s expressed

understanding of his rights.     Further, Appellant has not argued nor is there




                                         14
evidence that he was coerced or intimidated into making the statements he

made. Accordingly, we overrule Appellant’s first and third issues.

      In his fourth and sixth issues, Appellant contends that the trial court erred

by admitting the recording because the warning the officer gave him was

improper.

      Article 38.22 requires the following warning be given an accused before a

recorded statement may be used against him:

            (1) he has the right to remain silent and not make any
      statement at all and that any statement he makes may be used
      against him at his trial;

            (2) any statement he makes may be used as evidence
      against him in court;

             (3) he has the right to have a lawyer present to advise him
      prior to and during any questioning;

            (4) if he is unable to employ a lawyer, he has the right to have
      a lawyer appointed to advise him prior to and during any
      questioning; and

            (5) he has the right to terminate the interview at any time.

Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3(a)(2) (Vernon 2005).

As the transcribed recording reveals, Officer Bulger recited the above warning,

practically verbatim. During the course of the conversation and in response to

Appellant’s apparent concern over implicating someone who lived in the duplex

and his desire to take sole responsibility for the drugs that were seized, the

officer explained, ―The only statement I can use against you in court is a written

statement or a recorded statement. Like I told you, if you say that the drugs in


                                        15
this house are yours then you’re going to have to claim they’re yours either

recorded or written or I can’t use it.‖

      Appellant characterizes the officer’s warning as ―contradictory and

improper: Any statement you make may be used against you and no statement

you make may be used against you unless it’s written or recorded.‖ This is a

mischaracterization.

      First, we note that on the recording Appellant admitted owning the drugs

even before the officer gave what Appellant characterizes as the contradictory

part of the warning. Moreover, the record shows that while Appellant may have

balked at having what he said recorded and been unwilling to incriminate anyone

else, he was anxious to talk and take sole responsibility for the drugs found in the

duplex. Officer Bulger testified at trial,

      The whole time -- as soon as we made entry he was saying,
      ―[E]verything is mine, everything is mine; nobody knew anything but
      me. Anything you find is mine. There is drugs here,‖ and just on
      and on and on. It was hard to get him to be quiet.

      Further, the recording indicates that the reason Appellant was so eager to

talk was to ensure that no one else would be held responsible for the drugs.5

After the officer assured him that he would be the only person charged if he

convinced the officer, through a written or recorded statement, that everything



      5
        Appellant told the officer, ―Nobody in the house except me knew anything
about it.‖



                                             16
illegal in the house belonged to him, Appellant responded, ―That’s what I want to

do.‖

       We hold that Officer Bulger’s telling Appellant that he could not use a

statement from Appellant unless it was written or recorded was not given as part

of the required warning.      Appellant’s appropriate questions and responses

demonstrate that he understood his rights, including that the recording could be

used against him and he actively took full responsibility for all illegal substances

found in the search. See Berghuis, 130 S. Ct. at 2261.

       We have reviewed the evidence in the light most favorable to the trial

court’s ruling and hold that the evidence supports the trial court’s express finding

that Appellant was properly warned and that he freely and voluntarily made the

statements contained on the recording.       Accordingly, we overrule Appellant’s

fourth and sixth issues.

                                   Conclusion

       Having overruled all of Appellant’s issues, we affirm the trial court’s

judgment.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 7, 2011


                                        17
