                       COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                            NO. 02-12-00156-CR
                            NO. 02-12-00157-CR


DEMARCUS MCCOWAN                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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                       MEMORANDUM OPINION 1

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      Appellant Demarcus McCowan appeals his conviction for two counts of

aggravated robbery. We previously overruled Appellant’s first and third issues

and now overrule Appellant’s second issue.      Accordingly, we affirm the trial

court’s judgments.




      1
      See Tex. R. App. P. 47.4.
      In a prior memorandum opinion, we overruled Appellant’s first and third

issues, concluding that the trial court did not abuse its discretion by (1) denying

Appellant’s motion to suppress evidence or (2) overruling his objection to the

State’s extraneous-offense question. McCowan v. State, Nos. 02-12-00156-CR,

02-12-00157-CR, 2013 WL 2435439, at *2, 5–6 (Tex. App.—Fort Worth June 6,

2013, no pet. h.) (mem. op. & order, not designated for publication). However,

we abated the appeal in order for the trial court to enter the required findings of

fact and conclusions of law regarding Appellant’s contention that his confession

was involuntary. Id. at *3; see Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West

2005). The trial court has now entered its findings and conclusions, concluding

that Appellant’s custodial statement was voluntary.

      We previously recounted the pertinent facts regarding Appellant’s custodial

written statement.   McCowan, 2013 WL 2435439, at *3.          In short, Detective

James Weisinger testified at the suppression hearing that he read Appellant the

required warnings after his arrest and that Appellant waived his right to remain

silent. After Appellant made an inculpatory statement, Weisinger wrote down the

statement, which Appellant approved and signed. The signed statement also

included the required warnings. The trial court, in its findings based on testimony

adduced at the pretrial motion-to-suppress hearing, found that Weisinger read

Appellant the warnings, Appellant waived his rights, Weisinger wrote down

Appellant’s subsequent inculpatory statement, and Appellant signed and

approved the written statement. Appellant asserts on appeal, as he did in the


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trial court, that Weisinger never gave the required warnings and that he did not

give a statement to Weisinger or sign such a statement. See Tex. Code Crim.

Proc. Ann. art. 38.22, § 2.

      “A statement of an accused may be used in evidence against him if it

appears that the same was freely and voluntarily made without compulsion or

persuasion.” Id. art. 38.21 (West 2005); see also Jackson v. Denno, 378 U.S.

368, 376, 84 S. Ct. 1774, 1780 (1964) (holding admission of involuntary

confession violates defendant’s due-process rights). 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 fact findings are based on an

evaluation of credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex.

Crim. App. 2000). We afford 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 questions turns on evaluating credibility

and demeanor. Id. But 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. State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). We

sustain a trial court’s ruling on a motion to suppress if it is correct on any theory

of law applicable to the case. Ross, 32 S.W.3d at 856.

      Here, the trial court made credibility determinations adverse to Appellant’s

position.   Namely, the trial court found that Weisinger gave Appellant the


                                         3
warnings, Appellant voluntarily waived those rights, and Appellant approved and

signed both pages of the written statement. Although Appellant testified that he

never received the warnings, made a statement, or signed the statement, the trial

court was uniquely positioned to determine the credibility of the witnesses. We

will not second guess these determinations.          The evidence adduced at the

suppression hearing supports the trial court’s findings and conclusions; thus, we

hold that the trial court did not abuse its discretion in denying Appellant’s motion

to suppress. See, e.g., Davis v. State, 313 S.W.3d 317, 336–38 (Tex. Crim. App.

2010), cert. denied, 132 S. Ct. 122 (2011); Sells v. State, 121 S.W.3d 748, 767

(Tex. Crim. App.), cert. denied, 540 U.S. 986 (2003); Wood v. State, 18 S.W.3d

642, 646 (Tex. Crim. App. 2000).

      We overrule issue two.          Having overruled all of Appellant’s issues, we

affirm the trial court’s judgments.


                                                      LEE GABRIEL
                                                      JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

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

DELIVERED: August 8, 2013




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