                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-136-CR


KENNETH WAYNE KELLER                                                APPELLANT

                                              V.

THE STATE OF TEXAS                                                       STATE

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            FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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

                          MEMORANDUM OPINION 1

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

      Appellant Kenneth Wayne Keller appeals his conviction for capital murder.

In his sole issue, appellant contends that the trial court committed reversible

error by admitting his recorded oral statement to police. Specifically, appellant

argues that he was not properly admonished according to article 38.22 of the

code of criminal procedure before making the statement. See T EX. C ODE C RIM.

P ROC. A NN. art. 38.22 (Vernon 2005).


      1
          … See T EX. R. A PP. P. 47.4.
                                Background Facts

      On August 12, 2005, Oweta Cawood and her common law husband, Jeff

Anderson, were at home when appellant, their neighbor, stopped by for a visit

to show Anderson his sawed-off shotgun. Cawood testified that appellant was

“always bringing something over odd . . . to show Jeff.” Cawood was in the

kitchen when she heard a gunshot.          She turned and saw appellant shoot

Anderson a second time. Appellant then turned and shot Cawood twice.[4 RR

48-9] Cawood’s friend Michelle Ek, who was living with Cawood and Anderson,

ran outside through the front door, and appellant followed her. While appellant

chased Ek, Cawood ran through the bedroom and escaped out of the bathroom

window. As Cawood hid in an abandoned car in the backyard, she heard more

gunshots from the front yard. Appellant searched for Cawood, but after about

twenty minutes he gave up and drove off.

      As soon as appellant left, Cawood ran to the road in front of her house

and flagged down two men, who called the police. Police later found appellant

at his home and arrested him.

      A grand jury indicted appellant for capital murder for killing Anderson and

Ek. At trial, appellant objected to the admission of a recorded statement that

he made to police while in custody after he was arrested because he was not




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properly admonished under article 38.22 of the code of criminal procedure. The

relevant portions of the recording are as follows:

      [Ranger Tracy Murphree]:      You’re Kenneth Keller?

      [Appellant]:                  Yes, sir.

      [Ranger Murphree]:            Correct? Okay. Kenneth, I know I’ve
                                    read you your rights out at the
                                    scene. I’d like to read them to you
                                    again, okay?

      [Appellant]:                  I’m sorry?

      [Ranger Murphree]:            I’m going to read you your rights
                                    again just to make sure you
                                    understand them, okay?

      [Appellant]:                  I understand them.

      [Ranger Murphree]:            Okay.

      [Appellant]:                  He read them pretty thoroughly yeah.

      [Ranger Murphree]:            Let me read them one more time to
                                    you, okay?

      [Appellant]:                  Okay, yeah, no problem.

      [Ranger Murphree]:            You have the right to remain silent and not
                                    make any statement at all. Any statement
                                    you make may be used against you in
                                    court. You have the right to have an
                                    attorney present during any questioning.
                                    If you cannot afford an attorney, one will
                                    be appointed to you without cost. And
                                    you have the right to terminate this


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                     interview at any time. Do you understand
                     those rights?

[Appellant]:         Yes, sir.

[Ranger Murphree]:   Okay, with those rights in mind, do
                     you wish to talk to me now?

[Appellant]:         Um, yeah, yeah. Well I don’t, I don’t
                     know I don’t I don’t understand
                     what’s going on.

[Ranger Murphree]:   Okay.

[Appellant]:         Do I need an attorney?

[Ranger Murphree]:   It’s entirely up to you. I mean I can’t
                     give you any advice on that one way
                     or another.

[Appellant]:         I mean what what would that consist
                     of? Would we call him and him
                     come up here and?

[Ranger Murphree]:   Well, you know you have the right to
                     [have] an attorney be present during
                     any questioning. If you can’t afford
                     one, one will be appointed for you.
                     And I can’t make that decision for
                     you. That is a decision you have to
                     make.

[Appellant]:         I’m just freaking out.

[Ranger Murphree]:   I understand.

[Appellant]:         I’m just freaking out. I have no idea
                     what’s going on.


                       4
      [Ranger Murphree]:            Okay.

             ....

      [Ranger Murphree]:            We’d just like to talk to you about an
                                    incident that happened if you want
                                    to talk to us, I’d like to talk to you
                                    about it.

      [Appellant]:                  I don’t have a problem with that.

      The trial court overruled appellant’s objections to the admission of the

statement. A jury found appellant guilty of capital murder, and the trial court

assessed punishment at life imprisonment. Appellant timely filed this appeal.

                         Applicable Law and Analysis

      The relevant portions of article 38.22 of the Texas Code of Criminal

Procedure provide that no oral statement of an accused made as a result of a

custodial interrogation shall be admissible against the accused in a criminal

proceeding, unless prior to the statement but during the recording, the accused

is given the required statutory warnings, and the accused knowingly,

intelligently, and voluntarily waives any rights set out in the warning.     T EX.

C ODE C RIM. P ROC. A NN. art. 38.22, § 2(a). The statutory warnings include the

following:

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


                                       5
      (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.

Id.

      Appellant argues that although he was warned that any statement he

made may be used against him in court, Ranger Murphree failed to advise him

that the statement could be used against him at trial; thus, the warning was

insufficient.   See id. § 2(a)(1), (2).   However, under section 3(e)(2) of the

statute, a statement satisfies the requirements of article 38.22 if the “accused

was given the warning in Subsection (a) of Section 2 . . . or its fully effective

equivalent.” Id. § 3(e)(2) (emphasis added); Bible v. State, 162 S.W.3d 234,

240 (Tex. Crim. App. 2005).        Therefore, if the warnings given by Ranger

Murphree were the “fully effective equivalent” of the warnings outlined in

section 2(a), then article 38.22 does not bar admission of the statements. T EX.

C ODE C RIM. P ROC. A NN. art. 38.22; Bible, 162 S.W.3d at 240.

      The Texas Court of Criminal Appeals has previously held that the two

warnings at issue in this case “appear to largely overlap and, in fact, ‘court’ is

                                          6
the broader term, and is reasonably understood to include the term ‘trial.’”

Bible, 162 S.W.3d at 241. Here, Ranger Murphree informed appellant that he

had the right to remain silent or not to make any statement, that any statement

he made could be used against him in court, that he had a right to have an

attorney present or appointed, and that he had the right to terminate the

interview at any time. Appellant stated that he understood his rights and chose

to talk to Ranger Murphree. Furthermore, appellant acknowledged that he had

already been given the warnings once before. We hold that Ranger Murphree’s

admonishments were the fully effective equivalents of the admonishments

listed in article 38.22, section 2(a), and, thus the trial court properly determined

that appellant’s statements were not barred by article 38.22.       See T EX. C ODE

C RIM. P ROC. A NN. art. 38.22, § 3(e)(2); Bible, 162 S.W.3d at 241. Thus, we

overrule appellant’s sole issue.




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                                Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.




                                             PER CURIAM

PANEL F:     LIVINGSTON, HOLMAN, and GARDNER, JJ.

DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)

DELIVERED: May 15, 2008




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