                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00406-CR

ROSALYN BURDETT,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 18th District Court
                             Johnson County, Texas
                              Trial Court No. F46691


                           MEMORANDUM OPINION


      Rosalyn Burdett appeals from a conviction for continuous sexual abuse of a child

for which she was sentenced to life in prison. TEX. PEN. CODE ANN. § 21.02 (West 2011).

Burdett complains that the trial court abused its discretion by denying her motion to

suppress evidence that was obtained illegally, that she received ineffective assistance of

counsel, and that the trial court abused its discretion by denying her motion to suppress
two interviews with law enforcement that she contends were involuntary. Because we

find no reversible error, we affirm the judgment of the trial court.

                               Motion to Suppress Evidence

        In her first issue, Burdett complains that the trial court abused its discretion by

denying her motion to suppress evidence found on an external hard drive which she

argues was obtained illegally. Burdett argues that her ex-husband, Travis, stole the

hard drive and therefore, the images found on the hard drive were illegally obtained,

leading to their discovery and then given to law enforcement.

        In her third issue, Burdett complains of the trial court's denial of her motion to

suppress the statements she gave in two interviews to law enforcement after her arrest

because there was not an affirmative waiver of her rights pursuant to section 38.22 of

the Code of Criminal Procedure and Miranda and because her statements were not

voluntarily made. See TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005); Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Standard of Review

        We employ a bifurcated standard of review when reviewing motions to

suppress. Baird v. State, 398 S.W.3d 220, 226 (Tex. Crim. App. 2013). We measure the

propriety of the trial court's ruling under the totality of the circumstances, extending

almost total deference to the trial court's rulings on questions of historical fact, as well

as on its application of law to fact questions that turn upon credibility and demeanor.


Burdett v. State                                                                      Page 2
Pecina v. State, 361 S.W.3d 68, 79 (Tex. Crim. App. 2012); Leza v. State, 351 S.W.3d 344,

349 (Tex. Crim. App. 2011). We review de novo the trial court's rulings on questions of

law and its rulings on application of law to fact questions that do not turn upon

credibility and demeanor. Pecina, 361 S.W.3d at 79; Leza, 351 S.W.3d at 349. We view

the record in the light most favorable to the trial court's conclusion and reverse the

judgment only if it is outside the zone of reasonable disagreement. State v. Dixon, 206

S.W.3d 587, 590 (Tex. Crim. App. 2006).

        On appeal, this Court "does not engage in its own factual review but decides

whether the trial judge's fact findings are supported by the record. If the trial court's

findings are supported by the record," we are "not at liberty to disturb them, and on

appellate review, we address only the question of whether the trial court improperly

applied the law to the facts." Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); see Dixon, 206 S.W.3d at 590 ("We will sustain the lower court's ruling if it is

reasonably supported by the record and is correct on any theory of law applicable to the

case.").

Illegally Obtained Evidence

        Burdett's first motion sought suppression of evidence that was found on a hard

drive that she contends that Travis had stolen from her residence when he left. Burdett

had called Travis and asked him to come and stay at her house and keep their two

children for about four months while she was out of town for job training. Travis and


Burdett v. State                                                                   Page 3
his girlfriend came and moved into Burdett's home. They were allowed to sleep in the

master bedroom and set up their two computer systems in the living room in Burdett's

house. Burdett would come and spend the weekend with them approximately every

two weeks.

        Toward the end of the four month period, Travis testified that Burdett informed

Travis that he and his girlfriend would have to leave immediately because Burdett's

boyfriend, Jay Morgan, would be upset if they stayed longer. According to Travis, they

immediately packed their belongings and left within the two hour window they were

given. This included hastily packing all of their computer equipment.

        Travis and his girlfriend moved to Kansas where they placed the computer

equipment in a garage. Some months later, Travis went to the garage to retrieve an

external hard drive that he was going to use to teach his girlfriend how to use Linux.

Travis saw an external hard drive that he recognized was not his. Travis testified that

he intended to return the hard drive to Burdett in the future. He decided, however, to

"triage" the hard drive, which involved backing up important documents or pictures on

the hard drive. In doing so, Travis located a number of inappropriate pictures of a

sexual nature depicting his children and Burdett. Travis and his girlfriend contacted

law enforcement and Burdett was arrested a short time later.

        Burdett claimed that she had stored the external hard drive with her jewelry, the

children's games, and other personal items in the back of her closet in her bedroom.


Burdett v. State                                                                   Page 4
Burdett testified that she had informed Travis to keep out of her closet and did not give

Travis permission to use her computer equipment, including the hard drive. Burdett

also testified that she did not force Travis and his girlfriend to leave immediately but

told them they needed to leave the next day. According to Burdett, Travis and his

girlfriend got upset and left right then, even before telling the children goodbye after

school.

        Burdett filed a motion to suppress the evidence found on the external hard drive

as well as all evidence gained after that time as fruit of the poisonous tree because the

taking of the hard drive by Travis was theft. After a hearing, the trial court denied the

motion.

        Our review of the record shows that the trial court, as factfinder, made the

finding that Travis did not commit theft by taking the external hard drive from

Burdett's residence. The trial court was called upon to decide which of two very

different stories to believe and, based on the trial court's ruling, the trial court

necessarily determined that Travis's account was credible and Burdett's was not. The

record supports those factfindings. Using the appropriate standards and giving proper

deference to the factfinder, the trial court did not abuse its discretion by denying

Burdett's motion to suppress evidence. We overrule issue one.




Burdett v. State                                                                   Page 5
Oral Statements

        Burdett also filed a motion to suppress the statements she gave in two interviews

to law enforcement after her arrest because there was not an affirmative waiver of her

rights pursuant to section 38.22 of the Code of Criminal Procedure and Miranda and

because her statements were not voluntarily made. See TEX. CODE CRIM. PROC. ANN. art.

38.22 (West 2005); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Burdett claims that in addition to the warnings required by article 38.22 and Miranda,

two questions on the back of the waiver card she signed should have been read to her,

which asked if she understood her rights and if she wished to talk to the officers at that

time. Burdett also argues that there was no express waiver of her rights and that any

waiver was not voluntary because of the conditions surrounding the interrogation.

Waiver of Rights

        Under article 38.22, no oral statement of an accused made as a result of custodial

interrogation shall be admissible against an accused in a criminal proceeding unless (1)

the statement was recorded and (2) prior to the statement but during the recording, the

accused was warned of his rights and knowingly, intelligently, and voluntarily waived

those rights. TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Joseph v. State, 309 S.W.3d 20,

23-24 (Tex. Crim. App. 2010). The warnings required by article 38.22 include those

stated in Miranda and, in addition, a warning that the accused "has the right to




Burdett v. State                                                                       Page 6
terminate the interview at any time." TEX. CODE CRIM. PROC. ANN. art. 38.22 §§ 2(a),

3(a)(2); Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

        The State bears the burden of establishing a knowing, intelligent, and voluntary

waiver of one's rights under Miranda and Article 38.22. Miranda, 384 U.S. 436, 86 S. Ct.

1602, 16 L. Ed. 2d 694; Leza v. State, 351 S.W.3d 344, 349, 351 (Tex. Crim. App. 2011);

Joseph v. State, 309 S.W.3d at 24. Waiver must be proven by a preponderance of the

evidence. Miranda, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694; Leza, 351 S.W.3d at 349,

351; Joseph, 309 S.W.3d at 24.      Without a valid waiver, a defendant's statement is

generally inadmissible.     TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3(a); Berghuis v.

Thompkins, 130 S. Ct. 2250, 2260, 176 L. Ed. 2d 1098 (2010); Joseph, 309 S.W.3d at 24. In

determining whether there was a valid waiver of Burdett's rights we must look to the

totality of the circumstances, "including the background, experience, and conduct of the

accused." North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286

(1979); see Leza, 351 S.W.3d at 349, 352-53; Joseph, 309 S.W.3d at 25.

        A waiver can be expressly made or implied by the accused's conduct. Berghuis,

130 S. Ct. at 2261; Joseph, 309 S.W.3d at 24. An implied waiver of one's rights is

established upon a showing that the accused: (1) was given the proper warnings; (2)

understood the warnings and their consequences; and (3) made an uncoerced

statement. Berghuis, 130 S. Ct. at 2260-62; see Moran v. Burbine, 475 U.S. 412, 422-23, 106

S. Ct. 1135, 89 L. Ed. 2d 410 (1986); Leza, 351 S.W.3d at 349. "As a general proposition,


Burdett v. State                                                                     Page 7
the law can presume that an individual who, with a full understanding of his or her

rights, acts in a manner inconsistent with their exercise has made a deliberate choice to

relinquish the protection those rights afford." Berghuis, 130 S. Ct. at 2262.

        While it is true that a waiver cannot be presumed from an accused's silence or

the fact that a confession was made after warnings were provided, "the general rule is

that neither a written nor an oral express waiver is required." Watson v. State, 762

S.W.2d 591, 601 (Tex. Crim. App. 1988) (en banc). Simply making a statement is often

the kind of conduct viewed as indicative of one's intention to waive her rights. See

Berghuis, 130 S. Ct. at 2262; Leza, 351 S.W.3d at 348; Joseph, 309 S.W.3d at 25 n.7. This

relatively low threshold for establishing waiver is because "[t]he main purpose of

Miranda is to ensure that an accused is advised of and understands the right to remain

silent and the right to counsel." Berghuis, 130 S. Ct. at 2261 (emphasis added).

        Shortly after her arrest, Burdett was brought to an interrogation room for

questioning. Prior to any questioning of Burdett an officer read the rights in article

38.22 to Burdett and asked her if she understood those rights. Burdett nodded yes. The

officer handed Burdett a card which listed the rights set forth in article 38.22 and told

her to read them if she was still unsure of her rights. The officer then asked Burdett to

sign her name on the back to verify her understanding of her rights, which she did.

        The first interview with Burdett lasted approximately two and a half hours.

During that time, Burdett did not ask for the interview to stop or to take a break. The


Burdett v. State                                                                   Page 8
officer who conducted the interview testified that had Burdett asked to take a break or

to go to the restroom or for food or drink, those requests would have been honored.

Burdett actively engaged in answering questions and did not appear to be overly tired

even though the interview started at around 4 a.m. The two officers who were in the

room were armed and came and went during the interview.

        Burdett was 40 years old at the time of her arrest and was a supervisor for the

Department of Health and Human Services. Burdett had a high school diploma and

had taken some college courses.       Burdett was also very familiar with computer

technology.

        The second interview with Burdett took place at approximately 4 p.m. the

following day and lasted for less than one hour. The officer read Burdett the warnings

as required by article 38.22, and asked Burdett if she understood her rights, to which

Burdett replied "yes." The officer then asked Burdett to sign the card to demonstrate

that she understood her rights, which Burdett did.

        There were two questions on the back of the cards that were read to Burdett

under the heading "WAIVER" which asked, "Do you understand each of these rights I

have explained to you?" and "Having these rights in mind, do you still wish to talk to us

now?" Below those questions were the lines for Burdett's signature, the time, date, and

officer's signature. Burdett argues that not reading those questions aloud meant that

the officer "arguably failed to comply with both Miranda and Art. 38.22 and he did not


Burdett v. State                                                                   Page 9
give Appellant an opportunity to fully understand her rights, and what waiving those

rights entailed." This argument seems to follow with Burdett's contention that she did

not expressly waive her rights. However, as stated above, an express waiver is not

necessary, although it is preferable. Burdett has not provided any authority for this

proposition and we do not believe that article 38.22 or Miranda require that the

questions on the card be read verbatim to a defendant.

         Viewing the totality of the circumstances and in the light most favorable to the

trial court's findings, we find that the trial court's determination that Burdett waived

her rights pursuant to Miranda and article 38.22 was not erroneous.

Voluntariness

         Burdett then argues that in the event that this Court determines that she

knowingly and intelligently waived her rights, that her waiver was not voluntary

because she was kept in a room that was approximately ten to twelve feet by eight or

nine feet and was questioned by officers that were armed, which was intimidating to

her. Burdett also argues that because the first interview was conducted in the early

hours of the morning that her statements were subjectively involuntary because she was

tired.

         The determination of whether a confession is voluntary is based on an

examination of the totality of the circumstances surrounding its acquisition. Penry v.

State, 903 S.W.2d 715, 744 (Tex. Crim. App.), cert. denied, 516 U.S. 977, 116 S. Ct. 480, 133


Burdett v. State                                                                      Page 10
L. Ed. 2d 408 (1995); Smith v. State, 779 S.W.2d 417, 427 (Tex. Crim. App. 1989). A

statement is involuntary for purposes of federal due process if the record reflects

"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." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); see Oursbourn v.

State, 259 S.W.3d 159, 169-70 (Tex. Crim. App. 2008). "Absent [coercive] police conduct

causally related to the confession, there is simply no basis for concluding that any state

actor has deprived a criminal defendant of due process of law." Alvarado, 912 S.W.2d at

211 (citing Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520, 93 L. Ed. 2d 473

(1986)).

        Although a claim of involuntariness under code of criminal procedure article

38.22 can be predicated on police overreaching, section 6 of the article additionally

encompasses subjective involuntariness claims that do not turn solely on police

overreaching. Oursbourn, 259 S.W.3d at 172. For example, "[a] confession given under

the duress of hallucinations, illness, medications, or even a private threat . . . could be

involuntary under Article 38.21 and the Texas confession statute." Id.

        We have found nothing in the record to show that Burdett's statements made

during her interviews with law enforcement were the product of improper conduct.

Burdett has not provided any authority to support her position that being tired

standing alone is sufficient to render a statement subjectively involuntary. Further,


Burdett v. State                                                                    Page 11
Burdett's claim that she did not understand the warnings given to her because of the

time of the first interview in the early morning is not supported by the record. Burdett

appears subdued on the video of the interview but not overly tired. She was able to

understand the questions posed to her and was able to respond appropriately.

        We find that the trial court's findings that Burdett's statements were voluntary

were not erroneous and the trial court did not err to deny Burdett's motion to suppress

her statements given to law enforcement. We overrule issue three.

                             Ineffective Assistance of Counsel

        In her second issue, Burdett complains that she received ineffective assistance of

counsel because her trial counsel did not call any witnesses during the punishment

phase of her trial.   In order to prevail on a claim of ineffective assistance of counsel,

Burdett must meet the two-pronged test established by the U.S. Supreme Court in

Strickland that (1) counsel's representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). Unless she can prove both prongs, an appellate

court must not find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142.

In order to satisfy the first prong, Burdett must prove by a preponderance of the

evidence that trial counsel's performance fell below an objective standard of

reasonableness under the prevailing professional norms.          Id.   To prove prejudice,


Burdett v. State                                                                     Page 12
Burdett must show that there is a reasonable probability, or a probability sufficient to

undermine confidence in the outcome, that the result of the proceeding would have

been different. Id.

        An appellate court must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of

counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and "cannot adequately reflect the failings of trial counsel" for

an appellate court "to fairly evaluate the merits of such a serious allegation." Id. (quoting

Bone, 77 S.W.3d at 833).

        Burdett did not file a motion for new trial on the basis of ineffective assistance of

counsel and the record is silent as to any potential strategy by her trial counsel as to

why he did not call any witnesses during the punishment phase of the trial. We note

that Burdett's trial strategy during the guilt-innocence phase of the trial was largely

based on an attempt to establish strong manipulation and coercion of the children by

her boyfriend, Jay Morgan, which would explain why the offense occurred.                This

strategy included expert testimony. It is possible that Burdett's trial counsel considered

that evidence, which was relevant for purposes of punishment as well, was unnecessary


Burdett v. State                                                                      Page 13
to repeat in the punishment phase of the trial. Nevertheless, the record is silent as to

any specific strategy and we will not speculate as to trial counsel's strategy. Because

Burdett has not met her burden to establish the first prong in Strickland, we overrule her

second issue.

Conclusion

        Having found no reversible error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed November 6, 2014
Do not publish
[CRPM]




Burdett v. State                                                                   Page 14
