                                      NO. 12-17-00141-CR

                             IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

JUAN MENDEZ,                                          §       APPEAL FROM THE 349TH
APPELLANT

V.                                                    §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                              §       HOUSTON COUNTY, TEXAS

                                     MEMORANDUM OPINION
        Juan Mendez appeals his conviction for possession of a prohibited item in a state
correctional facility. In one issue, Appellant argues that the trial court abused its discretion in
denying his motion to suppress his oral statement. We affirm.


                                              BACKGROUND
        Appellant is a forty-four year old inmate, who is incarcerated at the Allen B. Polunsky
Unit of the Texas Department of Criminal Justice (TDCJ). He has been incarcerated in TDCJ
since he was thirty years old. He previously was incarcerated in TDCJ at age twenty-two.
        On July 17, 2015, guards discovered a cellular telephone and a cellular telephone charger
in Appellant’s cell. Twelve days later, Benjamin Gardner, an investigator with the Office of the
Inspector General for TDCJ, met with Appellant. Gardner recorded their conversation. Gardner
first read Appellant his rights,1 and Appellant acknowledged receiving and understanding these
warnings. Thereafter, Appellant confessed to having the cellular telephone and the charger in his
cell.




        1
        See Miranda v. Arizona 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694 (1966); see also TEX.
CODE CRIM. PROC. ANN. art. 38.22 (West Supp. 2017).
       Appellant was charged by indictment with possession of a prohibited item in a state
correctional facility.2 Prior to trial, Appellant filed a motion to suppress the recorded statement
he made to Gardner. In support of his motion, Appellant argued that the warnings were read to
him too quickly in light of the fact that he had only an eighth grade education, had been a special
education student, and has an IQ of 80. Appellant was the sole testifying witness during the
hearing on his motion. The only evidence he presented to the court in support of his contention
that he did not knowingly and intelligently waive his right against self-incrimination was that he
did not understand the meaning of the word “evidence.”
       The trial court denied Appellant’s motion to suppress. Thereafter, Appellant pleaded
“guilty” as charged, and the trial court sentenced him to imprisonment for four years. This
appeal followed.


                                          MOTION TO SUPPRESS
       In his sole issue, Appellant contends that the trial court abused its discretion by denying
his motion to suppress because he did not knowingly and intelligently waive his right against
self-incrimination.
Standard of Review
       In reviewing claims concerning the admission of statements made as the result of
custodial interrogation, we conduct the bifurcated review articulated in Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). See Pecina v. State, 361 S.W.3d 68, 78–79 (Tex. Crim.
App. 2012).       We measure the propriety of the trial court’s ruling with respect to alleged
violations under the totality of the circumstances, almost wholly deferring to the trial court on
questions of historical fact and credibility, but reviewing de novo all questions of law and mixed
questions of law and fact that do not turn on credibility determinations. See Leza v. State, 351
S.W.3d 344, 349 (Tex. Crim. App. 2011). We afford almost total deference to the trial court’s
determination of historical facts and mixed questions of law and fact that turn on the evaluation
of credibility and demeanor. Guzman, 955 S.W.2d at 89. Questions of law and mixed questions
of law and fact not turning on credibility are reviewed de novo. Id. When the trial court does
not make express findings of fact, we must view the evidence in the light most favorable to the



       2
           See TEX. PENAL CODE ANN. § 38.11(j) (West Supp. 2017).


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trial court’s rulings, assuming that it made implicit findings of fact that are supported by the
record. See Arguellez v. State, 409 S.W.3d 657, 662–63 (Tex. Crim. App. 2013). We will
sustain the trial court’s decision if it is correct on any applicable theory of law. Id.
Governing Law
        Among other safeguards, the United States Supreme Court requires that a criminal
suspect be given the following warnings before any custodial interrogation is conducted:


        He must be warned prior to any questioning that he has the right to remain silent, that anything he
        says can be used against him in a court of law, that he has the right to the presence of an attorney,
        and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he
        so desires. Opportunity to exercise the rights must be afforded to him throughout the
        interrogation. After such warnings have been given, and such opportunity afforded him, the
        individual may knowingly and intelligently waive these rights and agree to answer questions or
        make a statement. But unless and until such warnings and waiver are demonstrated by the
        prosecution at trial, no evidence obtained as a result of interrogation can be used against him.


Miranda, 384 U.S. at 479, 86 S.Ct. at 1630.
        Similarly, under Texas Code of Criminal Procedure, Article 38.21, “[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[.]” TEX. CODE CRIM. PROC. ANN. art. 38.21 (West 2005);
Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim. App. 2008). A defendant may claim that
his statement was not freely and voluntarily made and, thus, may not be used as evidence against
him because, among other theories, the statement was obtained in violation of the Texas
Confession Statute. See Oursbourn, 259 S.W.3d at 169; see also TEX. CODE. CRIM. PROC. ANN.
art. 38.22 §§ 2, 3.
        Pursuant to Article 38.22, section 3, no oral statement made by an accused as a result of
custodial interrogation is admissible as evidence against him in any criminal proceeding unless
(1) an electronic recording is made of the statement; (2) prior to making the statement, but during
the recording, the accused is given warnings from the person to whom the statement is made that
(a) 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, (b) any statement he makes may be used as evidence
against him in court, (c) he has the right to have a lawyer present to advise him prior to and
during any questioning, (d) 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 (e) he has the right to terminate




                                                         3
the interview at any time; and (3) the accused knowingly, intelligently, and voluntarily waives
any rights set out in the warning. See TEX. CODE CRIM. PROC. ANN. art. 38.22 § 2(a), 3(a).
       The question is not whether Appellant explicitly waived his right against self-
incrimination, but whether he did so, knowingly, intelligently, and voluntarily. See Joseph v.
State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010). This inquiry has two distinct dimensions.
Moran v. Burbine, 475 U.S. 423, 421, 106 S. Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986). First, the
relinquishment of the right must have been voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception. Id. Second, the waiver
must have been made with a full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it. Id. Only if the “totality of the circumstances
surrounding the interrogation” reveal both an uncoerced choice and the requisite level of
comprehension may a court properly conclude that the Miranda rights have been waived. Id.
The question of waiver must be determined on the particular facts and circumstances
surrounding that case, including the background, experience and conduct of the accused. N.
Carolina v. Butler, 441 U.S. 369, 374–75, 99 S. Ct. 1755, 1758, 60 L. Ed. 2d 286 (1979). The
State has the burden of showing that a defendant knowingly, intelligently, and voluntarily
waived his rights against self-incrimination. See Joseph, 309 S.W.3d at 24. Whenever the State
bears the burden of proof in a motion to suppress a statement that the defendant claims was
obtained in violation of our Miranda doctrine, the State need prove waiver only by a
preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522,
93 L. Ed. 2d 473, (1986).
Discussion
       In the instant case, there is no dispute that Appellant waived his rights under Miranda
and Article 38.22 both verbally and in writing. However, he contends that he did not know what
he was doing when he waived these rights before confessing his guilt to Gardner. Specifically,
he argues that the warnings were read to him too quickly in light of the fact that he had only an
eighth grade education, had been a special education student, and has an IQ of 80.
       The evidence at the hearing on Appellant’s motion to suppress demonstrated that
Appellant is forty-four years old and first was incarcerated in TDCJ when he was twenty-two
years old. The evidence further showed that he had been incarcerated in TDCJ on two separate
occasions and, currently, has been incarcerated for the past fourteen years. The only relevant



                                                4
evidence Appellant offered in support of his lack of understanding of the warnings given was
that he did not understand the meaning of the word “evidence.” But given the evidence of
Appellant’s extensive background and experience in the criminal justice system, his contention
strains credulity.
         We emphasize the trial judge is the sole judge of the credibility of the witnesses and the
weight to be given to their testimony and can believe or disbelieve any part of a witness’s
testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). And our standard of
review requires nearly total deference to factual determinations that depend on credibility, such
as the truth of Appellant’s testimony. See Juarez v. State, 409 S.W.3d 156, 166 (Tex. App.–
Houston [1st Dist.] 2013, pet. ref’d.). Therefore, based on our review of the totality of the
circumstances, we conclude that the State met its burden in demonstrating that Appellant
knowingly, intelligently, and voluntarily waived his rights against self-incrimination.        See
Joseph, 309 S.W.3d at 24. Appellant’s sole issue is overruled.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.


                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered January 3, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           JANUARY 3, 2018


                                         NO. 12-17-00141-CR


                                        JUAN MENDEZ,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 349th District Court
                         of Houston County, Texas (Tr.Ct.No. 16CR-153)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
