                                MEMORANDUM OPINION
                                        No. 04-10-00390-CR

                                             Rudy PEREZ,
                                               Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                    From the 437th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008CR1099B
                          Honorable Lori I. Valenzuela, Judge Presiding

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice
                 Marialyn Barnard, Justice

Delivered and Filed: August 10, 2011

AFFIRMED

           Rudy Perez was convicted of murder and sentenced to forty years in prison. Perez

appeals, complaining the trial court erred in denying his motion to suppress his video-recorded

statement because the State failed to prove he knowingly waived his rights. We affirm the trial

court’s judgment.
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                                         BACKGROUND

       The victim, George Estrada, died as a result of blunt force trauma and sharp force injuries

he received in a fight at a party at Rudy Perez’s apartment. Perez was interviewed the day after

the murder and denied any involvement. After other witnesses were interviewed, San Antonio

Police Department Detective Jesse Salame came to believe that Perez had been among the group

of people who attacked Estrada. Several witnesses stated they had seen Perez repeatedly kicking

Estrada while another man was stabbing Estrada. Detective Salame obtained a warrant for

Perez’s arrest. Soon thereafter, Detective Salame was notified that Perez had been arrested in

Corpus Christi on local warrants. Detective Salame drove to Corpus Christi and interviewed

Perez at the Corpus Christi police department. The interview was recorded orally and visually.

Perez filed a motion to suppress the statements he made during the interview.

       Detective Salame testified at the pretrial hearing on the motion to suppress that the

interview began at approximately 4:30 a.m., and lasted about one and one-half hours. According

to the detective, Perez was alert and cooperative throughout the interview. Detective Salame

testified he first read Perez his Miranda rights, and that Perez understood his rights and waived

them. The detective stated he knew Perez understood his rights because he was nodding his head

in agreement while the rights were being read to him and then answered “yes,” that he

understood. Detective Salame believed that Perez had waived his rights because after hearing

and understanding his rights, Perez did not remain silent. The detective testified that Perez

understood they were there to discuss the murder charge, and that he answered questions and was

cooperative. Detective Salame testified that Perez did not ask any questions about his rights,

never stopped the interview, and did not ask for an attorney. The detective stated he did not make

any promises to Perez or use any deception or coercion.



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       The recording of the interview was admitted into evidence at the hearing and reviewed by

the trial court. The recording begins at 4:48 a.m., and shows Perez in a small room. He is not

handcuffed or restrained in any way and has a soda to drink. Detective Salame entered the room

at 4:50 a.m. and introduced himself as a homicide detective with the San Antonio Police

Department. The detective immediately read Perez his Miranda rights from a card. Perez

periodically nodded his head affirmatively as his rights were being read. At 4:51 a.m., Detective

Salame asked Perez, “Do you understand these rights?” Perez responded by asking if he had

been arrested on the Corpus Christi warrants, and Detective Salame answered that he had been.

Immediately thereafter, at 4:51:16, Perez said, “Yes, sir.” Detective Salame ascertained that

Perez understood he was there to discuss the Estrada murder. The interview continued until 6:10

a.m.

       At the conclusion of the hearing on the motion to suppress, the trial court denied the

motion and made the following findings and conclusions:

       [A]lthough the defendant never explicitly says, I’m waiving my rights nor does he
       sign anything indicating that he has waived those rights, it is also my opinion that
       that specific written expression or specific explicit statement indicating that he
       was going to waive them is unnecessary. That case law does, in fact, support that
       a waiver of rights can be done so without those two things -- one of those two
       things.

              And in this case, we do have Mr. Perez, at least, acknowledging with his
       response, yes, that he understood the rights aside from the fact that he is nodding
       his head and asking questions of the defendant at the time he also when asked by
       Detective Salame, do you understand, and he says, yes, and then he continues.
       And I think that case law does support you have to look at the totality of the
       circumstances and whether or not there was voluntary. [sic]

               And it is the Court’s opinion that his continued discussion with Detective
       Salame after he expresses, yes, to whether or not he understands and his
       deliberate choice to continue talking and offering information to Detective Salame
       leads to his voluntariness and his willingness and deliberate choice to continue
       that interview.



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              As well as the fact that he does acknowledge understanding those rights, I
       believe he knowingly continued as well and it is not apparent to the Court that
       there was any coercion on the part of Detective Salame to have Mr. Perez
       continue the interview. And, in fact, Mr. Perez remains there for quite some time
       and continues to talk to both the detectives when Detective Salame remains and
       Detective, I believe, Willingham enters into the room.

              So based on all of that, and the fact that, again, I believe he’s there, he
       voluntarily continues to speak, and that he knew and understood his rights, I am
       going to allow DVD No. 2 also to come into evidence. I will deny the motion to
       suppress on DVD No. 2 as well.

A redacted version of the recording was admitted at trial.

       On appeal, Perez argues his oral statement to police was admitted in violation of his

rights under the Fifth and Fourteenth Amendments to the United States Constitution and section

3(a)(2) of article 38.22 of the Texas Code of Criminal Procedure because the State did not prove

he knowingly waived his right to remain silent.

                                      LAW AND DISCUSSION

       We review the trial court’s ruling on a motion to suppress for abuse of discretion. Swain

v. State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005), cert. denied, 549 U.S. 862 (2006). We

give “almost total deference” to the trial court’s findings of historical fact that are supported by

the record and to mixed questions of law and fact that turn on an evaluation of credibility and

demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo the

trial court’s determination of the law and its application of law to facts that do not turn upon an

evaluation of credibility and demeanor. Id. We will uphold the ruling if it is supported by the

record and is correct under any theory of law applicable to the case. State v. Ross, 32 S.W.3d

853, 855–56 (Tex. Crim. App. 2000).

       The State must prove by a preponderance of the evidence that Perez had knowingly and

voluntarily waived his Miranda rights when he made the statement. Berghuis v. Thompkins, 130



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S.Ct. 2250, 2260 (2010); Joseph v. State, 309 S.W.3d 20, 24 (Tex. Crim. App. 2010); TEX. CODE

CRIM. PROC. ANN. art. 38.22, § 3(a)(2) (West 2005). “The waiver inquiry ‘has two distinct

dimensions’: waiver must be ‘voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception,’ and ‘made with a full

awareness of both the nature of the right being abandoned and the consequences of the decision

to abandon it.’” Berghuis, 130 S.Ct. at 2260 (quoting Moran v. Burbine, 475 U.S. 412, 421

(1986)).

       Perez first asserts the State failed to prove he understood his rights. The trial court found

otherwise on the basis of Detective Salame’s testimony, Perez’s demeanor as shown on the

recording both during and after the reading of his rights, and Perez’s affirmative response to the

detective’s asking whether he understood his rights. The court’s finding is supported by the

record, and we therefore defer to it. See Guzman, 955 S.W.2d at 89.

       Perez next contends that the trial court erred by implying a waiver of his rights from

“nothing more than mere acquiescence . . . to the continued questioning.” We disagree. Miranda

“does not impose a formalistic waiver procedure that a suspect must follow to relinquish those

rights.” Berghuis, 130 S. Ct. at 2262. “As a general proposition, 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.” Id. A

waiver of rights under article 38.22 may also be inferred from the suspect’s words and conduct.

Joseph, 309 S.W.3d at 24–25. In the absence of an explicit waiver, we review the totality of the

circumstances to determine if there was an implied waiver. Joseph, 309 S.W.3d at 25 n.7.

       Where the State shows the Miranda warnings were given to the accused and understood

by the accused, the “accused’s uncoerced statement establishes an implied waiver of the right to



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remain silent.” Berghuis, 130 S.Ct. at 2262. Here, the recording reveals there was no intimidation

or coercion, and Perez does not contend there was any coercive or improper conduct on the part

of the police. Perez did not ask any questions about his rights, did not try to stop the interview,

and did not ask for an attorney. Perez understood the purpose of the interview and willingly

participated in it.

        We hold the totality of the circumstances surrounding the interrogation shows Perez

knowingly, intelligently, and voluntarily waived his rights under Miranda and article 38.22, and

the trial court did not abuse its discretion in denying Perez’s motion to suppress. We therefore

affirm the trial court’s judgment.



                                                 Steven C. Hilbig, Justice


Do not publish




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