                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-18-00039-CR


                            RONALD MCNEIL, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 85th District Court
                                   Brazos County, Texas
           Trial Court No. 15-03067-CRF-85, Honorable Kyle Hawthorne, Presiding

                                    October 22, 2018

                             MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

       Ronald McNeil, appellant, appeals his murder conviction. The conviction arose

from a shooting at a party. Appellant admitted to the police after arrest and while in

custody that he accidentally fired his Glock 40 several times at the locale while purportedly

attempting to protect his cousin. Yet, the record also shows that he may have been

intoxicated when he made these admissions and granted officers consent to search his

house. The sole issue before us concerns the trial court’s decision to deny his motion to

suppress. Appellant believes that the decision was an abuse of discretion since he was
too drunk to have “the capacity to effectively waive his rights under the fifth amendment

of the United States Constitution, Article I, sections 10 and 19 of the Texas Constitution

and article 38.22 of the Code of Criminal Procedure.” We affirm.1

        The decision of the trial court is reviewed under the standard of abused discretion.

Bernard v. State, Nos. 10-16-00215-CR, 10-16-00216-CR, 2017 Tex. App. LEXIS 9753,

at *2 (Tex. App.—Waco Oct. 18, 2017, pet. ref’d) (mem. op., not designated for

publication). Under it, we recognize that the trial judge is the sole trier of fact and the

credibility of witnesses. Lerma v. State, 543 S.W.3d 184, 189–90 (Tex. Crim. App. 2018).

Therefore, we afford almost complete deference to its determinations of historical facts.

Id. This deference includes deference to any explicit factual findings it makes, as long as

they are supported by the record. State v. Castleberry, 332 S.W.3d 460, 465–66 (Tex.

Crim. App. 2011). Finally, the evidence is viewed in a light most favorable to the ruling.

See id.

        We first address whether appellant preserved his complaint for review. The State

argues that he did not because he failed to “timely object to the admission of the

ammunition at trial.” The ammunition apparently was found in appellant’s house after he

executed written consent to search the abode.                   Whether appellant knowingly and

voluntarily agreed to speak with the officers after being mirandized was the subject of a

pretrial hearing held upon his motion to suppress. Furthermore, the court ruled upon that

motion. Such was enough to preserve his complaint for review. See Garza v. State, 126

S.W.3d 79, 84 (Tex. Crim. App. 2004) (stating that when a trial court overrules a pretrial



        1 Because this appeal was transferred from the Tenth Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.

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motion to suppress, the defendant need not again object to the admission of the same

evidence at trial to preserve error); Greer v. State, No. 07-10-00500-CR, 2013 Tex. App.

LEXIS 938, at *3–4 (Tex. App.—Amarillo Jan. 31, 2013, pet. ref’d) (mem. op., not

designated for publication) (stating the same).

       As for the substance of appellant’s issues, we turn to the record. Again, the trial

court held an evidentiary hearing to address the very allegations before us.            After

considering the evidence presented by the litigants, it found “that [appellant’s] statements

were voluntary, a product of free and deliberate choice rather than any type of intimidation

or coercion or any type of deception or intoxication and that he was – appeared to me to

be aware of the nature of the rights being given and what he was giving up.” So too did

it explain the factual basis for its ruling:

       [appellant] recall[ing] specific facts, correcting officers about addresses,
       signing a consent form, talking about numbers of rounds and weapons and
       locations of weapons and the fact whether his wife was there or not when
       he went back over and that she was asleep. There was a lot of specific
       details that Mr. McNeil was recalling during his conversation that didn’t give
       me – or didn’t look to me like gave an appearance[] of being – having lost
       the normal use of his mental or physical faculties much like we see in
       driving-while-intoxicated cases much less any type of extreme intoxication.

       No one disputes that appellant was in custody when he uttered inculpatory

statements, which were captured on an audio recording. Nor does anyone deny that 1)

the interrogating officer mirandized appellant before any questioning began; 2) appellant

was interrogated at least thrice at the scene of his arrest; 3) appellant fell asleep in the

squad car between the first and second interviews; 4) appellant claimed, before the

second interrogation began, he did not remember being previously mirandized; 5) the

detective conducting the second interview mirandized appellant again before questioning

him; 6) appellant confirmed to the detective that he understood each Miranda warning


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and admonishment and, nonetheless, agreed to speak to the detective; 7) appellant

smelled of alcohol and sounded sleepy or “lethargic” when speaking to the detective; and

8) after being told of his right to refuse, appellant signed a written consent form allowing

the officers to search his house. During these interviews, appellant was able to describe,

in detail, the events that resulted in the shooting, including his reason for obtaining a

handgun from his house and returning to the festivities. Allegedly, party attendees

became aggressive towards his cousin and begun uttering racial slurs. So too did he

correct the interrogating detective at least four times during their various discussions at

the scene. And, though the interrogations were temporarily recessed, appellant never

objected to speaking with the detective once the questioning resumed. One listening to

the tenor of his voice also could find it less lethargic and more coherent as the ongoing

interrogations continued.

       That one in the custody of officers must normally knowingly and voluntarily agree

to waive both his Miranda rights and those rights itemized in article 38.22, § 3 of the Texas

Code of Criminal Procedure before his inculpatory statements may be admitted into

evidence is beyond question. See Oursbourn v. State, 259 S.W.3d 159, 169 (Tex. Crim.

App. 2008) (noting that a statement of the accused may be used in evidence against him

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

persuasion); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(2) (West 2018) (stating that

an “oral or sign language statement of an accused made as a result of 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 warning in

Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily



                                             4
waives any rights set out in the warning”). While intoxication is a factor to consider in

assessing whether the accused so waived those rights, it alone is usually insufficient to

render a statement inadmissible. See Oursbourn, 259 S.W.3d at 173.

       It may be that appellant was intoxicated when the officers sought to question him.

It may be that he was sleepy, too. Nevertheless, the record contains evidence supporting

the reasons uttered by the trial court in ruling that appellant legitimately waived his

Miranda and article 38.22, § 3 rights before speaking with law enforcement officials. That

he claimed at the hearing to have suffered from a blackout and was unable to remember

much of anything is belied by both his recorded statements at the time of his arrest and

aspects of his hearing testimony. In any event, the trial court had the prerogative to

decide whether to believe him, and it did not. Authority prohibits us from interfering with

that credibility choice.

       In sum, the finding of the trial court that appellant knowingly and voluntarily opted

to speak with the officers after being mirandized twice is not an abuse of discretion. Thus,

we overrule appellant’s issues and affirm the judgment of conviction.




                                                 Brian Quinn
                                                 Chief Justice




       Do not publish.




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