                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                           No. 04-14-00618-CR

                                            Thomas LITTLE,
                                               Appellant

                                                   v.

                                           The STATE of Texas,
                                                 Appellee

                    From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 14-0698-CR-C
                             The Honorable William Old, Judge Presiding

Opinion by:       Jason Pulliam, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Jason Pulliam, Justice

Delivered and Filed: October 7, 2015

AFFIRMED

           Appellant Thomas Little was convicted by a jury of burglary of a habitation with intent to

commit kidnapping and burglary of a habitation with intent to commit theft. On appeal, Little

contends: (1) the trial court erred by denying his request for the inclusion of a jury-charge

instruction pertaining to the voluntariness of his statement, pursuant to Code of Criminal Procedure

article 38.22, § 6; and (2) he was egregiously harmed by the trial court’s failure to include a jury-

charge instruction pertaining to the law on voluntariness of his statement, pursuant to Code of

Criminal Procedure article 38.22, § 7. We affirm the trial court’s judgment.
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                                                  BACKGROUND

         In December 2011, M.G. 1 was appointed the sole managing conservator of her six-year old

grandson, S.W. On June 21, 2012, three men broke into M.G.’s house, restrained M.G. and S.W.,

and began taking her valuables. During the invasion, a woman and another man whose identities

were disguised, entered the house. The woman took S.W. and left the house. During the ensuing

investigation, M.G. expressed her suspicion that S.W.’s mother, M.W., was the woman who took

S.W.

         After a tip led to the discovery of M.W. and S.W., FBI Special Agent Michael Carlisle

arrested and interrogated M.W. 2 M.W. implicated Little as an accomplice. FBI Agent Carlisle

subsequently arrested Little and transported him to the local police station. Before questioning

Little, FBI Agent Carlisle read the Miranda 3 warnings to him, and Little acknowledged and waived

the warnings. FBI Agent Carlisle did not, however, advise Little of Little’s right to terminate the

interview at any time. 4 Also present during the interview were FBI Special Agent Marty Martinez,

Sergeant Keith Osborn of the Selma Police Department, and Little’s attorney.

         During the interview, Little maintained he did not have any knowledge of the home

invasion, insisting the other men planned to break into M.G.’s home and kidnap S.W. without his

involvement. Near the end of the interview, however, Little admitted to changing “the plan” and

confessed to sending M.W. to M.G.’s house to prevent S.W. from being traumatized. Little also

admitted giving M.W. the black cloth to conceal her identity.




1
  To protect the identity of minor children, we refer to the children and the children’s parents by their initials. TEX.
R. APP. P. 9.8(b)(2).
2
  The FBI joined the investigation because of S.W.’s abduction.
3
  Miranda v. Arizona, 384 U.S. 436 (1966).
4
  Although this warning is required by article 38.22, § 2(a)(5) of the Texas Code of Criminal Procedure, it is not
required under the holding in Miranda. See Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

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       At trial, the State moved to admit into evidence the video recording of Little’s interview.

Little objected to its admissibility, arguing the statement was not admissible under article 38.22

because the recording did not contain the warning of his right to terminate the interview at any

time. The State responded the statement was admissible under article 38.22, § 8 which provides

that statements obtained by federal law enforcement officers in compliance with federal law are

admissible. The trial court overruled Little’s objection and admitted the recording into evidence.

The jury convicted Little, and Little appeals.

                                      STANDARD OF REVIEW

       Appellate review of alleged jury charge error involves a two-step analysis. Ngo v. State,

175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). First, the appellate court must determine

whether the jury charge contains the alleged error. Wooten v. State, 400 S.W.3d 601, 606 (Tex.

Crim. App. 2013); Ngo, 175 S.W.3d at 743-44. If there is error in the charge, the appellate court

must then determine whether sufficient harm resulted so as to require a reversal of conviction.

Wooten, 400 S.W.3d at 606. The degree of harm necessary for conviction reversal depends upon

whether the error was properly preserved by objection. Ngo, 175 S.W.3d at 743. Error properly

preserved by objection will require reversal provided the defendant suffered “some harm.” Reeves

v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013); Ngo, 175 S.W.3d at 743. On the other

hand, error not properly preserved by objection must be “fundamental,” and reversal is required

only if the defendant suffered egregious harm. Reeves, 420 S.W.3d at 816; Ngo, 175 S.W.3d at

743-44. In either situation, the actual degree of harm is evaluated by taking into account “(1) the

jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the evidence, and (4) other

relevant factors present in the record.” Reeves, 420 S.W.3d at 816.




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                                              ANALYSIS

                                   Article 38.22, § 6 Instruction

       In his first issue, Little contends the trial court erred by denying his request for the inclusion

of a jury charge instruction pursuant to article 38.22, § 6 (voluntariness instruction). Little

contends shortly after he admitted to changing “the plan” during the interview, he “advised that he

needed to have his legs elevated due to sores on both legs, which raised an issue concerning the

voluntariness of [his] statement, or whether this admission was made because he was in pain from

leg sores.”

       The trial judge has an absolute sua sponte duty to prepare a jury charge that accurately

explains the law applicable to the case. Oursbourn v. State, 259 S.W.3d 159, 179 (Tex. Crim.

App. 2008); see TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). When “a ‘question’ is

raised and litigated as to the ‘general’ voluntariness of a statement of an accused,” the trial court

is required to explain article 38.22, § 6 as “law applicable to the case.” Oursbourn, 259 S.W.3d at

180; see TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6 (West Supp. 2014). Such a “question” is

raised when a party notifies the trial court of an issue concerning the voluntariness of a defendant’s

statement or the trial court raises such an issue on its own. Oursbourn, 259 S.W.3d at 175. As the

Texas Court of Criminal Appeals explained:

       This is the sequence of events that seems to be contemplated by Section 6: (1) a
       party notifies the trial judge that there is an issue about the voluntariness of the
       confession (or the trial judge raises the issue on his own); (2) the trial judge holds
       a hearing outside the presence of the jury; (3) the trial judge decides whether the
       confession was voluntary; (4) if the trial judge decides that the confession was
       voluntary, it will be admitted, and a party may offer evidence before the jury
       suggesting that the confession was not in fact voluntary; (5) if such evidence is
       offered before the jury, the trial judge shall give the jury a voluntariness instruction.




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Id. “It is only after the trial judge is notified of the voluntariness issue (or raises it on his own)

that [the] chain of other requirements comes into play, culminating in the defendant’s right to a

jury instruction.” Id.

       Here, the question of whether the pain from the sores on Little’s legs rendered his

confession involuntary was never raised because Little never notified the trial court of the issue.

See id. Because the question was never raised, the sequence of events contemplated by section 6,

culminating in the right to a jury instruction, was never triggered. Therefore, Little was not entitled

to an article 38.22, § 6 jury instruction, and the trial court did not err in denying Little’s request

for the inclusion of such an instruction in the jury charge.

       We overrule Little’s first issue on appeal.

                                   Article 38.22, § 7 Instruction

       In his second issue, Little contends the trial court erred by failing to include an article

38.22, § 7 voluntariness instruction in the jury charge because he was entitled to have the jury

determine whether his statement was voluntary based on FBI Agent Carlisle’s failure to warn him

of his right to terminate the interview in accordance with article 38.22, § 2(a)(5). Acknowledging

that he did not object to the jury charge on this basis, Little concedes, if the trial court erred,

reversal is only required if he suffered egregious harm. We first consider whether the charge

contained error.

       When a defendant makes a statement during custodial interrogation, the defendant is

“entitled—when the issue is raised by the evidence—to have the jury decide whether he was

adequately warned of his rights and knowingly and intelligently waived these rights.” Oursbourn,

259 S.W.3d at 176. In the context of this case, the phrase “the issue” refers to FBI Agent Carlisle’s

compliance with the statutory warning set out in article 38.22, § 2(a)(5), which would have

informed Little of his right to terminate the interview at any time. See id.; TEX. CODE CRIM. PROC.
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ANN. art. 38.22, § 2 & 3 (West Supp. 2014). To entitle a defendant to an article 38.22, § 7

instruction, however, “the issue” must be “raised by the evidence.” Oursbourn, 259 S.W.3d at

176. For an issue to be “raised by the evidence” as indicated in article 38.22, § 7, “there must be

a genuine factual dispute.” Id. “This factual dispute can be raised only by affirmative evidence,

not by mere cross-examination questions or argument.” Id. at 177. If there is no disputed factual

issue for the jury to consider with regard to compliance with the warnings requirements,

determination of the adequacy of the warnings under the law is conducted by the trial court alone,

and no jury instruction is necessary. See id. at 177-78; see also Robinson v. State, 377 S.W.3d

712, 719 (Tex. Crim. App. 2012) (“Where the issue raised by the evidence at trial does not involve

controverted historical facts, but only the proper application of the law to undisputed facts, that

issue is properly left to the determination of the trial court.”).

        In the present case, the evidence did not raise an issue which would entitle Little to a jury-

charge instruction on the failure to warn him of his right to terminate the interview pursuant to

article 38.22, § 7. There is no genuine factual dispute with regard to whether FBI Agent Carlisle

administered the warning required in article 38.22, § 2(a)(5). The parties agree FBI Agent Carlisle

read Little the Miranda warnings outlined in article 38.22, § 2(a)(1)-(4), but did not advise Little

of his additional right to terminate the interview at any time required by § 2(a)(5). Because there

is no genuine factual dispute, there was no fact issue for the jury to decide. Thus, the question of

whether the warnings read to Little complied with article 38.22 was a question of law for the trial

court to decide.     See Robinson, 377 S.W.3d at 719; Oursbourn, 259 S.W.3d at 177-78.

Accordingly, the trial court did not err by not including an article 38.22, § 7 instruction in the jury

charge. See Oursbourn, 259 S.W.3d at 176. Because the jury charge did not contain error, we do

not address Little’s egregious harm argument.



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       In challenging the voluntariness of his statement under article 38.22, § 7, Little alludes to

the trial court’s ruling on the admissibility of his statement under article 38.22, § 8. Section 8

provides that notwithstanding any other provision of article 38.22, a defendant’s statement is

admissible in a criminal proceeding if the statement was obtained by a federal law enforcement

officer in this state or any other state in compliance with federal law. TEX. CODE CRIM. PROC.

ANN. art. 38.22, § 8 (West Supp. 2014). Little contends article 38.22, § 8 did not apply due to the

presence of Sergeant Osborn, a Texas officer, during the interview. However, the only issue Little

raised in his brief relates to the instructions given in the jury charge. Little does not present an

issue on appeal challenging the trial court’s legal determination that his statement was admissible

under article 38.22, § 8 despite Sergeant Osborn’s presence. Because Little does not properly raise

an issue challenging the trial court’s admissibility ruling with regard to this limited issue, we do

not address whether Sergeant Osborn’s presence affected the admissibility of Little’s statement

under article 38.22, § 8.

       The trial court’s application of the law to the undisputed facts in this case did not entitle

Little to a jury instruction under article 38.22, § 7. Accordingly, we overrule Little’s second issue.

                                           CONCLUSION

       The trial court’s judgment is affirmed.


                                                   Jason Pulliam, Justice

DO NOT PUBLISH




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