Opinion filed April 2, 2009




                                             In The


   Eleventh Court of Appeals
                                           __________

                                     No. 11-07-00187-CR
                                          ________

                   JONATHAN AARON HALLMARK, Appellant

                                                V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 90th District Court

                                     Stephens County, Texas

                                  Trial Court Cause No. 31,034


                                          OPINION
       Jonathan Aaron Hallmark appeals his conviction by a jury of the offense of murder. The jury
assessed his punishment at life imprisonment in the Texas Department of Criminal Justice,
Institutional Division, and a fine of $10,000. Hallmark contends in two issues that the trial court
abused its discretion in denying his motion to suppress an oral statement made by him after he had
previously invoked his right to remain silent because he never knowingly waived that right and that
the trial court erred in allowing the mother of a child who witnessed the crime to testify at the
punishment stage of the trial about the impact of the crime upon her child. We affirm.
       Hallmark urges that the trial court abused its discretion in denying his motion to suppress an
oral statement made by him when he had previously invoked his right to remain silent and had never
thereafter knowingly waived that right. In a hearing to determine whether to suppress evidence, the
trial court is the sole judge of the weight of the testimony and the credibility of the witnesses.
Rayford v. State, 125 S.W.3d 521, 528 (Tex. Crim. App. 2003). In reviewing a trial court ruling on
a motion to suppress, we afford almost total deference to a trial court’s determination of historical
facts that the record supports, especially when the trial court’s fact findings are based on an
evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997).
         George (Billy) Wade testified that he is the chief deputy of the Stephens County Sheriff’s
Department. He indicated that he was called to the scene of a shooting on September 10, 2006, at
about 6:00 p.m. He said that, while he was en route to the scene of the shooting, he was told that the
suspect in the shooting had gone to a residence at 309 South Newton Street. After finding Hallmark
at that location, Deputy Wade read him his Miranda1 rights. Deputy Wade acknowledged that
Hallmark asked him if he could remain silent and that he told Hallmark he could if he wanted to do
so. He indicated that Hallmark told him that he did not think it would help and that he did not think
anything could help him now.
         Calvin Cox testified that he is a Texas Ranger employed by the Texas Department of Public
Safety. He indicated that he went to the Stephens County Sheriff’s Department at approximately
10:00 p.m. to talk to Hallmark. He stated that, when he saw that Hallmark had blood on his hands,
he asked Hallmark if he was okay or if he needed medical help. He said Hallmark told him that he
was sure he was okay and did not need medical help. He related that, when he asked Hallmark if he
wished to speak with him, Hallmark replied that he did.
         Ranger Cox testified that, when he brought Hallmark into an office for the interview, he
advised Hallmark of his Miranda rights and that Hallmark said he understood those rights.
Ranger Cox acknowledged that he did not read the portion of a Miranda card that was entitled
“Waiver of Rights” to Hallmark. He indicated that he did not know whether Hallmark had read the
section entitled “Waiver of Rights” before signing the card. He acknowledged telling Hallmark,
“You need to sign right here.” He also acknowledged that he knew Hallmark did not want to speak
to Deputy Wade. Ranger Cox insisted that, after Hallmark indicated he understood his rights,
Hallmark never stopped, hesitated, told him that he did not want to talk, or “anything of that sort.”


         1
             Miranda v. Arizona, 384 U.S. 436 (1966).

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          The trial court made numerous findings of fact and a few conclusions of law, which included
a finding that Hallmark’s oral statement was given voluntarily, knowingly, and intelligently. The
trial court denied Hallmark’s motion to suppress his statement to Ranger Cox. Subsequently, an
audiotape of the interview with Ranger Cox was admitted into evidence.
          The admissibility of statements obtained after the person in custody has decided to remain
silent depends, under Miranda, on whether his or her right to stop questioning was scrupulously
honored. Michigan v. Mosley, 423 U.S. 96, 103 (1975). In making this determination, we consider
(1) whether the suspect was informed of his or her rights prior to the initial questioning, (2) whether
the suspect was informed of the right to remain silent prior to the subsequent questioning, (3) the
length of time between the initial questioning and the subsequent questioning, (4) whether the
subsequent questioning focused on a different crime, and (5) whether police honored the suspect’s
initial invocation of the right to remain silent. Maestas v. State, 987 S.W.2d 59, 62 (Tex. Crim. App.
1999). Where, as here, the resolution of the issue as to whether Hallmark’s right to remain silent was
scrupulously honored does not depend on an evaluation of credibility and demeanor, we review the
trial court’s decision de novo. Maestas, 987 S.W.2d at 62.
          Hallmark was informed of his right to remain silent prior to his initial questioning and prior
to his subsequent questioning. The amount of time between the initial questioning by Deputy Wade
and the subsequent questioning by Ranger Cox was approximately four hours. The subsequent
questioning focused on the same crime. Deputy Wade honored Hallmark’s initial desire to remain
silent.
          After performing our de novo review, we find that Hallmark’s right to remain silent was
scrupulously honored. Consequently, the trial court did not abuse its discretion when, by denying
Hallmark’s motion to suppress, it impliedly found that his right to remain silent was scrupulously
honored.
           In urging that the trial court abused its discretion by denying his motion to suppress,
Hallmark primarily relies upon the cases of Watson v. State, 762 S.W.2d 591 (Tex. Crim. App.
1988); Ochoa v. State, 573 S.W.2d 796 (Tex. Crim. App. 1978); Faulder v. State, 611 S.W.2d 630
(Tex. Crim. App. 1979); and Castillo v. State, 616 S.W.2d 620, 621 (Tex. Crim. App. 1981). We
find all of these cases to be distinguishable.
          In Watson, the defendant, after being advised of his rights, was interrogated by two officers
on four separate occasions. Watson, 762 S.W.2d at 593. After two interrogations during which

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Watson answered no questions, the officers initiated a third interrogation without Watson indicating
he wished to talk to them. Id. at 593-94. In Watson, the interrogation did not cease immediately
after Watson made clear that he wished to remain silent. Id. at 600. In the case at bar, Hallmark’s
invocation of his right to remain silent was honored. Before proceeding to ask Hallmark any further
questions, Ranger Cox first asked him if he wanted to talk to him. The officers in Watson initiated
interview after interview without ascertaining that Watson wanted to talk to them, after he had made
clear, by not answering any questions, that he wished to remain silent.
          In Ochoa, the court held that the trial court abused its discretion in admitting Ochoa’s
confession into evidence because the interrogation did not cease after Ochoa in some way indicated
to the interrogating officer that he wanted to exercise his right to counsel. Ochoa, 573 S.W.2d at
800-01. This case has no applicability to the case at bar because Hallmark never in any way sought
to invoke his right to counsel regarding Ranger Cox’s interview.
          In Faulder, the court found that Faulder’s statement to officers should have been excluded
because his right to remain silent was not scrupulously honored when officers did not stop their
interrogation after he invoked his right to remain silent. Faulder, 611 S.W.2d at 634-35. As
previously noted, in the case at bar, once Hallmark invoked his right to remain silent, interrogation
ceased until several hours later, when another officer asked him if he wanted to talk and reminded
him of his rights.
          In Castillo, the court held that Castillo’s statement was inadmissible where he had invoked
his right to counsel before a magistrate and the State failed to show that he waived his right to
counsel shortly after having made the request to the magistrate for the appointment of counsel.
Castillo, 616 S.W.2d at 623. This case is also inapplicable to the case at bar because, as we have
previously noted, Hallmark never invoked his right to counsel. We overrule issue one.
          Hallmark urges in issue two that the trial court erred in allowing the mother of a child who
witnessed the crime to testify about the impact of the crime upon her child. Hallmark acknowledges
that the child’s mother testified at the punishment phase of the trial that the child, who had
apparently witnessed the shooting that killed the victim, was scared of all noises, had nightmares,
would not sleep in her own bed, was scared to go out by herself, and had counseling through her
school.
          During the punishment phase of the trial, evidence may be offered by the State and the
defendant as to any matter the court deems relevant to sentencing. TEX . CODE CRIM . PROC. ANN .

                                                   4
art. 37.07, § 3(a)(1) (Vernon Supp. 2008). We hold that evidence of harm to a third person
reasonably resulting from appellant’s actions in committing the offense constitutes evidence relevant
to sentencing. Accordingly, we hold that the trial court did not abuse its discretion in admitting the
evidence.
       Hallmark contends that the introduction of victim impact evidence with regard to a victim
not named in the indictment has a risk of prejudice that is unacceptably high and that it is not
authorized by TEX . CODE CRIM . PROC. ANN . art. 56.03(e) (Vernon 2006), which deals with the
admissibility of victim impact evidence. He relies upon the cases of Haley v. State, 173 S.W.3d 510
(Tex. Crim. App. 2005); Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1997); Boston v. State,
965 S.W.2d 546 (Tex. App.—Houston [14th Dist.] 1997, no pet.); and Smith v. State, 919 S.W.2d
96 (Tex. Crim. App. 1996).
       In Haley, the court stated that victim impact evidence or testimony generally may be
admissible at the punishment phase when that evidence has some bearing on the defendant’s
personal responsibility and moral culpability. Haley, 173 S.W.3d at 517. The court noted that the
introduction of such victim impact evidence is limited even further when a party attempts to
introduce this evidence concerning a victim of an extraneous offense and one not named in the
indictment. Id. The court held that victim impact testimony regarding a homicide was irrelevant to
the determination of Haley’s punishment where she was charged with possession of cocaine with
intent to deliver, where the indictment did not allege a victim. Id. at 518. In the case at bar, the
victim impact evidence related to a child who, although not the complainant, was a victim of the
offense for which Hallmark was indicted. We, therefore, hold that the evidence did have some
bearing on Hallmark’s personal responsibility and moral culpability with respect to the offense for
which he was indicted.
       In Cantu, the defendant was on trial for capital murder involving the death of one of two
young girls following their being raped by a gang. Cantu, 939 S.W.2d at 630. The court held that
the testimony of the mother of the second victim, the one for which Cantu was not on trial, as to the
victim’s character and the effect upon her family was not relevant and, therefore, inadmissible. Id.
at 637. The court stated, “The danger of unfair prejudice to a defendant inherent in the introduction
of ‘victim impact’ evidence with respect to a victim not named in the indictment on which he is
being tried is unacceptably high.” Id.



                                                  5
       Subsequently, in Roberts v. State, the court held that testimony by the victim of an extraneous
robbery as to the emotional impact the offense had on her life was admissible. Roberts v. State, 220
S.W.3d 521, 531 (Tex. Crim. App. 2007). Presumably, the victim of an extraneous robbery was not
named in the indictment. In the case at bar, the evidence concerns the effect of Hallmark’s offense
upon someone other than the victim. Although not the victim, the child traumatized by Hallmark’s
actions is no less a victim of his offense. If testimony concerning the effect on a victim of an
extraneous offense is admissible, it would seem that testimony concerning the effect of a victim other
than the complainant of the offense for which the defendant is indicted would also be admissible.
       In Boston, the court, relying on Cantu, held that the trial court abused its discretion by
allowing the victim of an extraneous robbery to testify concerning the offense’s impact on her life.
Boston, 965 S.W.2d at 550. We find the facts in Boston to be essentially the same as those in
Roberts. Consequently, we find Boston to be inconsistent with a recent case of the Texas Court of
Criminal Appeals and, therefore, unpersuasive.
       In Smith, the court held that evidence concerning the character of the victim was not relevant
to sentencing in a capital murder case. Smith, 919 S.W.2d at 101-02. We note that, in a later case,
the court held that evidence of the victim’s character is admissible to show the uniqueness of the
victim, the harm caused by the defendant, and as rebuttal to the defendant’s mitigating evidence but
that, when the evidence shifts from humanizing the victim and illustrating the harm caused by the
defendant to measuring the worth of the victim compared to other members of society, the State
exceeds the bounds of permissible testimony. Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim.
App. 1998). In any event, Smith is not applicable to the case at bar because the evidence in this case
involved evidence of the impact of the crime upon a victim of that crime, although not the
complainant, not evidence of that victim’s character. Hallmark makes no suggestion that the
testimony in any way measured the worth of the child compared to other members of society.
       Hallmark suggests that the trial court abused its discretion in admitting evidence of the
impact of the offense upon the child because such testimony is not contemplated by Article 56.03(e)
in that the child was not a victim alleged in the indictment. He has presented no authority for this
suggestion, and we are not aware of any. We have examined this provision of the Texas Code of
Criminal Procedure and find nothing contained therein that is inconsistent with our opinion as to the
admissibility of evidence of the impact of Hallmark’s offense upon the child. We overrule issue two.



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       The judgment of the trial court is affirmed.




                                                                                JOHN G. HILL
                                                                                JUSTICE


April 2, 2009
Publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
Strange, J., and Hill, J.2




       2
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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