Affirmed and Memorandum Opinion filed June 19, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-00808-CR
                               NO. 14-16-00809-CR



                       CURTIS LEE DUNCAN, Appellant

                                          V.

                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 248th District Court
                             Harris County, Texas
                   Trial Court Cause No. 1464130 & 1464131

                 MEMORANDUM                        OPINION


      Appellant Curtis Lee Duncan was charged with aggravated kidnapping and
aggravated robbery. See Tex. Penal Code Ann. §§ 20.04, 29.03 (West 2016). As
part of a plea agreement with the State, appellant agreed that he would plead guilty
to both charges if the trial court denied his pre-trial motion to suppress his recorded
confession. After an evidentiary hearing, the trial court denied appellant’s motion.
Appellant then pled guilty to both charges and the trial court sentenced him to serve
thirty years in prison.

       On appeal, appellant contends in two related issues that the trial court abused
its discretion in denying his motion to suppress. Appellant argues in his first issue
that the three law enforcement officers who testified during the suppression hearing
lied about not having questioned appellant about the robbery before his recorded
interview. We overrule this issue because the evidence, when viewed in the light
most favorable to the trial court’s ruling, supports the trial court’s finding that the
officers were credible.

       Appellant contends in his second issue that his waiver of rights was not
voluntary. We overrule this issue because, under the totality of the circumstances
under which appellant’s statement was obtained, the record supports the trial court’s
determination that appellant’s confession was knowingly and voluntarily made and
was not the result of force, compulsion, or persuasion. We therefore affirm the trial
court’s final judgment.

                                        BACKGROUND

       Appellant was involved in a violent robbery of an Academy distribution center
during which more than 70 firearms were stolen.1 Special Agent Matthew Abowd
from the Bureau of Alcohol, Tobacco, Firearms, and Explosives was assigned to
investigate the robbery. Abowd approached the Pasadena Police Department about
assisting with his investigation. The police department assigned two detectives,
Alejandro Duran and Jason Phillips, to assist Abowd in any way that he needed.

       1
          Appellant and the other persons involved in the robbery kidnapped a security guard at
gun point and used his keys to gain access to the Academy distribution center. We will collectively
refer to both the kidnapping and the robbery as the Academy robbery.

                                                2
       Abowd, along with Duran and Phillips, went to appellant’s mother’s
apartment as part of the investigation. Abowd knocked on the door and appellant
unexpectedly answered. Abowd asked appellant to step outside while he went in to
speak with appellant’s mother.             Duran and Phillips detained appellant for
outstanding traffic warrants. Once those warrants were confirmed, the detectives
placed appellant under arrest and called for a Pasadena city marshal to transport
appellant to the Pasadena jail. The detectives asked appellant for basic booking
information, such as his name and date of birth. According to the detectives, neither
questioned appellant about the Academy robbery. Marshal Contrales soon arrived
to take appellant to the Pasadena jail. The detectives remained with Abowd after
appellant had been taken away. Abowd and the detectives travelled separately to the
Pasadena Police Station once Abowd finished interviewing appellant’s mother.

       According to Abowd, when he returned to the Pasadena Police Station, the
detectives met him at the station’s sally port and told him that appellant wished to
speak with him. Abowd asked appellant if he wanted to talk with him and appellant
responded yes. At that point, they proceeded to an interview room. After waiving
his rights, appellant confessed his involvement in the Academy robbery. Appellant
filed a motion to suppress his statement given during that interview. The trial court
conducted an evidentiary hearing on appellant’s motion.

       All three officers involved in the investigation leading up to appellant’s
confession testified during the suppression hearing.2 Duran testified that they
arrested appellant at his mother’s apartment for outstanding traffic warrants. He
further testified that they called for a city marshal to transport appellant to the city


       2
         Marshal Contrales died before the suppression hearing. Appellant testified, however, that
Contrales did not ask him any questions about the Academy robbery while he was being
transported to the Pasadena jail.

                                                3
jail. Duran did not question appellant about the Academy robbery at any time the
evening appellant was arrested. Duran also did not hear appellant ask for a lawyer.
Duran testified that he escorted appellant and Abowd to an interview room at the
Pasadena Police Station. Duran did not participate in appellant’s interview.

       Phillips testified next. Phillips denied asking appellant any questions about
the Academy robbery. He also never heard appellant ask for a lawyer.               Finally,
Phillips was unaware of anyone else associated with the Pasadena Police Department
questioning appellant about the Academy robbery.

       Abowd testified that he did not question appellant about the robbery until they
were inside the interview room.3 Once inside the room, Abowd began the interview
by trying to build rapport with appellant. Abowd then discussed with appellant the
reason they were there. Abowd reviewed appellant’s rights, had appellant read his
rights out loud, and then asked appellant if he wanted to talk with him about the
Academy robbery. After a short delay, appellant told Abowd that he did and he
signed a written waiver of his rights. Abowd testified that appellant did not appear
to be intoxicated and understood what they were discussing. Abowd was not aware
of anyone else questioning appellant about the robbery that evening. During cross-
examination, Abowd admitted that he did not take appellant before a magistrate prior
to interviewing him. Abowd also admitted that he discussed with appellant the
possibility that if he was prosecuted in the federal system, the federal sentencing
guidelines provided benefits for cooperating. After Abowd finished testifying, a
copy of appellant’s video statement was admitted into evidence and was reviewed
by the trial court. Appellant did not ask to talk with a lawyer at any time during the
recorded statement.

       3
       The room was equipped with a video recording device that had started recording before
Abowd and appellant entered the room.

                                             4
      Appellant also testified during the suppression hearing. Among other things,
appellant testified that he had taken a gram of methamphetamine daily for two or
three years and he had consumed a gram prior to his arrest. He claimed that he was
high at the time of his arrest. Appellant testified that he repeatedly asked to talk with
a lawyer both before and after he arrived at the Pasadena jail. Appellant asserted
that he had been tricked into talking with Abowd by the law enforcement officers
telling him that he would get a lawyer as soon as he gave a statement. Although
appellant testified that the Pasadena detectives told him his name had been
mentioned in connection with the Academy robbery, appellant did not testify that he
was interrogated twice about the Academy robbery: first without receiving Miranda
warnings and then, after he had confessed, a second time after receiving Miranda
warnings.

      At the conclusion of the evidentiary portion of the suppression hearing,
appellant argued that his statement should be suppressed because (1) he was not
taken before a magistrate prior to the interview; (2) he asked to speak with a lawyer
but the interview was not stopped; and (3) his statement was not voluntary because
Abowd’s questioning was coercive.

      The next day, the trial court denied appellant’s motion to suppress. The court
stated the following on the record:

      I will find that the statement was - - that the officers testified credibly,
      that the statement was voluntarily made and that the defendant
      knowingly waived his warnings and that there is no evidence of force,
      compulsion or persuasion. That the statement was voluntarily given.
      After the rights were read, he understood and waived.

Appellant’s counsel then asked about his argument regarding appellant not being
taken before a magistrate. The trial court responded:

      And that’s denied. I think that’s everything. And so just to make sure

                                           5
      that all the points are addressed, that the magistrate’s warnings - - that
      the Miranda warnings were given, they were understood, they were
      waived. That the statement was voluntarily made and given. That the
      defendant did not ask for a lawyer prior to waiving and giving that
      statement and that the nature of the questioning was not coercive nor
      did it overwhelm the will of the defendant.

Appellant having pleaded guilty, the trial court then sentenced appellant to serve
thirty years in prison on each charge, with the sentences to be served concurrently.
This appeal followed.

                                       ANALYSIS
I.    Standard of review and applicable law

      The statement of an accused may be used against him if it was freely and
voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc. Ann.
art. 38.21 (West 2005). When the voluntariness of a confession is challenged, the
trial court must make an independent determination in the absence of the jury of
whether the defendant voluntarily made the statement. Id. art. 38.22 § 6; Alvarado
v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). The State has the burden of
proving by a preponderance of the evidence that the statement was voluntary.
Alvarado, 912 S.W.2d at 211. To determine whether a confession was voluntary, a
reviewing court must examine the totality of the circumstances. Delao v. State, 235
S.W.3d 235, 239 (Tex. Crim. App. 2007).

      We review a trial court’s ruling on a motion to suppress for an abuse of
discretion and we will overturn the trial court’s ruling only if it is outside the zone
of reasonable disagreement. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim.
App. 2011). We must view the evidence in the light most favorable to the trial
court’s ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). At a
suppression hearing, the trial judge is the sole trier of fact and assesses the witnesses’


                                            6
credibility and decides the weight to give to their testimony. Id. at 24–25.

       When, as here, the trial court makes explicit findings, we determine whether
the evidence, viewed in the light most favorable to the ruling, supports those fact
findings.4     Appellate courts give almost total deference to a trial court’s
determination of the historical facts that are supported by the record, particularly if
the findings are based on credibility and demeanor. Miller v. State, 393 S.W.3d 255,
262 (Tex. Crim. App. 2012). This includes findings based on evidence in the form
of a videotape. Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006).
“When there are factual disputes regarding testimony or the contents of a videotape,
the trial court’s findings of historical fact are afforded almost total deference,”
though findings inconsistent with indisputable visual evidence may be disregarded.
Miller, 393 S.W.3d at 263 (internal quotation marks omitted). We are not at liberty
to disturb any fact finding that is supported by the record. Garza v. State, 213
S.W.3d 338, 346 (Tex. Crim. App. 2007). We review the trial court’s legal rulings
de novo unless its explicit fact findings that are supported by the record are also
dispositive of the legal ruling. Kelly, 204 S.W.3d at 818. We uphold the ruling if it
is supported by the record and correct under any theory of the law applicable to the
case. Hereford v. State, 339 S.W.3d 111, 117–18 (Tex. Crim. App. 2011).

II.    Appellant has not shown that the trial court abused its discretion when it
       found Abowd and the Pasadena detectives credible.
       Appellant argues in his first issue that the trial court abused its discretion when
it found that Abowd and the Pasadena detectives were credible because appellant’s


       4
        State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006); see State v. Cullen, 195
S.W.3d 696, 699 (Tex. Crim. App. 2006) (“The findings and conclusions need to be recorded in
some way, whether written out and filed by the trial court, or stated on the record at the hearing.”);
Joseph v. State, 514 S.W.3d 838, 842 n.2 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)
(same).

                                                  7
recorded statement “unequivocally and uncontrovertibly demonstrates” that they
were not truthful. Appellant’s argument begins with Abowd’s suppression-hearing
testimony that he first questioned appellant about the Academy robbery inside the
interview room at the police station. Appellant then points out several statements
Abowd made during his recorded interview that he contends establish Abowd lied
about the timing of his questioning.

      An appellate court may overturn a trial court’s credibility finding only under
narrow circumstances. See Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim.
App. 2000) (declining to give “almost total deference” to trial court’s findings under
the narrow circumstance where videotape presented indisputable visual evidence
contradicting essential portions of police officer’s testimony regarding defendant’s
consent to search). We therefore examine whether the trial court’s credibility
finding is supported by the record. Miller, 393 S.W.3d at 262.

      Appellant first focuses on two questions Abowd asked appellant during the
interview: “Now, you told me that you stole 14 guns, right? And you got $2400 for
it right?” The two questions occurred about fifteen minutes into the recorded
interview, after Abowd had reviewed appellant’s rights but before appellant signed
the waiver. In appellant’s view, the fact that he had not previously mentioned during
the interview the number of stolen guns, or the amount of money received for them,
conclusively establishes that Abowd had interviewed appellant previously and
obtained an unrecorded confession without warning appellant of his rights.
According to appellant, Abowd lied when he testified otherwise during the
suppression hearing. See Vasquez v. State, 483 S.W.3d 550, 553 (Tex. Crim. App.
2016) (explaining that a “two-step” or “question first, warn later” interrogation
occurs when a suspect is interrogated without receiving Miranda warnings, a
confession is obtained, the suspect is given the Miranda warnings, and the suspect

                                          8
repeats the confession); Martinez v. State, 272 S.W.3d 615, 626 (Tex. Crim. App.
2008) (holding that when “two-step” interrogation tactic has been used deliberately,
suspect’s unwarned and warned statements must be suppressed).

        Although this is one possible inference arising out of the interview questions,
it is not the only one. Nor is it one that, under the appropriate standard of review,
we are compelled to accept. Instead, the trial court reasonably could have found,
based on the complete content of appellant’s interview,5 that Abowd learned this
information before appellant’s arrest—possibly from appellant’s brother, who was
also in custody. The trial court also reasonably could have found that Abowd
revealed this information in the manner he did to show appellant how much the
police already knew about the robbery and thereby encourage appellant to cooperate.
See Allen v. State, 479 S.W.3d 341, 351 (Tex. App.—El Paso 2015, no pet.)
(rejecting contention that police interrogation technique utilizing intentional
deception to invoke response from suspect rendered statement involuntary). We
conclude Abowd’s interview questions do not present indisputable visual evidence
contradicting his hearing testimony, and therefore do not establish that the trial court
abused its discretion when it found him credible. See Drake v. State, 123 S.W.3d
596, 602 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (affirming denial of
motion to suppress when ruling was based on trial court’s evaluation of defendant
and police investigator’s credibility); cf. Miller, 393 S.W.3d at 263–68 (reversing
trial court’s denial of motion to suppress when scene video established there was no
evidence of domestic violence).

       Appellant next directs our attention to several related statements made by

       5
          During an earlier portion of the interview, Abowd told appellant that “there are facts I
know and that you know and I gotta make sure they match up.” Abowd also mentioned that he
“talked to another family member. Your brother, he’s in custody as well.” Abowd continued that
he “went to [appellant’s] house after talking to your brother.”

                                                9
Abowd during the early part of the recorded interview. Abowd said, “[w]e were
talking on the way up here about — you said you went to TYC, right?” After
appellant responded that he had served two years for burglary, Abowd asked him
“[w]hat did you steal then?” A few seconds later, Abowd said: “[a]s we talked about,
I came by and talked to your mom tonight and — um you’re in a tough spot man.”
Several minutes later, Abowd told appellant: “[n]ow I’m going to talk to you about
the robbery — aggravated robbery, kidnapping, and the theft of the firearms and I’m
going to ask you some questions . . . about the details. I want you to tell me your
story. OK, how ya’ll planned it. . . . [A]nd then we’re gonna back up and I’m gonna
ask you specifics if I need specifics in certain areas, like where did you meet, what
kind of car you were in . . . .” Seconds later, Abowd said, “like I told you on the
walk up here, I’m worried about the guns and I’d like to get some of the guns off the
street. If you can help me with that great. I understand you might not know all the
details, you know, the second you sell ‘em, they’re gone—I understand all that.”

      Appellant also points to two of his responses after Abowd said “let’s talk
about why you’re here” and revealed that he had already talked with appellant’s
brother, who was also in custody. Appellant interrupted Abowd, asking “[d]id he
get caught with the guns or what?” After Abowd responded “yeah,” appellant said
“[i]t was 13 — I was missing one.” According to appellant, these portions of the
recorded interview establish that the trial court abused its discretion when it found
Abowd credible because “at some point prior to the two men entering the interview
booth, appellant incriminated himself to either [Abowd] or the two Pasadena officers
without having received [Miranda] warnings.”

      We conclude these questions and statements highlighted by appellant do not
show an abuse of discretion by the trial court. First, the trial court reasonably could
have found that the information regarding the robbery Abowd shared with appellant

                                          10
during this exchange was not gathered from an unrecorded interrogation, but came
instead from some other source, such as appellant’s brother. See State v. Duran, 396
S.W.3d 563, 571 (Tex. Crim. App. 2013) (“The winning side [in a suppression
hearing] is afforded the strongest legitimate view of the evidence as well as all
reasonable inferences that can be derived from it.” (internal quotation marks
omitted)). Second, the trial court reasonably could have found that appellant’s own
statements do not reveal prior interrogation by Abowd because they were
spontaneous responses to the revelation that appellant’s brother was in custody. See
Allen, 479 S.W.3d at 351 (considering suspect’s demeanor and answers during
interview before rejecting argument statement was involuntarily given).

      Finally, we address Abowd’s questions about appellant’s prior incarceration
in TYC, which revealed that a conversation occurred while they were walking up to
the interview room. The trial court reasonably could have found that these types of
questions regarding appellant’s prior encounters with law enforcement were not an
interrogation regarding the Academy robbery, but were instead questions designed
to build rapport with appellant. See Jones v. State, 795 S.W.2d 171, 174 (Tex. Crim.
App. 1990) (observing that not all post-arrest police questioning constitutes an
interrogation); Ruth v. State, 167 S.W.3d 560, 571 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d) (stating that general and routine questions do not constitute
interrogation); Daniels v. State, 25 S.W.3d 893, 897 (Tex. App.—Houston [14th
Dist.] 2000, no pet.) (“Interrogation encompasses any word or action on the part of
the officers that they should know is reasonably likely to elicit an incriminating
response from the suspect.”). Asking such questions before warnings are given does
not require suppression of statements made during a subsequent interrogation. See
Morris v. State, 897 S.W.2d 528, 531 (Tex. App.—El Paso 1995, no pet.) (stating
that if a defendant’s “statements do not stem from custodial interrogation, neither


                                        11
Miranda nor Article 38.22 require their suppression.”).

       Appellant also argues that the testimony of Abowd and the police detectives
conflicts regarding their interactions with appellant at the Pasadena Police Station.
Abowd testified that he was unaware of anyone questioning appellant about the
Academy robbery prior to the start of the recorded interview. Both police detectives
testified that they did not question appellant about the robbery. Appellant suggests
there is a conflict here because Abowd testified that upon his arrival at the police
station, the officers told him appellant wanted to talk to him. In appellant’s view,
this testimony shows that one or both of the detectives talked with appellant and
caused him to talk to Abowd. We once again conclude appellant has not established
an abuse of discretion by the trial court because the court reasonably could have
found that appellant voluntarily told the detectives he wanted to speak with Abowd.
Duran, 396 S.W.3d at 571. We overrule appellant’s first issue.

III.   Appellant has not shown that the trial court abused its discretion by
       finding his statement voluntary.
       Appellant argues in his second issue that his confession was not voluntary
because it resulted from Abowd’s use of intimidation, coercion, or deception. A
statement is involuntary and may not be used against a defendant under federal due-
process principles if the defendant was offered inducements of such a nature or
coerced to such a degree that the inducements or coercion produced the statement.
See Alvarado, 912 S.W.2d at 211. Under Texas law, article 38.21of the Code of
Criminal Procedure requires that, to be admissible into evidence, a defendant’s
statement must be “freely and voluntarily made without compulsion or persuasion.”
Tex. Code Crim. Proc. Art. 38.21. To render a defendant’s confession invalid under
article 38.21, a promise must have been positive, made or sanctioned by someone in
authority, and of such an influential nature that it would cause a defendant to speak


                                         12
untruthfully. Coleman v. State, 440 S.W.3d 218, 223 (Tex. App.—Houston [14th
Dist.] 2013, no pet.). A defendant’s will may also be overborne if the record shows
that there was “official, coercive conduct of such a nature” that a statement by the
defendant was “unlikely to have been the product of an essentially free and
unconstrained choice by its maker.” Alvarado, 912 S.W.2d at 211. The ultimate
question in both situations is whether appellant’s will was overborne. Creager v.
State, 952 S.W.2d 852, 856 (Tex. Crim. App. 1997).

      Appellant’s argument is based largely on his contention that Abowd
conducted an improper two-step interrogation and then he and the Pasadena
detectives lied about it during their suppression-hearing testimony. We have already
addressed and rejected this contention. We turn next to appellant’s argument that
his statement was involuntary because Abowd induced or tricked him into
confessing through a promise of lenient treatment. We conclude the record does not
support this contention. At most, the record reveals Abowd telling appellant that
under the federal sentencing guidelines, a defendant who cooperates with the police
may receive less severe punishment. This statement is insufficient to establish that
appellant’s will was overborne. See Muniz v. State, 851 S.W.2d 238, 254 (Tex.
Crim. App. 1993) (observing that general statements regarding how a confession
may sometimes result in leniency do not render a confession involuntary); Herrera
v. State, 194 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)
(holding investigator’s statement, “We can talk to the D.A., get you an offer, if you
help us,” not specific enough to influence appellant to speak untruthfully); Ramirez
v. State, 76 S.W.3d 121, 126 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(“Appellant has failed to demonstrate that the party in authority positively and
unequivocally promised leniency in return for a confession.”).

      Finally, in support of his contention that Abowd coerced him into confessing,

                                         13
appellant points to Abowd (1) reviewing appellant’s criminal history, (2) mentioning
appellant’s mother’s poor circumstances, (3) informing appellant that his brother
was already in custody, (4) assuring appellant that no one had accused him of being
the ringleader of the robbery, and (5) informing appellant through leading questions
that he was aware of the number of firearms appellant had taken from the Academy.
We conclude these comments are insufficient to have overborne appellant’s will so
that he was willing to speak untruthfully. See Allen, 479 S.W.3d at 351 (rejecting
appellant’s contention his confession was coerced after reviewing record, including
video of interview).

       Because the State met its burden to establish that appellant made his statement
voluntarily, we hold the trial court did not abuse its discretion when it denied
appellant’s motion to suppress. We overrule appellant’s second issue.



                                        CONCLUSION

       Having overruled both issues raised by appellant in this appeal, we affirm the
trial court’s judgment.




                                            /s/     J. Brett Busby
                                                    Justice



Panel consists of Justices Busby and Wise and Senior Justice Yates.6
Do Not Publish — TEX. R. APP. P. 47.2(b).

       6
         The Honorable Leslie B. Yates, Senior Justice of the Fourteenth Court of Appeals sitting
by assignment.


                                               14
