                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00147-CR
         ______________________________


           DEON RAY RICKS, Appellant

                         V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the Criminal District Court #6
                Dallas County, Texas
           Trial Court No. F-0752541-X




     Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION

         Linden Hawkins owed Deon Ray Ricks money for drugs purchased from Ricks on credit.

In that situation, Hawkins made the rather short-sighted decision to steal some guns from Ricks,

pawn them, and use the money to satisfy the debt. Hawkins apparently paid for that decision with

his life.

         A Dallas County1 jury found Ricks guilty of murdering Hawkins2 and made findings that

enhanced Ricks' sentence based on two prior felonies.

         We affirm the trial court's judgment because we hold that (1) the trial court did not abuse its

discretion in admitting Ricks' oral statements and (2) the variance in the second enhancement

paragraph is not material.




            1
         This case was transferred to this Court from the Fifth District Court of Appeals in Dallas as
part of the Texas Supreme Court's docket equalization program. We are not aware of any conflict
between the precedent of the Dallas Court and the precedent of this Court on any issue relevant in
this appeal. See TEX . R. APP . P. 41.3.
        2
        Yvonnedala Preston, Hawkins' wife, testified that Hawkins stole some guns from Ricks,
intending to pawn the guns to pay Ricks. Several witnesses testified that Ricks had visited the
homeless shelter where Hawkins and Preston resided looking for Hawkins before the murder.
Jo Dee Barbosa, the shelter's security guard, testified Ricks had threatened to kill Hawkins. A car
Ricks had borrowed from his girlfriend, Demetriese Smith, was seen leaving the scene of the murder.
When Ricks returned without the car, Smith testified Ricks claimed the car was "on flat" because
"[s]omebody got killed. [Ricks] took care of his business." The jury found Ricks guilty, found the
enhancement paragraphs true, and assessed punishment at ninety-nine years' imprisonment.

                                                   2
1.     The Trial Court Did Not Abuse Its Discretion In Admitting Ricks' Oral Statements

       Ricks argues that the trial court erred in admitting statements Ricks made during a recorded

police interrogation. During the interview, Ricks admitted that he was present in the vehicle and also

told the police where the vehicle could be located. Ricks denied that he was the shooter and claimed

a third person, whose name Ricks did not know, was the shooter. Ricks claims the statements were

inadmissible because Ricks did not expressly waive his Miranda3 rights and the police obtained the

statements through deception and affirmative misrepresentation. Because Ricks failed to preserve

the deception-and-affirmative-misrepresentation argument,4 we address only the express-waiver

argument.




       3
       Miranda v. Arizona, 384 U.S. 436 (1966); see TEX . CODE CRIM . PROC. ANN . art. 38.22, § 2
(Vernon 2005).
       4
         On appeal, Ricks argues the police officers were deceptive. According to Ricks, the police
officers affirmatively misrepresented that they were looking for a third person and not interested in
Ricks. The police officers admitted they had evidence at the time of the interview that Ricks fired
the fatal shots. Although Ricks objected to the admission of the video of the interrogation, Ricks
did not argue to the trial court that the police officers engaged in deception and affirmative
misrepresentation. To preserve any complaint for appellate review, the record must show the
complaint was timely presented to the trial court and a ruling was obtained. TEX . R. APP . P. 33.1(a);
see Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Further, the objection or
complaint made at trial must be the same as that urged on appeal in order to preserve error for
review. Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); Thompson v. State, 59
S.W.3d 802, 808 (Tex. App.—Texarkana 2001, pet. ref'd); Judd v. State, 923 S.W.2d 135, 138 (Tex.
App.—Fort Worth 1996, pet. ref'd). Because Ricks did not complain about deception or affirmative
misrepresentation in the trial court, Ricks has failed to preserve this argument for appellate review.


                                                  3
       Generally, we review the trial court's admission of evidence for an abuse of discretion. See

Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990). We afford almost total

deference to a trial court's determination of historical facts, especially when the trial court's

fact-findings are based on an evaluation of credibility and demeanor. See Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997); State v. Oliver, 29 S.W.3d 190, 191 (Tex. App.—San

Antonio 2000, pet. ref'd). Similarly, we afford great deference to the trial court's rulings on

application of law to fact questions when resolution of those ultimate questions turns on an

evaluation of credibility and demeanor. See Guzman, 955 S.W.2d at 89. However, we review

de novo mixed questions of law and fact not falling within this category. Id.

       A 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 "the waiver must have been made with

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

to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). Article 38.22, Section 3, of the Texas

Code of Criminal Procedure states, "No 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" it has been recorded and the recording shows the administration of certain warnings set out

in Article 38.22, Section 2. See TEX . CODE CRIM . PROC. ANN . art. 38.22, § 3 (Vernon 2005). There

was no dispute that the oral statements were made during a recorded custodial interrogation5 or that

       5
         A person is in custody only if, under the circumstances, a reasonable person would believe
that his or her freedom of movement was restrained to the degree associated with a formal arrest.

                                                 4
the police gave Ricks the admonishments required by Article 38.22, Section 2. The dispute in this

case concerns whether Ricks waived his rights.

        Ricks argues the video does not show that Ricks waived his Miranda rights. Although Ricks

affirmatively represented he understood his rights, there was no express waiver of those rights. An

express waiver, though, is not required. It is well established that Section 38.22 does not require an

express waiver. Barefield v. State, 784 S.W.2d 38, 40–41 (Tex. Crim. App. 1989), overruled on

other grounds by Zimmerman v. State, 860 S.W.2d 89, 94 (Tex. Crim. App. 1993) (challenges to

veniremembers); Hargrove v. State, 162 S.W.3d 313, 318 (Tex. App.—Fort Worth 2005, pet. ref'd);

State v. Oliver, 29 S.W.3d 190, 191 (Tex. App.—San Antonio 2000, pet. ref'd); see Rocha v. State,

16 S.W.3d 1, 12 (Tex. Crim. App. 2000). "A waiver of rights may be inferred from the actions and

words of the person interrogated." Hargrove, 162 S.W.3d at 318; see Mays v. State, 726 S.W.2d

937, 946 (Tex. Crim. App. 1986). Our review of the video indicates that whether Ricks impliedly

waived his rights is well within the zone of reasonable disagreement. Ricks affirmatively stated that

he understood the rights and appears to have willingly discussed the events with the police. The trial

court did not abuse its discretion in finding that Ricks impliedly waived his Miranda rights.




Stansbury v. California, 511 U.S. 318, 322 (1994); Dowthitt v. State, 931 S.W.2d 244, 254 (Tex.
Crim. App. 1996). When determining whether a person is in custody, we examine four
factors: (1) probable cause to arrest, (2) subjective intent of the police, (3) focus of the investigation,
and (4) subjective belief of the defendant. Dowthitt, 931 S.W.2d at 254; Yarborough v. State, 178
S.W.3d 895, 901 (Tex. App.—Texarkana 2005, pet. ref'd).

                                                    5
2.      The Variance In the Second Enhancement Paragraph Is Not Material

        Ricks also claims the evidence is legally insufficient to establish Ricks had been previously

convicted of the offense alleged in the second enhancement paragraph. The second enhancement

paragraph contained in the indictment alleged Ricks had been previously convicted of

"POSSESSION OF A CONTROLLED SUBSTANCE MORE THAN 4 GRAMS, on the 9TH day

of MARCH, 2000, A.D., in Cause Number F-9946335 on the docket of CRIMINAL DISTRICT

COURT NO. 4, DALLAS County, Texas under the name of DEON RAY RICKS . . . ." (Emphasis

added.) The evidence at trial, though, established the cause number for the offense was actually

cause number F9946235. Ricks argues, because a variance exists between the indictment and the

evidence at trial,6 the evidence is legally insufficient to establish this prior conviction.




        6
         We note, as argued by the State, that a plea of true to an enhancement is sufficient proof by
itself to satisfy the State's burden. See Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App.
1984); Cook v. State, 256 S.W.3d 846, 851 (Tex. App.—Texarkana 2008, no pet.). When Ricks
entered his pleas prior to trial on guilt/innocence, Ricks entered a plea of not true to the enhancement
paragraph. After the jury found Ricks guilty, Ricks entered pleas of true to both enhancement
paragraphs. However, the record in this case establishes the enhancement paragraph alleged the
wrong cause number.

        Despite the general rule that a plea of true to an enhancement paragraph relieves the
        State of its burden to prove a prior conviction alleged for enhancement and forfeits
        the defendant's right to appeal the insufficiency of evidence to prove the prior
        conviction, there is an exception when "the record affirmatively reflects" that the
        enhancement is itself improper.

Ex parte Rich, 194 S.W.3d 508, 513 (Tex. Crim. App. 2006) (footnote omitted). We will address
Ricks' argument on the merits.

                                                   6
        The Texas Court of Criminal Appeals held in Malik v. State that evidentiary sufficiency

should be measured against a "hypothetically correct" jury charge. Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997); see Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001); see

also Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim. App. 2008) (clarifying that factual

sufficiency is measured by hypothetically correct jury charge). Malik controls "even in the absence

of alleged jury charge error." Gollihar, 46 S.W.3d at 255. The Texas Court of Criminal Appeals

has noted "Malik's principles apply equally to the affirmative findings necessary to sustain the

imposition of an enhanced punishment" and concluded the sufficiency of the evidence of the

enhancements should be measured by the hypothetically-correct jury charge for the enhancement.

Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000) (applying hypothetically-correct jury

charge to drug-free zone enhancement); see Sims v. State, 84 S.W.3d 768, 779 (Tex. App.—Dallas

2002, pet. ref'd).

        A "hypothetically-correct" jury charge is "one that accurately sets out the law, is authorized

by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for which the

defendant was tried." Malik, 953 S.W.2d at 240. The hypothetically-correct charge "need not

incorporate allegations that give rise to immaterial variances." Gollihar, 46 S.W.3d at 256. The

issue in this case is whether the incorrect cause number is a material variance.




                                                   7
       A variance exists when there is a discrepancy between the allegations in the charging

instrument and the proof at trial. In re S.C., 229 S.W.3d 837, 841 (Tex. App.—Texarkana 2007, pet.

denied). "The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the

evidence problem or as a notice-related problem, is that a variance that is not prejudicial to a

defendant's 'substantial rights' is immaterial."       Hart v. State, 173 S.W.3d 131, 144 (Tex.

App.—Texarkana 2005, no pet.) (quoting Gollihar, 46 S.W.3d at 247–48; and referencing Rojas v.

State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998)). Whether a defendant's "substantial rights"

have been prejudiced depends on: (1) whether the indictment, as written, informed the defendant

of the charge against him or her sufficiently to allow such defendant to prepare an adequate defense

at trial, and (2) whether prosecution under the deficiently drafted indictment would subject the

defendant to the risk of being prosecuted later for the same crime. See S.C., 229 S.W.3d at 841;

Brown v. State, 159 S.W.3d 703, 709 (Tex. App.—Texarkana 2004, pet. ref'd).

       We begin our analysis by noting it is not necessary to allege enhancement convictions with

the same particularity which must be used in charging on the primary offense. Freda v. State, 704

S.W.2d 41, 42 (Tex. Crim. App. 1986); Chavis v. State, 177 S.W.3d 308, 312 (Tex. App.—Houston

[1st Dist.] 2005, pet. ref'd). Unless the variance prevented the defendant from identifying the

conviction and preparing a defense, Texas courts have consistently held that a variance in the cause

number of a prior conviction is not a material or fatal variance. See Human v. State, 749 S.W.2d

832, 837 (Tex. Crim. App. 1988) (holding variance in cause number not fatal); Cole v. State, 611



                                                   8
S.W.2d 79, 82 (Tex. Crim. App. [Panel Op.] 1981) (variance in cause number not fatal); Straughter

v. State, 801 S.W.2d 607, 611 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (no fatal variance);

Barrett v. State, 900 S.W.2d 748, 752 (Tex. App.—Tyler 1995, pet. ref'd) (no fatal variance). With

the exception of the cause number, the allegations identifying the offense, date of judgment, and

court are correct. There is no evidence in this record that the variance prevented Ricks from

identifying the conviction and preparing a defense or the variance would subject Ricks to the risk

of being prosecuted later for the same crime. The variance in the cause number is not material and,

therefore, need not be included in the hypothetically-correct jury charge. Under the hypothetically-

correct jury charge, the evidence is sufficient to support the jury's conclusion that the enhancement

was true.

       Because the trial court did not abuse its discretion in admitting the statements Ricks made

during the police interrogation, and because the evidence supporting the jury's finding on the second

enhancement is legally sufficient, we affirm the judgment.




                                              Josh R. Morriss, III
                                              Chief Justice

Date Submitted:        April 9, 2009
Date Decided:          April 15, 2009

Do Not Publish




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