                      NUMBER 13-07-322-CR

                   COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI - EDINBURG


RIGOBERTO SOLIS-REYES                                  Appellant,
A/K/A EUGENIO SANDOVAL,

                              v.

THE STATE OF TEXAS,                                    Appellee.


            On appeal from the 214th District Court
                  of Nueces County, Texas


                MEMORANDUM OPINION

          Before Justices Yañez, Rodriguez, and Vela
            Memorandum Opinion by Justice Vela
          Appellant, Rigoberto Solis-Reyes, a.k.a. Eugenio Sandoval, was charged with two

counts of aggravated sexual assault1 and one count each of aggravated robbery,2 burglary

of a habitation,3 and unauthorized use of a motor vehicle.4 A jury found him guilty of all

counts and assessed punishment at ninety-nine years in prison for each count of

aggravated sexual assault, sixty years in prison for aggravated robbery, fifteen years in

prison for burglary of a habitation, and ten months in state jail for unauthorized use of a

motor vehicle, all of which the trial court ordered to run concurrently. On appeal, appellant

complains that the trial court abused its discretion in admitting his video-recorded oral

statement into evidence because he was not properly given his Miranda5 warnings. We

affirm.

                                                A. Background Facts

          On July 24, 2005, 64-year-old D.S. was in bed at her Corpus Christi home when she

awoke to see a man’s arm raised above her. She then felt it hit her right cheek. She

screamed, and the man repeatedly hit her on the face with his fist. When she tried to call

911, the man knocked the phone from her hand and beat her more severely. Using her

bras, he tied her to the bedposts and unsuccessfully tried to vaginally penetrate her. After

urinating on her face, he penetrated her both vaginally and anally. She could not see the

man well because she was not wearing her glasses. She heard him speaking Spanish, as



          1
              See T EX . P EN AL C OD E A N N . § 22.021 (Vernon 2003).

          2
              See id. §§ 29.02, .03 (Vernon 2003).

          3
              See id. § 30.02 (Vernon 2003).

          4
              See id. § 31.07(a) (Vernon 2003).

          5
              Miranda v. Arizona, 384 U.S. 486 (1966).
                                                             2
if he were having a conversation with another person.

       During the attack, the man rummaged through her jewelry collection and took her

purse and car keys. D.S. testified that after the attacker left, she waited until dawn to start

calling out for help, but after a day passed without rescue, she concluded she would not

be found alive.

       D.S. was discovered about eighteen hours after the attack, after concerned friends,

neighbors, and co-workers had not heard from her. After noticing that her car was missing,

the police were called. Upon entering D.S.’s home, paramedics found her tied up “spread

eagle” on her back, blindfolded, gagged, partly nude, bruised and swollen - especially in

the face, hands, and feet. She was also weak and lethargic. It was determined that she

had suffered a heart attack during the ordeal.

       The same day the attack occurred, appellant showed up at the apartment of Maria

Ramirez, wanting to buy crack cocaine. Ramirez testified that appellant had a television

that he wanted to sell to get money to buy drugs. Ramirez and her daughter went with

appellant in the car he was driving to the apartment of her ex-boyfriend, Walter Floyd.

Ramirez and her daughter stayed in the car while appellant took the television into Floyd’s

apartment. Appellant then returned with cash. Back at her apartment, Ramirez “knew

something wasn’t right,” so she looked in the glove compartment of the vehicle and found

papers that identified a woman as the owner of the vehicle.             At that time, police

approached her. She identified appellant as being the person who had been driving the

car. Ramirez also directed police to Floyd’s apartment, where they recovered D.S.’s

television.

       Appellant was arrested and taken into custody. Officer R.L. Garcia, who was fluent

in Spanish, testified that appellant did not speak English and that appellant told him that

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he could read and write Spanish. Garcia then gave appellant a paper that contained

Miranda warnings written in Spanish. Appellant read the warnings out loud in Spanish and

placed his initials by the warnings. When asked to sign if he understood the warning,

appellant signed the paper. He also circled the word “Si” (yes) at portions of the document

when asked if he understood. Appellant then gave a video-taped statement, in which he

admitted involvement in the burglary and unauthorized use of the vehicle. He blamed

another person for the sexual assault.

       DNA testing of the victim’s fingernails and one of the bras identified a mixture of the

victim’s DNA and that of one other person, and that DNA was consistent with the DNA

profile of appellant at a probability of 1 in 52,520 for an unrelated Hispanic.6 Two other

bras also had a mixture of the victim’s DNA and one other person, but appellant was

excluded in those samples. Another bra had a partial DNA mixture with DNA from the

victim and at least two other people, with appellant’s DNA consistent with one of them.

Another bra had a mixture of the victim’s DNA and DNA consistent with appellant’s.

                                          B. Discussion

       By his first and second issues, appellant argues that the trial court abused its

discretion in admitting his video-recorded oral statement, in violation of his Fifth

Amendment rights. See U.S. CONST . amend V. He also argues that the trial court abused

its discretion in making its findings of fact and conclusions of law which reflected its ruling

on the admissibility of the statement.




       6
         Appellant’s DNA was recovered from a blood sam ple to which he consented. Appellant challenged
the issues of consent to the blood drawn at trial, but does not raise this issue on appeal.



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                                   Standard of Review

       In reviewing the admissibility of an oral or written statement, we apply a bifurcated

standard of review, affording almost total deference to the trial court’s determination of

historical facts that the record supports, especially when the fact findings are based on an

evaluation of the witnesses’ credibility and demeanor, and we review the court’s application

of the law to the facts de novo. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App.

2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Here, the trial court

made the following findings of fact and conclusions of law:

                                    FINDINGS OF FACT

       1. The Defendant, Rigoberto Solis-Reyes AKA Eugenio Sandoval can read
       and write in the Spanish language.

       2. The Defendant, Rigoberto Solis-Reyes AKA Eugenio Sandoval read the
       Spanish Miranda warnings out loud in front of a Spanish speaking Police
       Officer.

       3. The Defendant, Rigoberto Solis-Reyes AKA Eugenio Sandoval appeared
       to be intelligent enough to know what he was reading.

       4. The Defendant, Rigoberto Solis-Reyes AKA Eugenio Sandoval
       understood what he was doing when he gave a statement to the police.

                                  CONCLUSIONS OF LAW

       1. The Defendant, Rigoberto Solis-Reyes AKA Eugenio Sandoval freely and
       voluntarily gave up those rights in the making of an oral statement.

       2. There was substantial compliance with Article 38.22.

       3. The Defendant, Rigoberto Solis-Reyes AKA Eugenio Sandoval impliedly
       waived his rights and agreed to speak with the officers and give an oral
       video-taped statement.

       Appellant makes two basic arguments in support of his claim that the trial court



                                             5
abused its discretion in denying his motion to suppress. First, appellant argues he did not

receive the warnings required by Miranda and Texas Code of Criminal Procedure article

38.22 because the warnings were given to him in written form, which he read aloud, rather

than the warnings being read aloud to him by the detective taking the statement. Second,

he argues that he did not waive his rights because the written form did not contain an

express waiver with his accompanying signature or initials memorializing that he knowingly,

intelligently, and voluntarily gave up his rights.

           Was the officer required to read Miranda warnings and Article 38.22
                                   warnings out loud?

       Aside from Miranda and article 38.22, appellant cites no authority to support his

claim that an officer must read the required warnings to a suspect. Neither Miranda nor

article 38.22 specifically require that an officer read the required warnings out loud to a

suspect. See TEX . CODE CRIM . PROC . ANN . art. 38.22 (Vernon 2005); Miranda v. Arizona,

384 U.S. 436 (1966). While Miranda requires that a suspect “be informed,” “be clearly

informed” and speaks of the necessity “to warn him,” nowhere does it state that this must

be done by an officer reading the warnings out loud to the suspect. Miranda, 384 U.S. at

467-73. Likewise, article 38.22, section 3(a)(2), which applies to oral statements, requires

that an accused must “be given the [required] warning in Subsection(a) of Section 2

above,”7 but does not specify how the warning must be given. See TEX . CODE CRIM . PROC .


       7
        Texas Code of Crim inal Procedure art. 38.22 § 3(a)(2) (Vernon 2005) states:

       No written statem ent m ade by an accused as a result of custodial interrogation is adm issible
       as evidence against him in any crim inal proceeding unless it is shown on the face of the
       statem ent that:
       (a) the accused, prior to m aking the statem ent, either received from a m agistrate the warning
       provided in article 15.17 of this code or received from the person to whom the statem ent is
       m ade a warning that:
                (1) he has the right to rem ain silent and not m ake any statem ent at all and



                                                      6
ANN . art. 38.22, § 3(a)(2) (Vernon 2005).

       The argument that Miranda warnings must be given orally was advanced in Bell v.

United States, 382 F.2d 985 (9th Cir. 1967). In Bell, the Court rejected this argument,

stating:

       there is no requirement as to the precise manner in which police
       communicate the required warnings to one suspected of crime. The
       requirement is that the police fully advise such a person of his rights, and
       appellant made no showing that he did not read or understand the written
       warnings which were given to him.

Id. at 987; see Ex parte Bagley, 509 S.W.2d 332, 337 (Tex. Crim. App. 1974) (citing Bell

and noting that express written warnings satisfy the dictates of Miranda); Fritts v. United

States, 395 F.2d 219, 220 (5th Cir. 1968) (holding that the defendant was adequately and

sufficiently advised of his constitutional rights under Miranda when he was given a 4 x 5

card entitled “Your Rights,” which listed his Miranda rights, though the Court suggested that

it would have been a better practice to provide the rights in a larger type and on a larger

card or piece of paper).

       Here, the record reflects that appellant, who spoke only Spanish, was given his

Miranda rights in a form written in Spanish. He told the Spanish-speaking police officer

who gave him the warnings that he could read and write Spanish. Appellant read the

warnings out loud in Spanish in front of the officer, and indicated that he understood the


                that any statem ent he m akes m ay be used against him at his trial;
                (2) any statem ent he m akes m ay be used as evidence against him in court;
                (3) he has the right to have a lawyer present to advise him prior to and
                during any questioning;
                (4) if he is unable to em ploy a lawyer, he has the right to have a lawyer
                appointed to advise him prior to and during any questioning; and
                (5) he has the right to term inate the interview at any tim e; and
       (b) the accused, prior to and during the m aking of the statem ent, knowingly, intelligently, and
       voluntarily waived the rights set out in the warning prescribed by subsection (a) of this
       section.



                                                      7
warnings. Appellant wrote his initials next to each warning in front of the officer. As

appellant was unquestionably advised of all of his required rights in written form, which he

clearly read, we conclude that the trial court did not abuse its discretion in denying the

motion to suppress based on the argument that appellant was not read his Miranda

warnings out loud by the officer administering the warnings.

         Must an express waiver of rights be in writing when dealing with
                       an oral video-recorded statement?

       Next, appellant argues that the trial court abused its discretion in admitting his

statement into evidence because the waiver form he signed did not contain the statement

that “I knowingly, voluntarily, and intelligibly waived the rights described above before and

during the making of this statement.” This argument was addressed and rejected by this

Court in Villareal v. State, 61 S.W.3d 673, 679 (Tex. App.–Corpus Christi 2001, pet. ref’d).

In Villareal, the appellant made the identical argument asserted in this case. See Id. This

Court held:

       For oral statements, the waiver of Miranda rights need not be express. North
       Carolina v. Butler, 441 U.S. 369 (1979). The question is not one of form, but
       rather whether the defendant in fact knowingly and voluntarily waived the
       rights delineated in the Miranda case. Id. The waiver requirements are
       satisfied if, before making a statement, a defendant is advised of his rights
       and merely states that he understands them. Etheridge v. State, 903
       S.W.2d 1, 17 (Tex. Crim. App. 1994). There is no requirement that the
       confession be preceded by an express statement from the accused that he
       affirmatively waives his rights. Id. at 16-18.

       Id. Here, the record shows that appellant (1) received his warnings in written form,

(2) read the warnings out loud, (3) indicated to the officer that he understood them, (3)

initialed each warning, circled “Si” (yes) on the form where he was asked whether he

understood his rights, and (4) signed his name when asked to sign his name, if he




                                             8
understood his rights. Thus, the record demonstrates that appellant was properly warned

and that he waived his rights. Accordingly, we conclude that the trial court did not abuse

its discretion in denying appellant’s motion to suppress. Issues one and two are overruled.

The trial court’s judgment is affirmed.




                                                     ROSE VELA
                                                    Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this 24th day of April, 2008.




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