       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00689-CR


                                Kenneth McMichael, Appellant

                                                v.

                                  The State of Texas, Appellee


               FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
          NO. CR2016-623, THE HONORABLE DIB WALDRIP, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Kenneth McMichael was charged with aggravated robbery. See Tex. Penal Code

§§ 29.02, .03. The indictment included two enhancement paragraphs alleging that McMichael was

previously convicted of the felony offenses of attempted burglary of a habitation and possession

of a controlled substance. See id. § 12.42. At the end of the guilt-or-innocence phase, the jury

found McMichael guilty of the charged offense. McMichael elected to have the district court

assess his punishment, and the district court found the enhancement allegations to be true and

sentenced him to fifty-two years’ imprisonment. On appeal, McMichael asserts that there was

reversible error in the jury charge. We will affirm the district court’s judgment of conviction.


                                        BACKGROUND

               McMichael was charged with committing aggravated robbery at a tattoo parlor in

New Braunfels, Texas. The indictment alleged that the following three individuals were also

involved in the offense: Olanda Taylor, Robert Lionel Ruffins, and Anthony Ruffins. The
alleged victim in this case was Sarah Zamora, who worked at the tattoo parlor along with her

husband Anthony Zamora.1 At the time of the offense, Sarah and Anthony were in the shop

along with their customer Tony Hernandez. During the guilt-or-innocence phase, the following

witnesses testified: Sarah, Hernandez, Officer Richard Groff, and Officer John Mahoney. In

addition, audio and visual recordings were admitted into evidence and played for the jury.

               The first recordings were from security cameras located inside the tattoo shop.

The footage from the recordings showed four men with masks on their faces entering the shop at

night and carrying multiple handguns. Although their faces were covered on the recordings, law-

enforcement officials testified at trial that they were able to link the individuals on the recordings

to McMichael and the three other men listed in the indictment through various investigative

methods, including tracking the location of the property that was stolen from the tattoo shop,

reviewing the security footage for identifying features, and examining the social-media profile of

one of the suspects to identify other potential suspects. Regarding McMichael, police officers

testified that they were able to identify him through the methods discussed above, including

observing on the recording a tattoo of a cross on his forearm that they were able to match to

other known photos of him.

               One recording showed one of the men kicking Sarah in the face before holding

a gun to her head and then directing her to a cash register and to a safe. Another recording

captured one of the men stomping on the back of Hernandez’s head after he complied with the

man’s command to lie on the floor and showed several of the men repeatedly kicking Hernandez

in the head, hitting him in the head with their pistols, and dragging him around the room.

Regarding the individual later identified as McMichael, the recordings showed him carrying a

       1
           Because Sarah and Anthony Zamora share the same surname, we will refer to them by
their first names.
                                                  2
bag, grabbing a small safe located in the shop, holding one of the guns for some period of time,

pointing the gun at Hernandez, and kicking Hernandez in the head.

               In addition to the recordings discussed above, two other recordings were admitted

into evidence and played for the jury. The State offered the first, which documented an interview

of McMichael by New Braunfels police officers regarding this case. In the interview, one of the

officers asked whether McMichael had been read his rights during a prior interview by another

law-enforcement agency that occurred in the same room and ended a few minutes before the

interview by the New Braunfels police officers began. McMichael confirmed that the officers

from the prior interview read him his rights. In response to questioning by the New Braunfels

police officers, McMichael admitted that he went into the tattoo shop with the three men

mentioned above, that one of the owner’s cousins encouraged them to rob the tattoo shop, that

they planned to get cash from the cash register and from a safe that they had been told was in a

closet, and that some of the other men assaulted Hernandez. In addition, McMichael admitted

that still photos taken from the surveillance footage showed that he was one of the individuals

present in the tattoo shop on the night in question.

               The second recording was offered by McMichael and captured the prior interview

discussed above in which members of the United States Marshals Task Force questioned

McMichael about a crime that was unrelated to the robbery at issue in this case. In that

interview, one of the officers read McMichael the statutory warnings contained in article 38.22

of the Code of Criminal Procedure, and McMichael stated that he understood those rights and

then answered the officers’ questions. When the officers finished their interview, McMichael

was taken outside for a smoke break lasting approximately twelve minutes before he returned to

the same room where the New Braunfels police officers interviewed him.

                                                  3
                After both sides rested, the district court prepared a jury charge before both sides

presented their closing arguments. Among other directives, the charge contained the following

instructions:


       IV. No oral statement made by an accused as a result of custodial interrogation
       may be considered as evidence against him in any criminal proceeding unless the
       jury believes beyond a reasonable doubt that the statement was voluntarily made.

       In making the determination regarding “voluntariness,” you are instructed that the
       law provides that:

                (a) the accused, prior to making the statement, received from the
                person to whom the statement is made a warning that:

                       (1) he has the right to remain silent and not make any
                       statement at all and that any statement he makes may be
                       used against him at his trial;

                       (2) any statement he makes may 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 employ 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 terminate the interview at any time;
                       and

                (b) the accused, prior to and during the making of the statement,
                knowingly, intelligently, and voluntarily waived the rights set out
                in the warning prescribed by Subsection (a) of this section.

       Unless you find beyond a reasonable doubt that the Defendant’s oral statement
       was voluntarily made, you are instructed that you shall not consider such
       statement for any purpose. If you do not find beyond a reasonable doubt that the
       Defendant’s oral statement was voluntarily made, you are further instructed that
       you may not consider any evidence obtained as a result thereof against the
       Defendant for any purpose.




                                                 4
              During deliberations, the jury submitted a question asking if “the Miranda Rights

need to be read to a defendant for each interview of a law enforcement agent under the same

arrest? If answer is yes, need to view” the recording of McMichael being questioned by the

New Braunfels police officers. Following that request, the district court prepared a supplemental

instruction that the district court stated would have been “appropriate for the original charge

had it been included.” Most of the supplemental instruction repeated directives from the jury

charge, including directives explaining that the jury was the exclusive judge of the facts, that

the jury was bound by the law given by the district court, and that the jury could not consider

McMichael’s statement to the police unless they first determined beyond a reasonable doubt

that the statement was voluntarily given. In addition, the supplemental instruction contained the

following new directives:


       Article 38.22 of the Texas Code of Criminal Procedure, Section 7 instructs that:
       “When the issue [of voluntariness of a statement] is raised by the evidence, the
       trial judge shall appropriately instruct the jury, generally, on the law pertaining to
       such statement.”

       In Section IV. of the CHARGE OF THE COURT, you were instructed, generally,
       on the law pertaining to factors you may consider regarding your determination of
       the voluntariness of any such statement.

       Generally, a voluntary statement is one that is the product of a free and deliberate
       choice rather than intimidation, coercion, or deception. As well, waiver of one’s
       privilege against self-incrimination must be made with full awareness of both the
       nature of the right being abandoned and the consequences of the decision to
       abandon it. Only if the totality of the circumstances reveals, beyond a reasonable
       doubt, both an un-coerced choice and a sufficient level of comprehension may a
       statement be determined to be voluntary.


              McMichael objected to the submission of the supplemental jury instruction, but

the district court overruled the objection. After finishing their deliberations, the jury found

McMichael guilty. McMichael appeals the district court’s judgment of conviction.

                                                 5
                                          DISCUSSION

               In his issue on appeal, McMichael asserts that the district “court’s supplemental

jury instruction constitutes reversible error.” See Daniell v. State, 848 S.W.2d 145, 147 (Tex.

Crim. App. 1993) (explaining that if “trial judge responds substantively to a jury question during

deliberations, that communication essentially amounts to an additional or supplemental jury

instruction”); see also Tex. Code Crim. Proc. art. 36.16 (allowing additional jury instructions to

be given at “the request of the jury”). When asserting that there was jury-charge error in this case,

McMichael presents several sets of arguments regarding the supplemental instruction.

               In his first set of arguments, McMichael contends that the district court’s

supplemental instruction does not comply with article 38.22 of the Code of Criminal Procedure.

Specifically, McMichael notes that article 38.22 provides that if the evidence raises a question

about the voluntariness of a statement by an accused, “the trial judge shall appropriately

instruct the jury, generally, on the law pertaining to such statement.” See Tex. Code Crim. Proc.

art. 38.22, § 7 (emphasis added); see also Moon v. State, 607 S.W.2d 569, 572 (Tex. Crim. App.

1980) (explaining that sections six and seven both “only speak to the issue of voluntariness”).

In light of this statutory language, McMichael contends that the original instruction in the jury

charge pertaining to the voluntariness of his oral statement was the “general” instruction

contemplated by article 38.22 and that the supplemental instruction is a specific instruction that

was not authorized by the statute.

               As support, McMichael points to Mendoza v. State, in which the Court of

Criminal Appeals upheld the trial court’s decision not to include in the charge three of the four

instructions on voluntariness submitted by the defendant. See 88 S.W.3d 236, 237-38 (Tex.

Crim. App. 2002). When discussing the propriety of the exclusion of the first two instructions in

                                                 6
Mendoza, the court explained that they “recited specific facts and called attention to a specific

piece of evidence” and, therefore, could be considered improper “comment[s] on the weight of

the evidence.” Id. at 240.

               We do not believe that the analysis from Mendoza compels a conclusion that the

supplemental instruction here was erroneous. As an initial matter, we note that the Court of

Criminal Appeals in Mendoza concluded that the trial court properly included the defendant’s

first instruction on voluntariness, which listed the requirements from article 38.22 but also

included language similar to the portion of the supplemental instruction at issue in this case.

See id. at 237 n.1, 240. In particular, the first instruction from Mendoza stated the jury could

not consider the statement by the accused “unless you believe from the evidence beyond a

reasonable doubt that the alleged confession or statement introduced into evidence was freely

and voluntarily made by the defendant without compulsion or persuasion, or if you have a

reasonable doubt thereof, you shall not consider such alleged statement or confession for any

purpose nor any evidence obtained as a result thereof.” Id. at 237 n.1.

               More importantly, we note that unlike the instruction in Mendoza, the

supplemental instruction in this case did not ask the jury to consider any specific fact pattern or

pieces of evidence when assessing whether McMichael’s statement was voluntarily made and

instead provided general instructions to aid the jury in determining the voluntariness of the

statement. Cf. Oursbourn v. State, 259 S.W.3d 159, 173-74 (Tex. Crim. App. 2008) (distinguishing

general instructions available under sections 6 and 7 of article 38.22 from specific “fact-based”

instructions under article 38.23 asking jury to first determine whether specific event occurred

before deciding whether defendant’s statement may be considered). Further, the supplemental

charge addressed concerns outlined in article 38.21, which specifies that a suspect’s statement

                                                7
may only be used “if it appears that the same was freely and voluntarily made without

compulsion or persuasion.” See Tex. Code Crim. Proc. art. 38.21. The Court of Criminal Appeals

has explained that the concerns set out in article 38.21 fall within the purview of section 6

of article 38.22. Cf. Oursbourn, 259 S.W.3d at 172. In addition, the language used in the

supplemental instruction is a correct statement of the law.           In fact, when preparing the

supplemental instruction, the district court quoted language from a case by the Supreme Court

that the Court of Criminal Appeals has also relied on. See Leza v. State, 351 S.W.3d 344, 349

(Tex. Crim. App. 2011) (quoting Colorado v. Spring, 479 U.S. 564, 573 (1987)); see also Joseph

v. State, 309 S.W.3d 20, 25 (Tex. Crim. App. 2010) (relying on same language).

               For these reasons, we reject McMichael’s assertion that the supplemental

instruction was an impermissibly specific instruction that did not comply with article 38.22 and

instead conclude that the instruction was a general voluntariness instruction that the district court

added in its discretion to provide additional assistance to the jury. Cf. Mendoza, 88 S.W.3d at

240 (noting that trial courts have discretion to determine “whether, in a given case, . . . additional

guidance” beyond instructions found in article 38.22 should be given regarding when statement

is voluntarily made); Daniell, 848 S.W.2d at 147 (noting that if instruction could have been

given as part of original charge, it may be given as supplemental instruction).

               In his next set of arguments, McMichael contends that even if the supplemental

instruction was a general one as contemplated by article 38.22, the instruction was still erroneous

because it “was an impermissible comment on the weight of the evidence effectively negating

[his] defensive strategy.” More specifically, McMichael urges that the original charge instructed

the jury that when making a decision regarding the voluntariness of his statement, they were to

consider whether “prior to making the statement” he “received from the person to whom the

                                                  8
statement is made” the statutory warnings set out in article 38.22. Further, McMichael points to

the evidence on the recording demonstrating that none of the New Braunfels police officers read

McMichael the article 38.22 warnings.

               In light of the preceding, McMichael urges that the supplemental instruction

“supplanted the language of the original charge that contained the very unambiguous statement

that the 38.22 warnings must be given by the person who takes the statement,” ordered the jury

to assume that the requirement from 38.22 had been complied with, and made an improper

comment on the weight of the evidence. In other words, McMichael insists that the supplemental

instruction directed the jury “to disregard the original charge,” to decide whether the statement

was voluntary exclusively under the non-statutory definition in the supplemental instruction

rather than the statutory directives from article 38.22, and to reject his “defensive theory that

the New Braunfels Police should have read . . . the 38.22 warnings” before questioning him.

Moreover, McMichael contends that the supplemental instruction contained “powerful words”

like “intimidation, coercion, and deception” and that the inclusion of those words could have

improperly “excite[d] the passion of the jury” and made the jury angry at him because there was

no evidence “of any egregious conduct by law enforcement.” Cf. Bartlett v. State, 270 S.W.3d 147,

150 (Tex. Crim. App. 2008) (stating that “[a]s a general rule, a trial court shall deliver to the jury

a written charge distinctly setting forth the law applicable to the case; it should not express any

opinion as to the weight of the evidence, sum up the testimony, discuss the facts, or use any

argument in its charge calculated to arouse the sympathy or excite the passions of the jury”).2


       2
          The requirement regarding the need for a statement to be made to the person who
provided the statutory warnings is found in section 2 of article 38.22. See Tex. Code Crim. Proc.
art. 38.22, § 2. That provision applies to written statements, sets out the various Miranda-like
statutory warnings that must have been read to an individual before his written statement may be
admitted, and specifically states that before the statement can be admitted, “the accused, prior to
                                                  9
               We disagree with McMichael’s construction of the supplemental instruction.

Nothing in the language of the additional instruction directed the jury to disregard the language

of the original charge pertaining to the voluntariness of McMichael’s statement. On the contrary,

the supplemental instruction referenced the original charge and emphasized that the jury was to

use the “factors” set out in the charge when making its “determination of the voluntariness of”

McMichael’s statement. Moreover, as set out above, the supplemental instruction addressed the

voluntary requirements set out in article 38.21 requiring that a statement be “freely and

voluntarily made without compulsion or persuasion,” see Tex. Code Crim. Proc. art. 38.21, and

used language similar to that endorsed by the Court of Criminal Appeals, see Rocha v. State,

16 S.W.3d 1, 20 (Tex. Crim. App. 2000) (noting that jury charge provided instruction that “[a]

statement of an accused may be used against him if it appears that the same was freely and

voluntarily made without compulsion or persuasion” and that instruction tracked language of

statute); see also Roberson v. State, 113 S.W.3d 381, 385 (Tex. App.—Fort Worth 2003, pet.

ref’d) (determining that trial court did not err by preparing “supplemental charge that contained

making the statement,” must have received those warnings “from the person to whom the
statement is made.” Id. (emphasis added). For oral statements, section 3 of article 38.22 sets out
the requirements that must have been met before those types of statements may be admitted. See
id. art. 38.22, § 3. Although section 3 incorporates the requirement that the warning contemplated
by section 2 be given, the Court of Criminal Appeals has expressly held “that the language in
Article 38.22 § 2(a), requiring warnings to be given by the person ‘to whom the statement is
made,’ does not apply to oral statements but applies only to written statements.” See Dowthitt v.
State, 931 S.W.2d 244, 258 (Tex. Crim. App. 1996); see id. (explaining that “[w]hile § 3 requires
that the warnings contained in § 2(a) be given, it does not require that all provisions of § 2(a) be
met”); see also Villarreal v. State, 61 S.W.3d 673, 679 (Tex. App.—Corpus Christi 2001, pet.
ref’d) (explaining that portion of section 2 requiring that warnings be given by person ultimately
receiving statement “does not apply to oral statements, but applies only to written statements”).
Because the statement at issue was an oral recorded statement given to the police, the same-
person requirement from section 2 did not apply to this case even though it was included in
the jury charge. Accordingly, McMichael was given the benefit of an instruction and a defensive
issue that he was not entitled to. However, given our ultimate resolution that the inclusion of
the supplemental instruction did not constitute jury-charge error, we need not further address
this issue.
                                                10
a proper statement on the law of burglary” in response to jury note). Furthermore, we can see

nothing in the general language of the supplemental instruction that persuades us that the

words chosen could have improperly excited the passion of the jury against McMichael in the

circumstances present here.

               In his brief, McMichael refers to Kirsch v. State, 357 S.W.3d 645 (Tex. Crim.

App. 2012), as support for his assertion that the supplemental instruction was an impermissible

comment on the evidence. In that case, the Court of Criminal Appeals noted that a trial court’s

inclusion of a definition for an undefined statutory term “in a jury charge may constitute an

improper comment on the weight of the evidence.” Id. at 651. Further, the court concluded that

the trial court’s definition of the term “‘operate’ as ‘to exert personal effort to cause the vehicle

to function’” was error because the definition “impermissibly guided” the jury’s “understanding

of the term” rather than allowing the jury “to assign that term” its common meaning. Id. at 652.

In addition, the court explained that “the definition emphasizes evidence tending to show

‘personal effort’ toward causing the vehicle to function over evidence that would tend to

show ‘merely preparatory attempts to start the motorcycle’” and, thereby, improperly focused

“the jury on the type of evidence that would support a finding that appellant was operating his

motorcycle.” Id.

               Although we recognize the concerns identified by the Court of Criminal Appeals

in Kirsch, we do not believe that the supplemental instruction explaining that a statement is

voluntary when it “is the product of free and deliberate choice rather than intimidation,

coercion[,] or deception” and that a waiver of the right against self-incrimination is effective if

it is “made with full awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it” carried the same risk of improperly focusing the jury

                                                 11
on particular types of evidence to the exclusion of other evidence pertaining to whether

McMichael’s statement was voluntarily given as set out under article 38.22, in part, because the

supplemental instructions reminded the jury to consider the article 38.22 factors listed in the

original jury charge when deciding whether his statement was voluntary and whether the jury

could consider it when deciding his guilt. Cf. Bartlett v. State, 270 S.W.3d 147, 149, 152, 154

(Tex. Crim. App. 2008) (determining that instruction to jury that State may introduce evidence

“that defendant was offered and refused a breath test” and that jury could consider defendant’s

refusal to provide breath sample when “deciding the question of guilt or innocence” constituted

“an improper comment on the weight of the evidence”).

               In his final set of arguments regarding the alleged jury-charge error, McMichael

contends that the district court’s supplemental instruction constituted jury-charge error because it

did not specifically answer the jury’s legal question. In particular McMichael notes that the jury

asked whether the Miranda warnings “need to be read to a defendant for each interview of a law

enforcement agent under the same arrest” and then asked to view the recording of McMichael’s

interview if the answer to its question was “yes.” Because the district court’s supplemental

instruction did not mention the recording and because the recording was not delivered to the jury,

McMichael contends that the district court made an improper comment on the weight of the

evidence and essentially instructed the jury to disregard his defensive theory that the New

Braunfels police officers were required to but did not read the article 38.22 warnings before

questioning him.

               However, as set out above, the supplemental instruction made no comment of any

kind regarding the recording of McMichael’s interview or on any other evidence presented at

trial and did not answer the jury’s question regarding whether Miranda warnings needed to be

                                                12
provided by the New Braunfels police department before they questioned him. In essence, the

district court instructed the jury to consider the law that had already been given to them in the

original charge when making their determination along with the general directives on voluntary

statements included in the supplemental instruction. Accordingly, we conclude that the district

court’s response did not constitute an improper comment on the weight of any evidence.

               For all the reasons previously given, we conclude that the inclusion of the

supplemental instruction did not constitute jury-charge error and, accordingly, overrule

McMichael’s issue on appeal. See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015)

(explaining that appellate courts need only address issue of harm if they first determine that there

was error in jury charge).


                                         CONCLUSION

               Having overruled McMichael’s issue on appeal, we affirm the district court’s

judgment of conviction.



                                              __________________________________________
                                              Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed

Filed: August 29, 2019

Do Not Publish




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