Affirmed and Memorandum Opinion filed February 4, 2020.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-18-00171-CR

                KYON ARSHAWNTO MITCHELL, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 400th District Court
                           Fort Bend County, Texas
                    Trial Court Cause No. 15-DCR-072012C

                  MEMORANDUM OPINION

      Appellant was arrested for charges stemming from a family violence
incident. After trial, the jury found Appellant guilty of the misdemeanor offense of
deadly conduct and the felony offense of aggravated assault with a deadly weapon.
In two issues, Appellant challenges the trial court’s denials of his motion to
suppress evidence and motion to quash the indictment. For the reasons below, we
affirm.
                                  BACKGROUND

      During an altercation between Appellant, Complainant (Appellant’s wife),
and Complainant’s daughter, Appellant was stabbed by Complainant’s daughter.
Appellant was transported to the hospital with a knife lodged in his back. While at
the hospital, Appellant spoke with Detective Justin White regarding the incidents
preceding the stabbing. Detective White recorded his interview with Appellant.

      Appellant told Detective White that he and Complainant were intoxicated
when they started arguing. Appellant said they started shoving and pushing each
other and they both fell to the ground.      Appellant said he was stabbed by
Complainant’s daughter while he and Complainant were on the ground.

      Appellant was discharged from the hospital the same evening and, the
following day, he returned to the house he shared with Complainant. Officers
arrived at the house and arrested Appellant for a separate open warrant. While he
was in jail, Appellant was arrested for charges arising from the incident with
Complainant.

      Appellant filed a motion to quash the indictment and a motion to suppress
the audio recording of his hospital interview with Detective White. The trial court
denied both motions. Appellant proceeded to a jury trial on two counts of felony
aggravated assault.   The jury returned guilty verdicts for the lesser-included
misdemeanor offense of deadly conduct and for the felony offense of aggravated
assault with a deadly weapon. See Tex. Penal Code Ann. §§ 22.02(a)(2), 22.05(a)
(Vernon 2019). The trial court assessed punishment at one year confinement for
the first count and nine years’ confinement for the second count. Appellant timely
appealed.




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                                      ANALYSIS

       Appellant asserts the trial court erred by denying (1) his motion to suppress
 the audio recording of his interview with Detective White, and (2) his motion to
 quash the indictment.

I.     Motion to Suppress

       Citing Texas Code of Criminal Procedure articles 38.21 and 38.22,
 Appellant argues the trial court’s denial of his motion to suppress constitutes an
 abuse of discretion because his decision to participate in the interview with
 Detective White was not voluntary.

       A.     Standard of Review and Governing Law

       We review a trial court’s ruling on a motion to suppress evidence under a
 bifurcated standard. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App.
 2013); Hauer v. State, 466 S.W.3d 886, 890 (Tex. App.—Houston [14th Dist.]
 2015, no pet.). First, we afford almost total deference to the trial judge’s findings
 of historical fact as well as mixed questions of law and fact that turn on an
 evaluation of credibility and demeanor. Abney v. State, 394 S.W.3d 542, 547 (Tex.
 Crim. App. 2013); Hauer, 466 S.W.3d at 890. The trial judge is the sole judge of a
 witness’s credibility and the weight given to the witness’s testimony. Ex parte
 Moore, 395 S.W.3d 152, 158 (Tex. Crim. App. 2013).

       Where, as here, the trial judge makes express findings of fact, we view the
 evidence in the light most favorable to her ruling and determine whether the
 evidence supports the factual findings. Valtierra v. State, 310 S.W.3d 442, 447
 (Tex. Crim. App. 2010). Unless the trial court abused its discretion by making a
 finding not supported by the record, we defer to the trial court’s fact findings and
 do not disturb those findings on appeal. State v. Rodriguez, 521 S.W.3d 1, 8 (Tex.

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Crim. App. 2017).

      We review de novo the trial court’s application of the law to the facts.
Valtierra, 310 S.W.3d at 447. We sustain the trial court’s ruling if it is reasonably
supported by the record and is correct on any theory of law applicable to the case.
Id. at 447-48.

      The statement of an accused may be used against him if the statement was
freely and voluntarily made without compulsion or persuasion. Tex. Code Crim.
Proc. Ann. art. 38.21 (Vernon 2005). When the voluntariness of a statement is
challenged, the trial court must make an independent determination as to whether
the statement was voluntarily made. Id. art. 38.22, § 6 (Vernon Supp. 2017); see
also Oursbourn v. State, 259 S.W.3d 159, 180 (Tex. Crim. App. 2008). The
burden is on the State to show by a preponderance of the evidence that the
statement was voluntarily made. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.
Crim. App. 1995); Avellaneda v. State, 496 S.W.3d 311, 316 (Tex. App.—Houston
[14th Dist.] 2016, no pet.).

      Pursuant to this standard, a statement is “involuntary” only if “there was
official, coercive conduct of such a nature that any statement obtained thereby 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 test is whether the
defendant’s will was “overborne” by police coercion.         Creager v. State, 952
S.W.2d 852, 856 (Tex. Crim. App. 1997); Coleman v. State, 440 S.W.3d 218, 223
(Tex. App.—Houston [14th Dist.] 2013, no pet.). To make this determination, we
examine the totality of the circumstances under which the statement was made.
Avellaneda, 496 S.W.3d at 316. In addition to any allegedly coercive police
conduct, we also may consider factors such as the defendant’s youth, intoxication,
intellectual disability, or other disability. Oursbourn, 259 S.W.3d at 172; Umana

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v. State, 447 S.W.3d 346, 350 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

      B.     Application

      Presuming Appellant preserved error with respect to this issue, the trial
court’s denial of his motion to suppress did not constitute an abuse of discretion.

      Two witnesses testified at the hearing on Appellant’s motion: Deputy
Anthony La Rosae and Detective White. Deputy La Rosae said he drove to
Appellant’s house in response to a police dispatch regarding a possible stabbing or
weapon-involved disturbance. After he arrived at the house, Deputy La Rosae saw
Appellant sitting on the ground while being attended to by EMS personnel.
Deputy La Rosae did not speak to Appellant before Appellant was life-flighted
from the scene. Deputy La Rosae remained at the house and took statements from
Complainant and her daughter.

       The same night, Detective White was dispatched to the hospital to interview
Appellant. Before meeting with Appellant, the only information Detective White
had received was “that there had been a family violence incident at a residence”
and that Appellant had been stabbed. Detective White was not told to arrest
Appellant or informed that Appellant would be arrested.

      After arriving at the hospital, Detective White spoke to Appellant’s nurses,
who told him that Appellant was in stable condition and in no life-threatening
danger. Detective White was told the knife in Appellant’s back had been removed
using local anesthetic.

      When he met with Detective White, Appellant was located in a private
hospital room and was not hooked up to any machines. Doctors and nurses entered
and left Appellant’s room while Detective White was present. Detective White
said he “introduced himself” and told Appellant he “wanted to get a statement from

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[Appellant] regarding what happened at the residence and take pictures of his
wound.” Appellant said he would give Detective White a statement. Detective
White provided the following description of his conversation with Appellant:

        •     Detective White met with Appellant one-on-one for about 30-45
              minutes.
        •     Detective White felt that Appellant was “comfortable” speaking with
              him. Detective White said he did not force Appellant or tell Appellant
              that he was obligated to provide a statement.
        •     Appellant did not seem confused and volunteered information.
        •     Appellant “seem[ed] to understand” Detective White and gave
              appropriate responses.
        •     Appellant’s speech was slurred and Detective White smelled alcohol.
              Appellant told Detective White he was intoxicated.

The audio recording of Appellant’s conversation with Detective White also was
admitted at the suppression hearing. In the tape, Appellant provides a narrative
regarding the events that had occurred that night.         Appellant said he and
Complainant both were drinking when their argument escalated and they began
shoving each other. In the recording, Appellant is coherent; provides an orderly
description of events; and responds appropriately to Detective White’s questions.
Several times during the recording, Appellant states that he wants certain
statements “on the record.” The recording does not suggest that Appellant was
forced or compelled to speak with Detective White.

        After the close of evidence, the trial court made the following findings of
fact:

        •     Deputy La Rosae and Detective White are credible witnesses.
        •     Before meeting with Appellant at the hospital, Detective White was
              told Appellant (1) received non-life-threatening injuries; (2) had a
              knife blade removed using local anesthetic; and (3) would be
              discharged that evening.
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      •      Detective White informed Appellant of the reason for his presence
             and Appellant voluntarily provided a statement.
      •      Detective White did not coerce or threaten Appellant to make a
             statement.
      •      Detective White observed Appellant speaking coherently, providing
             appropriate answers, and contributing thoughts and information in a
             logical fashion.
The trial court concluded Appellant’s statements to Detective White at the hospital
were freely and voluntarily given.

      Viewing the evidence in the light most favorable to these findings, we
conclude they are adequately supported by the record. The only witnesses that
testified at the suppression hearing were Deputy La Rosae and Detective White —
no evidence was admitted that would counsel again the trial court’s findings. The
audio recording also supports the trial court’s findings and indicates Appellant’s
statements were not the product of coercive police conduct. Deferring to these
findings, the trial court’s ultimate conclusion that Appellant’s statements were
freely and voluntarily made is reasonably supported by the record and does not
constitute an abuse of discretion.

      Appellant argues that his statements were not freely given because he was
“medicated by anesthesia and intoxicated with alcohol.” But the record indicates
that only a local anesthetic was used to remove the knife in Appellant’s back — the
evidence does not suggest this would have impaired Appellant’s ability to
participate in the interview. The record does not show Appellant was on any other
medication when he spoke with Detective White.

      Detective White acknowledged that Appellant appeared intoxicated and
Appellant stated on the audio recording that he was intoxicated. But Appellant
does not cite any case law or other authority showing that intoxication alone

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  renders a statement involuntary. Rather, for this determination, we examine the
  totality of the circumstances under which the statement was made.              See
  Avellaneda, 496 S.W.3d at 316.       Here, the other circumstances surrounding
  Appellant’s interview adequately support the trial court’s conclusion that
  Appellant’s statements were freely and voluntarily made.

        We overrule Appellant’s first issue.

II.     Motion to Quash the Indictment

        Arguing the trial court erred in denying his motion to quash, Appellant
  asserts the indictment lacked specificity as to the manner and means in which the
  charged offenses were committed. The indictment states as follows:

                                       Count I

        Paragraph A
        in a bedroom, [Appellant] did then and there intentionally or
        knowingly threaten [Complainant] with imminent bodily injury while
        using or exhibiting a deadly weapon, to wit: [Appellant’s] hand or
        hands, during the commission of said assault, and [Complainant] was
        a member of the [Appellant’s] family, household, or person with
        whom the [Appellant] had a dating relationship;
        Paragraph B
        in a bedroom, [Appellant] did then and there intentionally or
        knowingly threaten [Complainant] with imminent bodily injury while
        using or exhibiting a deadly weapon, to wit: a comb, during the
        commission of said assault, and [Complainant] was a member of
        [Appellant’s] family, household, or person with whom the [Appellant]
        had a dating relationship;
                                       Count II
        Paragraph A
        in or near the garage, [Appellant] did then and there intentionally or
        knowingly threaten [Complainant] with imminent bodily injury while
        using or exhibiting a deadly weapon, to wit: [Appellant’s] hand or

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      hands, during the commission of said assault, and [Complainant] was
      a member of the [Appellant’s] family, household, or person with
      whom the [Appellant] had a dating relationship;

      Paragraph B
      in or near the garage, [Appellant] did then and there intentionally or
      knowingly threaten [Complainant] with imminent bodily injury while
      using or exhibiting a deadly weapon, to wit: a comb, during the
      commission of said assault, and [Complainant] was a member of
      [Appellant’s] family, household, or person with whom the [Appellant]
      had a dating relationship;

Appellant contends the indictment fails to specify whether he “in fact used a
deadly weapon” or “merely exhibited a deadly weapon.”

      A.     Standard of Review and Governing Law
      The sufficiency of an indictment is a question of law we review de novo.
State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).

      An accused is entitled to fair notice of the charged offense. Tex. Const. art.
1, § 10. The charging instrument must sufficiently convey this notice so the
accused may prepare his defense and should set forth the offense “in plain and
intelligible words.” Tex. Code. Crim. Proc. Ann. art. 21.02(7) (Vernon 2009);
State v. Barbernell, 257 S.W.3d 248, 250 (Tex. Crim. App. 2008). An indictment
is sufficient if it charges the commission of an offense “in ordinary and concise
language of common understanding to know what is meant, and with that degree of
certainty that will give the defendant notice of the particular offense with which he
is charged.” Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 2009).

      Generally, an indictment is legally sufficient if it tracks the language of the
statute in question. Moff, 154 S.W.3d at 602. An indictment must go beyond the
statutory language only when the statute is “not completely descriptive of the
offense.” State v. Stukes, 490 S.W.3d 571, 574 (Tex. App.—Houston [14th Dist.]

                                         9
2016, no pet.). The statutory language is not completely descriptive if it uses an
undefined term of indeterminate or variable meaning. Barbernell, 257 S.W.3d at
251. Likewise, when a statute defines the manner or means of commission in
several alternative ways, an indictment will fail for lack of specificity if it does not
identify which of the statutory means it addresses. Stukes, 490 S.W.3d at 574. But
an indictment is not insufficient if “the information requested in a motion to quash
is essentially evidentiary in nature rather than being required for purposes of
notice.” Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986); see also
Murillo v. State, No. 14-10-01067-CR, 2011 WL 3359690, at *1-2 (Tex. App.—
Houston [14th Dist.] Aug. 4, 2011, no pet.) (mem. op., not designated for
publication) (indictment charging appellant with the misdemeanor offense of
interference with public duties not required to allege “the specific duty the officer
was performing at the time of the alleged unlawful conduct”).

      B.      Application

      The trial court did not err by denying Appellant’s motion to quash the
indictment.

      The indictment sufficiently tracks the language of the applicable statutes.
Aggravated assault with a deadly weapon is defined as follows:

      (a) A person commits an offense if the person commits assault as
          defined in § 22.01 and the person: . . .
           (2) uses or exhibits a deadly weapon during the commission of the
               assault.

Tex. Penal Code Ann. § 22.02(a)(2). Section 22.01 states that a person commits
assault if the person “intentionally or knowingly threatens another with imminent
bodily injury.” Id. § 22.01(a)(2) (Vernon 2019). Tracking these provisions, the
indictment    stated   Appellant     “intentionally    or   knowingly      threaten[ed]

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[Complainant] with imminent bodily injury while using or exhibiting a deadly
weapon.”

      Appellant argues the indictment should have specified whether he “used” or
“exhibited” a deadly weapon, but Appellant does not cite any case law or other
authority that supports this contention. Other cases considering similarly-worded
indictments have found this language sufficient to provide notice of the charged
offense. See, e.g., St. Clair v. State, 26 S.W.3d 89, 94 (Tex. App.—Waco 2000,
pet. ref’d) (indictment stating that the defendant “did use or exhibit a deadly
weapon during the commission of the assault, to-wit: a motor vehicle” legally
sufficient); see also Galvan v. State, No. 10-13-00407-CR, 2014 WL 6872901, at
*4 (Tex. App.—Waco Nov. 26, 2014, pet. ref’d) (mem. op., not designated for
publication); Edmondson v. State, No. 11-99-00123-CR, 2000 WL 34233044, at *2
(Tex. App.—Eastland July 20, 2000, no pet.) (per curiam) (not designated for
publication).   Moreover, whether a threat was conveyed via the “use” or the
“exhibition” of a deadly weapon is an evidentiary issue not necessary for purposes
of notice. See Moreno, 721 S.W.2d at 300; Murillo, 2011 WL 3359690, at *2.

      We overrule Appellant’s second issue.

                                   CONCLUSION

      We affirm the trial court’s final judgment.




                                      /s/     Meagan Hassan
                                              Justice


Panel consists of Justices Zimmerer, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).

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