                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-258-CR


QUINCY PAUL JONES                                                 APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

                                    ------------

           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

  MEMORANDUM OPINION 1 ON APPELLANT’S PETITION FOR
             DISCRETIONARY REVIEW

                                    ------------

      Pursuant to Texas Rule of Appellate Procedure 50, we withdraw our

November 12, 2009 opinion and judgment and substitute the following. See

Tex. R. App. P. 50. We write to address appellant Quincy Paul Jones’s claim

on petition for discretionary review that, in our prejudice analysis of Jones’s




      1
          … See Tex. R. App. P. 47.4.
speedy trial claim, we erroneously refused to consider his argument that the

delay in his trial resulted in an increased punishment range.

                                I. INTRODUCTION

      Appellant Quincy Paul Jones appeals his conviction for two counts of

sexual assault of a child. In two points, Jones argues that the trial court erred

by denying his motion to dismiss for violation of his right to a speedy trial and

by overruling his objection to the voluntariness of his confession.     We will

affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      In 2004, Jones lived with his then-girlfriend M.B., their daughter, and

M.B.’s two other children in Tarrant County. Jones later moved to Muncie,

Indiana. In December 2005, over a year after Jones moved out, M.B.’s fifteen-

year-old daughter K.L. told M.B. that Jones had sexually assaulted her on

multiple occasions when he lived with them. M.B. called the Mansfield police

department.    Mansfield police obtained a warrant for Jones’s arrest and

contacted the police department in Muncie, Indiana.        Muncie child abuse

investigator Sergeant Darrin Clark went to Jones’s last known address, and

when no one answered, he left his business card. He also contacted Jones’s

probation officer Heather Pierce and explained that he needed to speak with

Jones regarding some allegations against him in Texas. Pierce told Jones that

                                       2
he “needed to cooperate with the Muncie Police Department.” Jones complied,

and during an interview at the Muncie police station on February 14, 2006, he

admitted to the sexual assault and was arrested.

      Jones remained in jail from the time of his arrest on February 14, 2006,

until his jury trial on July 15, 2008.      Seven months after his arrest, and

although represented by court-appointed counsel, Jones filed a pro se

application for writ of habeas corpus, claiming that his constitutional right to a

speedy trial had been violated.

      Trial was then set for October 24, 2006, November 6, 2006, March 5,

2007, and June 4, 2007. Although neither the State nor Jones filed motions

for continuances or announced not ready for trial, trial was not held on any of

those dates.

      On June 4, 2007, the trial court allowed Jones’s appointed attorney to

withdraw due to a conflict with Jones, and four days later, the court appointed

new counsel for Jones. Trial was then set for August 20, 2007, November 5,

2007, and February 4, 2008, but trial was not held on those dates. Again,

neither the State nor Jones filed motions for continuances or announced not

ready for trial.

      On June 5, 2008, Jones filed a pro se “Plea of M[ercy],” in which he

asked the court for “help in speedy completion” of his trial. Approximately one

                                        3
month later, and twenty-nine months after Jones’s arrest, his attorney filed a

motion to dismiss for failure to grant a speedy trial.

      Jury selection began four days later on July 15, 2008. The following

day, the trial court conducted a pre-trial hearing on Jones’s motion to dismiss

and denied the motion. The jury ultimately found Jones guilty of both counts

and assessed Jones’s punishment for each count at thirty-five years’

imprisonment and a $6,000.00 fine. The trial court ordered the sentences to

run concurrently.

                                III. S PEEDY T RIAL

      In his first point, Jones argues that the trial court’s denial of his motion

to dismiss violated his right to a speedy trial under the United States and Texas

Constitutions.

                        A. The Right to a Speedy Trial

      The Sixth Amendment to the United States Constitution and article 1,

section 10 of the Texas Constitution guarantee an accused the right to a

speedy trial. See U.S. Const. amend. VI; Tex. Const. art. I, § 10; see also

Zamorano v. State, 84 S.W.3d 643, 647 (Tex. Crim. App. 2002); Orand v.

State, 254 S.W.3d 560, 565 (Tex. App.—Fort Worth 2008, pet. ref’d). Texas

courts analyze claims of a denial of this right, both under the federal and state



                                        4
constitutions, the same. See Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim.

App.), cert. denied, 506 U.S. 942 (1992).       In Barker v. Wingo, the United

States Supreme Court qualified the literal sweep of the right to a speedy trial

by analyzing the constitutional question in terms of four specific factors:

      (1)   whether the delay before trial was uncommonly long;

      (2)   whether the government or the criminal defendant is more to
            blame for the delay;

      (3)   whether in due course, the defendant asserted his right to a
            speedy trial; and

      (4)   whether the defendant suffered prejudice as a result of the
            delay.

407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). Under Barker, courts must

analyze federal constitutional speedy trial claims by first weighing the strength

of each of the above factors and then balancing their relative weights in light

of the conduct of both the prosecution and the defendant.         Zamorano, 84

S.W.3d at 648. None of the four factors is either a necessary or sufficient

condition to the finding of a deprivation of the right to a speedy trial; instead,

all must be considered together along with any other relevant circumstances.

Id. No one factor possesses “talismanic qualities”; thus, courts must “engage

in a difficult and sensitive balancing process” in each individual case.       Id.

(quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193).


                                        5
                                B. Standard of Review

      In reviewing the trial court’s ruling on a speedy trial claim, we apply a

bifurcated standard of review: an abuse of discretion standard for the factual

components and a de novo standard for the legal components. Id. Review of

the individual Barker factors necessarily involves factual determinations and

legal conclusions, but the balancing test as a whole is a purely legal question.

Cantu v. State, 253 S.W.3d 273, 282 (Tex. Crim. App. 2008).

      Under this standard, we defer not only to a trial judge’s resolution of

disputed facts, but also to the trial judge’s right to draw reasonable inferences

from those facts.        Id. at 281.   In assessing the evidence at a speedy trial

hearing, the trial judge may completely disregard a witness’s testimony, based

on   credibility   and    demeanor     evaluations,   even   if   that   testimony   is

uncontroverted. Id. The trial judge may disbelieve any evidence so long as

there is a reasonable and articulable basis for doing so. Id. And all of the

evidence must be viewed in the light most favorable to the trial judge’s ultimate

ruling. Id.

                          C. Analysis of the Barker Factors

                                  1. Length of Delay




                                           6
      The length of delay is a “triggering mechanism” for analysis of the other

Barker factors. Barker, 407 U.S. at 530–32, 92 S. Ct. at 2192–93; Zamorano,

84 S.W.3d at 648. Depending on the nature of the charges, a postaccusation

delay of about one year is “presumptively prejudicial” for purposes of the

length-of-delay factor. Doggett v. United States, 505 U.S. 647, 652 n.1, 112

S. Ct. 2686, 2691 n.1 (1992). If the accused shows that the interval between

accusation and trial has crossed the threshold dividing “ordinary” from

“presumptively prejudicial” delay, then the court must consider, as one factor

among several, the extent to which that delay stretches beyond the bare

minimum needed to trigger judicial examination of the claim. Zamorano, 84

S.W.3d at 649 (quoting Doggett, 505 U.S. at 652, 112 S. Ct. at 2690–91).

This second inquiry is significant to the speedy trial analysis because the

“presumption that pretrial delay has prejudiced the accused intensifies over

time.” Id.

      The State here concedes that the twenty-nine-month delay between

Jones’s arrest and trial weighs in Jones’s favor and triggers an analysis of the

remaining Barker factors. Furthermore, because the delay stretched well over

twice the length of time needed to trigger the inquiry, this factor weighs heavily

in favor of Jones. See, e.g., Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim.



                                        7
App. 2003) (holding delay of thirty-eight months weighed heavily in appellant’s

favor); Rodriquez v. State, 227 S.W.3d 842, 844 (Tex. App.—Amarillo 2007,

no pet.) (holding delay of thirty-two months between arrest and trial weighed

heavily against the State).

                           2. Reasons for the Delay

      The second factor—reasons for the delay—seeks to ensure that courts do

not simply concentrate on the sheer passage of time without taking into

account the reasons underlying the delay. See Rashad v. Walsh, 300 F.3d 27,

34 (1st Cir. 2002), cert. denied, 537 U.S. 1236 (2003). Under Barker,

“different weights should be assigned to different reasons” for the delay. 407

U.S. at 531, 92 S. Ct. at 2192. The inquiry into causation involves a sliding

scale: deliberately dilatory tactics must be weighed more heavily against the

State than periods of delay resulting from negligence. Id. Furthermore, valid

reasons for delay should be weighed only slightly, if at all, against the State.

State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999).

      Like the first factor, the State also concedes that this factor weighs in

Jones’s favor, although “only ‘slightly.’” At the hearing on Jones’s motion to

dismiss, the trial court’s court coordinator testified that the State had never

failed to announce ready for trial at any of the trial settings or moved for a



                                        8
continuance.   She explained that the trial court is a busy court and had

approximately 1,600 cases pending at that time. The court coordinator could

not testify as to why Jones’s trial had been reset so many times but said it was

conceivable that it was reset because other defendants could have been in

custody longer than Jones, thus giving their cases preference over his.

      Although a neutral reason such as an overcrowded docket weighs less

heavily against the State, it should nevertheless be considered because the

ultimate responsibility for bringing cases to trial in a timely manner rests with

the government.    Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Parkerson v.

State, 942 S.W.2d 789, 791 (Tex. App.—Fort Worth 1997, no writ).

However, because no evidence exists here that the State used deliberately

dilatory tactics, we agree with the State that this factor weighs only slightly

against the State. See, e.g., Murphy v. State, 280 S.W.3d 445, 453 (Tex.

App.—Fort Worth 2009, pet. ref’d) (holding second factor did not weigh heavily

against State when no evidence existed that State used purposeful dilatory

tactics).

                           3. Assertion of the Right

      We next consider the extent to which Jones affirmatively sought a

speedy trial. Barker, 407 U.S. at 531–32, 92 S. Ct. at 2192. The nature of



                                       9
the speedy trial right makes it “impossible to pinpoint a precise time in the

process when the right must be asserted or waived, but that fact does not

argue for placing the burden of protecting the right solely on defendants.” Id.

at 527, 92 S. Ct. at 2190.      The right to a speedy trial “is constitutionally

guaranteed and, as such, is not to be honored only for the vigilant and the

knowledgeable.” Id. at 527 n.27, 92 S. Ct. at 2190 n.27 (quoting Hodges v.

United States, 408 F.2d 543, 551 (8th Cir. 1969)).

      Whether and how a defendant asserts this right is closely related to the

other three factors because the strength of the defendant’s efforts will be

shaped by them. Id. at 531, 92 S. Ct. at 2192. Filing for a dismissal instead

of a speedy trial generally weakens a speedy trial claim because it may show

a desire to have no trial instead of a speedy one. Cantu, 253 S.W.3d at 283.

      In this case, Jones first asserted his right to a speedy trial approximately

six months after he was arrested by filing an application for writ of habeas

corpus. The State argues that the application for writ of habeas corpus is not

“the proper starting point from which to measure [Jones’s] assertion of his

speedy trial right” because Jones attached it to the end of a motion to reduce

bail and because he asserted the violation of his right to a speedy trial as his




                                       10
third and final ground for habeas relief—“buried in the last substantive

paragraph of this eleven-page bail reduction motion.” 2




      Nevertheless, Jones specifically alleged in that application,

      I have been incarcerated for over 200 days without a trial date or
      trial being conducted and request a hearing to hear my right to be
      released on bail . . . . My constitutional right to a speedy trial [has]
      been violated.

Although he did not directly request a speedy trial, he asserted a violation of his

right to a speedy trial, and he did not request dismissal for failure to grant a

speedy trial. See Cantu, 253 S.W.3d at 283; Phillips v. State, 650 S.W.2d

396, 401 (Tex. Crim. App. 1983) (“[A] defendant’s motivation in asking for

dismissal rather than a prompt trial is clearly relevant, and may sometimes

attenuate the strength of his claim.”).




      2
        … Jones requested that his bail be reduced from $50,000 to $5,000,
and the trial court ultimately ruled on his motion by reducing his bail to
$35,000. Although Jones was not entitled to hybrid representation, we can
consider this pro se motion on appeal. See Robinson v. State, 240 S.W.3d
919, 923 (Tex. Crim. App. 2007) (holding that trial court is free to disregard
pro se motions of a defendant represented by counsel, but that once a court
chooses to rule on such motions, those decisions are reviewable); Webb v.
State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976) (holding that although a
criminal defendant does not have the right to hybrid representation, a patient
trial judge may permit it).

                                        11
       Over twenty months later, Jones again asserted his right to a speedy trial

in his pro se “Plea of M[ercy],” in which he stated that he was “not sure” if his

right to a speedy trial had been waived by his appointed counsel or by himself

and that he would never waive that right and asked the court for “help in

speedy completion.” Trial was ultimately set for the following month, providing

some evidence that the trial court considered his pro se motion. See Robinson,

240 S.W.3d at 923. Assuming the trial court considered this motion, thus

making it subject to review, Jones did not request a hearing on his request for

a speedy trial. See Cook v. State, 741 S.W.2d 928, 940 (Tex. Crim. App.

1987) (weighing third Barker factor against appellant because no evidence other

than two motions for speedy trial filed with court showed that appellant

asserted his right to a speedy trial by requesting hearings to present evidence

on the matter), vacated and remanded on other grounds, 488 U.S. 807, 109

S. Ct. 39 (1988). Thus, although Jones’s second pro se motion shows that he

attempted to assert his right to a speedy trial, it tips the scales only slightly in

his favor. 3


       3
       … Jones filed a third pro se document, entitled “Statement of
Declarations,” one month later. Jones stated that he had a “right to be heard,”
but also appeared to request that trial be reset so that his family could have
more notice to travel from Indiana to Texas for his trial. However, we will not
consider this pro se filing because Jones had appointed counsel at that time and
because nothing suggests that the trial court considered this filing. See

                                        12
      Finally, the motion to dismiss, filed by Jones’s attorney twenty-nine

months after Jones’s arrest, shows a desire to have no trial instead of a speedy

trial and weakens Jones’s case. See Cantu, 253 S.W.3d at 283.

      Jones submits that the third Barker factor weighs in his favor but

concedes that it does not weigh “as heavily as it would had he repeatedly

asserted his right to speedy trial.”   We agree. Considering the two pro se

filings, filed six months and twenty-seven months after Jones’s arrest, and the

motion to dismiss filed twenty-nine months after his arrest, we weigh this

factor at least slightly against the State and in favor of Jones.

                                   4. Prejudice

      The final factor of “prejudice” must be assessed in light of the interests

the speedy trial right was intended to protect. See Barker, 407 U.S. at 532,

92 S. Ct. at 2193.     Those interests are (1) to prevent oppressive pretrial

incarceration, (2) to minimize the accused’s anxiety and concern, and (3) to

limit the possibility the defense will be impaired. Id. Of these interests, the

third is the most serious because the inability of a defendant to adequately

prepare his case skews the fairness of the entire system. Id.; Doggett, 505




Robinson, 240 S.W.3d at 923.

                                       13
U.S. at 654, 112 S. Ct. at 2692; Dragoo v. State, 96 S.W.3d 308, 315 (Tex.

Crim. App. 2003).

      In some cases, the delay may be so excessive as to be presumptively

prejudicial. Guajardo v. State, 999 S.W.2d 566, 570 (Tex. App.—Houston

[14th Dist.] 1999, pet. ref’d); see Doggett, 505 U.S. at 658, 112 S. Ct. at

2694. Courts have held that delays of five years and longer are presumptively

prejudicial under the fourth Barker factor. See Guajardo, 999 S.W.2d at 570

(five-year delay raises presumption of prejudice); see also Doggett, 505 U.S. at

658, 112 S. Ct. at 2694 (eight and one-half years was presumptively

prejudicial); Orand, 254 S.W.3d at 570 (fourteen-year delay was presumptively

prejudicial).   Yet even when the delay is presumptively prejudicial, the

defendant must nevertheless show that he has, in fact, been prejudiced.

Guajardo, 999 S.W.2d at 570; see Doggett, 505 U.S. at 655–56, 112 S. Ct.

at 2693.

      A showing of actual prejudice is not required; however, a defendant must

make a prima facie showing of prejudice caused by the delay of the trial.

Munoz, 991 S.W.2d at 826. Once the defendant has made such a showing,

the burden shifts to the State. Guajardo, 999 S.W.2d at 570–71.




                                      14
      Although the delay in the present case triggers a speedy trial analysis, it

is not long enough for Jones to have suffered presumptive prejudice.           See

Compass v. State, No. 02-06-00075-CR, 2007 WL 2067733, at *3 n.28 (Tex.

App.—Fort Worth July 19, 2007, no pet.) (mem. op., not designated for

publication) (“We decline to hold that a twenty-nine month delay is

presumptively prejudicial.”); see also Clarke v. State, 928 S.W.2d 709, 717

(Tex. App.—Fort Worth 1996, pet. ref’d) (finding no presumptive prejudice

where appellant retried on punishment two years and five months after

Supreme Court denied certiorari and five months after appellant filed motion for

speedy retrial); Sanders v. State, 978 S.W.2d 597, 605 (Tex. App.—Tyler

1997, pet. ref’d) (finding nineteen-month delay not presumptively prejudicial).

      Jones argues that he was prejudiced for three reasons. 4 He first argues

that he suffered prejudice because the delay resulted in an increased

punishment range. Over two years after his arrest, the State filed its notice of

intent to seek an enhancement finding based on a prior felony conviction from

2001, which increased the punishment range from between two and twenty


      4
        … Jones does not argue that he suffered oppressive pretrial
incarceration, perhaps because it is self-evident that his twenty-nine-month
pretrial incarceration was oppressive. See, e.g., Munoz, 991 S.W.2d at 828
(holding that appellant’s incarceration during entire seventeen-month delay was
dispositive of the oppressive pre-trial incarceration interest). Nevertheless, this
is only one of the three interests we must consider in our prejudice analysis.

                                        15
years’ imprisonment to between five and ninety-nine years’ imprisonment. 5 But

the prior conviction used to enhance Jones’s punishment occurred years before

he was arrested for this offense. Thus, the delay did not create an opportunity

for an increased punishment range—the possibility that Jones could face

increased punishment existed regardless of any delay in his trial. See Tex.

Penal Code Ann. § 12.42(b). Cf. Clarke, 928 S.W.2d at 716 (finding some

prejudice when convictions for two extraneous offenses became final during

delay and thus became admissible at trial under prior version of code of criminal

procedure article 37.07).

      Jones also argues that he was unable to locate and secure witnesses

“who possibly could have testified on [his] behalf” due to the delay. At the

motion to dismiss hearing, Jones’s court-appointed investigator testified that

in October 2007, Jones provided him with a list of four potential witnesses.

The investigator located only one of the individuals, and that person did not

want to participate in the trial.   To claim prejudice because of a missing

witness, a defendant must show that (1) the witness was unavailable at the

time of trial, (2) the witness’s testimony would have been relevant and material,



      5
       … See Tex. Penal Code Ann. § 12.42(b) (Vernon Supp. 2009) (providing
for enhancement of second-degree felony to first-degree felony upon showing
that defendant has prior felony conviction).

                                       16
and (3) the defendant exercised due diligence in attempting to locate the

witness. Clarke, 928 S.W.2d at 716. Jones has failed to show what material

information these witnesses would have provided. See Palacios v. State, 225

S.W.3d 162, 169–70 (Tex. App.—El Paso 2005, pet. ref’d); Clarke, 928

S.W.2d at 716. Consequently, he has failed to make a prima facie showing

that his defense was impaired by the absence of these witnesses.

      Finally, Jones argues that the delay in his case caused him significant

anxiety and distress. At the motion to dismiss hearing, Jones explained his

anxiety and concern regarding his pretrial incarceration: “Just anxious, nervous,

not being able to sleep, eat, just stressing off and on day to day. It’s been a

long road.” Jones has failed to show that the anxiety he suffered either was

abnormal or caused his case prejudice.        See Shaw, 117 S.W.3d at 890

(“[A]ppellant offered no evidence to the trial court that the delay had caused

him any unusual anxiety or concern, i.e., any anxiety or concern beyond the

level normally associated with being charged with [the] crime.”).

      Jones does not present this court, and did not present the trial court, with

any other argument regarding the prejudice-to-the-defense factor.             Cf.

Zamorano, 84 S.W.3d at 654 (noting, in prejudice analysis, defendant’s

testimony about undue anxiety, lost income, and missed work as a result of the



                                       17
delay); Puckett v. State, 279 S.W.3d 434, 441 (Tex. App.—Texarkana 2009,

no pet.) (finding prejudice where appellant showed witnesses with relevant

testimony were unavailable). Jones does not meet the presumptively prejudicial

standard, and even considering his oppressive pretrial incarceration, he has not

made a prima facie showing that he suffered anxiety or concern or that his

defense was impaired. See Munoz, 991 S.W.2d at 829 (holding prejudice was

“minimal” where defendant showed oppressive pretrial incarceration and

anxiety but failed to show defense was impaired by delay); Meyer v. State, 27

S.W.3d 644, 651 (Tex. App.—Waco 2000, pet. ref’d) (finding minimal

prejudice where appellant suffered “some oppressive pretrial incarceration and

undue anxiety” but did not “make even a prima facie showing that his defense

had been impaired”), abrogated on other grounds by Robinson v. State, 240

S.W.3d 919 (Tex. Crim. App. 2007).

      In short, on this record, any prejudice to Jones was “minimal.” Munoz,

991 S.W.2d at 829; Meyer, 27 S.W.3d at 651. This factor weighs against

finding Jones’s speedy trial right was violated.

                           5. Balancing the Factors

      Having addressed the Barker factors, we must now balance them. The

twenty-nine-month delay between Jones’s arrest and his trial weighs heavily



                                      18
against the State and in favor of Jones. The second factor—reasons for the

delay—also weighs against the State, but only slightly because no evidence

exists    that   the   State   used   deliberately   dilatory   tactics.   The   third

factor–assertion of the right—weighs slightly against the State and in favor of

Jones. Finally, any prejudice suffered by Jones was minimal. We hold that the

weight of these factors, balanced together, supports the trial judge’s ruling to

deny Jones’s motion to dismiss and that there was no violation of his right to

a speedy trial. See Palacios, 225 S.W.3d at 170 (finding no speedy trial

violation when first three factors weighed against State and fourth factor

weighed heavily against appellant); see also Russell v. State, 90 S.W.3d 865,

874–75 (Tex. App.—San Antonio 2002, pet. denied) (finding no speedy trial

violation when first three factors weighed in appellant’s favor and presumptive

prejudice was rebutted by failure to demonstrate any prejudice); Guajardo, 999

S.W.2d at 571 (same). We overrule Jones’s first point.

                               IV. M OTION TO S UPPRESS

         In his second point, Jones argues that the trial court erred by overruling

his motion to suppress his videotaped confession because his parole officer told

him he needed to cooperate with the police, rendering his confession

involuntarily given.



                                          19
                             A. Standard of Review

      We review a trial court’s ruling on a motion to suppress evidence under

a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.

1997). In reviewing the trial court’s decision, we do not engage in our own

factual review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990); Best v. State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no

pet.). The trial judge is the sole trier of fact and judge of the credibility of the

witnesses and the weight to be given their testimony. Wiede v. State, 214

S.W.3d 17, 24–25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853,

855 (Tex. Crim. App. 2000), modified on other grounds by State v. Cullen, 195

S.W.3d 696 (Tex. Crim. App. 2006).            Therefore, we give almost total

deference to the trial court’s rulings on (1) questions of historical fact, even if

the trial court’s determination of those facts was not based on an evaluation of

credibility and demeanor, and (2) application-of-law-to-fact questions that turn

on an evaluation of credibility and demeanor. Amador, 221 S.W.3d at 673;

Montanez v. State, 195 S.W.3d 101, 108–09 (Tex. Crim. App. 2006);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002). But when

application-of-law-to-fact questions do not turn on the credibility and demeanor



                                        20
of the witnesses, we review the trial court’s rulings on those questions de

novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607

(Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

      Stated another way, when reviewing the trial court’s ruling on a motion

to suppress, we must view the evidence in the light most favorable to the trial

court’s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the trial court makes explicit fact findings, we

determine whether the evidence, when viewed in the light most favorable to the

trial court’s ruling, supports those fact findings. Kelly, 204 S.W.3d at 818.

We then review the trial court’s legal ruling de novo unless its explicit fact

findings that are supported by the record are also dispositive of the legal ruling.

Id. at 819.

                            B. Law on Voluntariness

      The statement of the accused may be used in evidence if it was freely

and voluntarily made without compulsion or persuasion. Tex. Code Crim. Proc.

Ann. art. 38.21 (Vernon 2005).          In deciding whether a statement was

voluntary, we consider the totality of the circumstances in which the statement

was obtained.    Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App.

1997); Reed v. State, 59 S.W.3d 278, 281 (Tex. App.—Fort Worth 2001, pet.



                                        21
ref’d). A confession is involuntary if circumstances show that the defendant’s

will was “overborne” by police coercion. Creager, 952 S.W.2d at 856. The

defendant’s will may be “overborne” if the record shows that there was

“official, coercive conduct of such a nature” that a statement from the

defendant was “unlikely to have been the product of an essentially free and

unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211

(Tex. Crim. App. 1995); Frank v. State, 183 S.W.3d 63, 75 (Tex. App.—Fort

Worth 2005, pet. ref’d).

                 C. The Voluntariness of Jones’s Confession

      Jones is not complaining of the police officers’ actions prior to or during

his videotaped confession; he complains only that his parole officer’s instruction

to cooperate with the police investigation rendered his confession involuntary.

      At the suppression hearing, Heather Pierce testified that she was Jones’s

parole officer in Muncie, Indiana and that Sergeant Clark had informed her that

he was conducting an investigation into certain allegations against Jones. She

testified that she had called Jones, had explained that she did not know a lot

about the allegation, and had told Jones that he “needed to cooperate with the

Muncie Police Department.” Pierce testified that Jones would not have violated

his parole if he had not cooperated, that she did not threaten him that he would



                                       22
violate his parole if he did not cooperate, and that she did not promise him

anything in exchange for his cooperation. On cross-examination, Pierce agreed

that it is a “good thing” for a parolee to do what a parole officer tells him to do.

      Jones testified at the suppression hearing that Pierce had told him that

he “needed to go down [to the police station] and cooperate with them.” He

said that Pierce had given him a “direct order” to talk to police and that he had

felt that if he did not cooperate with the police, he would violate his parole. He

explained, “I felt like I did not have a choice at the time because the way that

she called me, you know, she didn’t sound — she just sound[ed] like it was a

demand.” On cross-examination, Jones testified that Pierce did not tell him

that he would violate his parole if he did not cooperate with police and that she

did not promise him anything in exchange for his cooperation.           Jones also

testified that both Pierce and Sergeant Clark had told him that he was not going

to be arrested and that he thought he would go to the police station, tell his

side of the story, and “be let go.” He also stated that he went to the police

station “voluntarily.”

      After the hearing, the trial court entered oral and written findings of fact,

finding that Jones appeared voluntarily at the Muncie police department on

February 14, 2006; that he freely, intelligently, knowingly, and voluntarily




                                        23
waived his rights; and that he made his statement under voluntary conditions

after waiving his rights.

      Based on the evidence provided at the suppression hearing, and giving

deference to the trial court’s evaluation of the facts, we hold that the record

supports the trial court’s ruling and that the totality of the circumstances show

that Jones’s confession was voluntary. See Tex. Code Crim. Proc. Ann. art.

38.21; Kelly, 204 S.W.3d at 818; Creager, 952 S.W.2d at 855.

Consequently, we overrule Jones’s second point.

                                V. C ONCLUSION

      Having overruled Jones’s two points, we affirm the trial court’s judgment.




                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: January 28, 2010




                                       24
