      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00773-CR



                                      Jose Bernabe, Appellant

                                                   v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
        NO. D-1-DC-09-302548, HONORABLE JON N. WISSER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury convicted Jose Bernabe of the second-degree felony offense of sexual assault

of a child and assessed punishment at eight years in prison. See Tex. Penal Code Ann. § 22.011

(West 2011). Bernabe challenges his conviction, contending that the district court erred in denying

Bernabe’s motion to suppress his confession to police because there is no evidence that he made a

“knowing and intelligent” waiver of his rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2(b)

(West 2005). We will affirm the judgment of conviction.


                                          BACKGROUND

                At a pretrial suppression hearing, Bernabe argued for the exclusion of his confession

because he did not make a “knowing and intelligent” waiver of his rights. See Jackson v. Denno,

378 U.S. 368 (1964). Austin Police Department Detective Arturo Canizales was the sole witness

at the suppression hearing. Canizales testified that Bernabe, a Spanish-speaker, seemed eager to

discuss the case after his arrest and tried to do so while en route to the police station, but Canizales
asked him to wait. After arriving that the police station, Canizales conducted a custodial interview

with Bernabe in Spanish during which he read Bernabe his Miranda warnings, see Miranda

v. Arizona, 384 U.S. 436, 444 (1966), and gave him a card with a Spanish-translation of the Miranda

warnings printed on the front and a waiver of those rights printed on the back.1 Bernabe had

an opportunity to read the card, initialed to the left of each warning, indicated verbally that he

understood each of the warnings, and signed and dated the reverse side of the card with the waiver

of his rights. Canizales testified that he did not read the reverse side of the card to Bernabe because

that was not standard practice.2 Shortly after initialing and signing the Miranda card, Bernabe agreed

to speak with Canizales about the case and confessed in explicit detail to sexual acts with his

stepdaughter N.M., whom he knew was a minor but he considered his “girlfriend.”



       1
           The front of the Miranda warning card, printed in English and Spanish, stated:

       1. You have the right to remain silent and not make any statement at all and that any
          statement you make may be used against you and probably will be used against
          you at your trial;

       2. Any statement you make may be used as evidence against you in court;

       3. You have the right to have a lawyer present to advise you prior to and during any
          questioning;

       4. If you are unable to employ a lawyer, you have the right to have a lawyer
          appointed to advise you prior to and during any questioning;

       5. You have the right to terminate this interview at any time.

The reverse side of the card, also with sections in English and Spanish, stated:

       I have received and understand the warning[s] on the other side of the card. I agree
       to waive these Rights and to make a Statement.
       2
           Canizales testified that officers are now required to read the waiver to the accused.

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               The trial court denied Bernabe’s motion to suppress, and subsequently made findings

of fact and conclusions of law concerning Bernabe’s confession. See Tex. Code Crim. Proc. Ann.

art. 38.22, § 6 (West 2005). The court’s findings, fairly summarized, determined that Bernabe

received all of the article 38.22 warnings printed in Spanish on the Miranda card, he initialed next

to each of them, signed the back of the card, and told Canizales that he wanted to talk about the case.

The court further determined that Bernabe’s conduct in the patrol car and at the station showed his

eagerness to explain his version of events, and nothing suggested that he was coerced, tricked,

or pressured to discuss the case, nor was he promised or offered anything to get him to speak

to Canizales about the case. Based on these findings, the trial court concluded that although

Bernabe was not asked directly whether he waived his article 38.22 warnings, he nonetheless

“implicitly, knowingly, and voluntarily” waived his article 38.22 rights and gave his statement. At

the conclusion of a four-day trial, a jury convicted Bernabe of sexual assault of a child as alleged in

Count 1 of the indictment, and assessed punishment. This appeal ensued.


                                            ANALYSIS

               Article 38.22 of the code of criminal procedure sets forth procedural safeguards for

securing the accused’s privilege against self-incrimination in criminal proceedings. Joseph v. State,

309 S.W.3d 20, 23 (Tex. Crim. App. 2010) (citing Tex. Code Crim. Proc. Ann. art. 38.22). Included

within those safeguards is the prohibition against admission of any oral statement that the accused

made during custodial interrogation unless the statement was recorded and, before the statement

but during the recording, the accused was warned of his rights and “knowingly, intelligently, and

voluntarily” waived those rights. Id. at 23-24; see Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1)-

(2). Article 38.22 warnings must advise the accused that

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       (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.


Joseph, 309 S.W.3d at 24 (citing Tex. Code Crim. Proc. Ann. art. 38.22, § 2); see Miranda,

384 U.S. at 444. Admissibility of an accused’s custodial-interrogation statement requires both the

article 38.22 warning and a waiver. See Joseph, 309 S.W.3d at 24.

               In his sole issue, Bernabe contends that the district court erred in denying his motion

to suppress his confession to police because there is no evidence that he made a “knowing and

intelligent” waiver of his rights. See Tex. Code Crim. Proc. Ann. art. 38.22, § 2(b). It is undisputed

that Bernabe was not coerced or intimidated into giving his statement. Bernabe acknowledges that

he received the article 38.22 warnings and that he waived his rights voluntarily. He argues only that

his waiver of rights was not given “knowingly and intelligently” because there is no indication that

he was aware of the nature of the rights being waived and the consequences of waiving those rights.

               The State has the burden of establishing a valid waiver of Miranda rights by a

preponderance of the evidence. Leza v. State, 351 S.W.3d 344, 349 (Tex. Crim. App. 2011). An

accused’s waiver of rights is considered “knowing and intelligent” when it is made “with a full

awareness both of the nature of the right being abandoned and the consequences of the decision to

abandon it.” Joseph, 309 S.W.3d at 25 (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). We


                                                  4
consider the “totality of the circumstances surrounding the interrogation,” including the accused’s

experience, background, and conduct, in deciding whether the accused had the requisite level of

comprehension. Id. The Texas Court of Criminal Appeals has stated that a waiver is knowing and

intelligent if “the accused has been made aware and fully comprehends that he has the right to

remain silent in the face of police interrogation and to discontinue the dialogue at any time, and that

the consequence of his waiver is that his words may be used against him in a court of law.” Leza,

351 S.W.3d at 350 (citing Ripkowski v. State, 61 S.W.3d 378, 384 n. 10 (Tex. Crim. App. 2001)).

The waiver need not assume any particular form, Joseph, 309 S.W.3d at 24, and “may be inferred

from actions and words of the person interrogated.” Leza, 351 S.W.3d at 353 (quoting Barefield

v. State, 784 S.W.2d 38, 41 (Tex. Crim. App. 1989)). It is within a trial court’s discretion to rely on

an implied waiver whenever the totality of the circumstances of the defendant’s recorded statement

supports it. Leza, 351 S.W.3d at 353.

               Bernabe contends that any awareness he had of the nature of the rights being waived

and the consequences of the decision to waive those rights “must be inferred solely from the fact

that he had an opportunity to read the Spanish text on the back of the Miranda card where he

placed his signature.” However, in determining whether the record establishes a “knowing and

intelligent” waiver of rights, we consider the totality of the circumstances surrounding the

interrogation, including the interrogated person’s actions and words. Id. at 353. Here, the totality

of the circumstances surrounding Bernabe’s recorded, translated, and transcribed interrogation shows

that Bernabe understood the nature of the rights he abandoned and the consequences of making his

statement to police. Bernabe had an opportunity to read both sides of the Miranda card. He placed

his initials beside each individual warning, indicated verbally that he understood each warning as


                                                  5
it was read to him, and at the conclusion of the warnings stated, “I do understand.” Bernabe also

signed and dated the spaces immediately below the only two sentences on the reverse side of the

card, acknowledging his receipt and understanding of the warnings and declaring his intent to waive

those rights and make a statement.

               After Bernabe completed both sides of the Miranda card, he verbally confirmed that

he wanted to talk to Canizales about the case. During that discussion, Canizales stated that he knew

about Bernabe’s feelings for his stepdaughter because Canizales read text messages sent from

Bernabe’s phone to his stepdaughter’s phone, including one that stated, “I never abused you [N.M.].

It happened for love.” Confronted with that evidence, Bernabe acknowledged:


       Yes. You are right. You are completely right. Well, sometimes the situation is very
       difficult for one as an adult. . . . But for loving one person, you cannot be deprived
       of your freedom.


Then, indicating awareness of his right not to make the statements that were to follow and his

understanding of the possible criminal consequences of what he was about to say, Bernabe

continued:


       What I’m going to say might condemn me. But I do it with the sole purpose of being
       honest. . . . I don’t take back what I say because I have always spoken the truth. I
       will tell you the story of what happened. You are the second person who knows it.
       It all depends on your conscience or the conscience of whoever wants to accuse me.
       I am willing to carry this to its logical conclusion. . . . If one day they lock me up
       over there for loving one person, it will remain on everybody’s conscience.


[Emphases added.] Bernabe proceeded to provide an explicit confession of the sexual acts he had

engaged in regularly with his minor stepdaughter, whom he considered his “girlfriend.”



                                                 6
                 The preface to Bernabe’s confession clarifies that he knew he did not have to make

the statements he was about to make, but he wanted to “be[] honest” and “tell [Canizales] what

happened.” Bernabe further knew what he was about to say might “condemn him” and one day

he might be “locked up,” but he chose to speak anyway. Under totality of the circumstances in this

record, we conclude that Bernabe provided his statement “knowingly and intelligently,” with full

awareness of the rights being abandoned and the consequences of his decision to abandon them. See

Joseph, 309 S.W.3d at 25. Because the record supports the trial court’s findings that Bernabe

“implicitly and knowingly” waived his article 38.22 rights, the trial court did not err in denying

Bernabe’s motion to suppress. See Leza, 351 S.W.3d at 353. Accordingly, we overrule Bernabe’s

sole issue.


                                          CONCLUSION

                 Having overruled Bernabe’s sole issue, we affirm the district court’s judgment

of conviction.




                                              Jeff Rose, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: August 10, 2012

Do Not Publish




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