                                    NUMBER 13-09-00170-CR

                                    COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


RUSSELL BOYD KNOWLES,                                                                             Appellant,

                                                        v.

THE STATE OF TEXAS,                                                                                Appellee.


                         On appeal from the 226th District Court
                               of Bexar County, Texas.


                                MEMORANDUM OPINION 1

         Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Chief Justice Valdez

        Appellant, Russell Boyd Knowles, was charged by indictment with the murder of



        1
         By a docket equalization order issued by the Texas Suprem e Court, this case was transferred from
the Fourth Court of Appeals to the Thirteenth Court of Appeals. See T EX . G O V ’T C OD E A N N . § 73.001 (Vernon
2005). Given that the case originated in the Fourth Court of Appeals, we are bound by the rules of appellate
procedure to apply the precedent of the Fourth Court of Appeals in this appeal. See T EX . R. A PP . P. 41.3.
Raymond Solis while in the course of committing or attempting to commit the offense of

robbery, a capital offense. See TEX . PENAL CODE ANN . § 19.03(a)(2), (b) (Vernon Supp.

2009). After a jury trial, Knowles was convicted of the murder and received a mandatory

sentence of life imprisonment in the Institutional Division of the Texas Department of

Criminal Justice without the possibility of parole. See id. § 12.31 (Vernon Supp. 2009).

By two issues on appeal, Knowles argues that the trial court erred in denying his motion

to suppress statements made to police during a custodial interrogation at a hospital

because: (1) he did not knowingly, intelligently, and voluntarily waive his rights under

article 38.22 of the code of criminal procedure or Miranda v. Arizona, 384 U.S. 436, 444

(1966), see TEX . CODE CRIM . PROC . ANN . art. 38.22, § 3 (Vernon 2005); and (2) he was

taking heavy medication when the statement was made, and, thus, his statements could

not have been made voluntarily. Because we find that appellant made his statements to

detectives knowingly, intelligently, and voluntarily, we affirm the judgment of the trial court.2

                                               I. BACKGROUND

        Knowles was indicted by a Bexar County grand jury for shooting and killing Solis

while in the course of committing or attempting to commit a robbery at the Pennies Food

Mart, a convenience store in San Antonio, Texas. Testimony at trial established that Solis

was a customer in the store at the time of the robbery and that he allegedly struggled to

take a gun away from Knowles during the commission of the offense. During the struggle,

Knowles was apparently stabbed by a third person in the store, Roland Perez. Once

stabbed, Knowles dropped the gun and left the store. Because of his stab wounds, police

were able to later identify, locate, and detain Knowles and his accomplice, Larry Summers,


        2
          As this is a m em orandum opinion, and the parties are fam iliar with the facts of the case, we will only
recite those facts which are necessary to advise the parties of this Court’s decision and the basic reasons for
it. See T EX . R. A PP . P. 47.4.
                                                        2
the driver of a getaway car.

       Once in police custody, Knowles was taken to University Hospital for treatment of

his stab wounds. Doctors at University Hospital confirmed that Knowles was in critical

condition as a result of his stab wounds, but that he would live. Jesse Salame, a detective

in the homicide unit of the San Antonio Police Department, was assigned to investigate the

case. Detective Salame testified that after Knowles’s health stabilized, he was transferred

to the secured unit of the University Hospital. At this time, approximately four days after

the incident, Detective Salame and another detective, Nunez, went to talk to Knowles in

his hospital room. Detective Salame recalled that Knowles was wearing a hospital gown

and had some medical equipment connected to him at this time. Detectives Salame and

Nunez took a digital audio recorder into the room to record Knowles’s statements regarding

the incident. Detective Salame testified at trial that Knowles gave them statements about

the incident, but that, prior to giving the statements, the detectives read Knowles his

Miranda rights, and Knowles agreed to talk with the detectives. See TEX . CODE CRIM .

PROC . ANN . art. 38.22, § 2; see also Miranda, 384 U.S. at 444. Detective Salame recalled

that Knowles waived his Miranda rights by nodding his head, “basically indicating to me

that he understood his rights.” When asked about Knowles’s condition at the time of the

questioning, Detective Salame stated that Knowles “was whispering at first, breathing

heavily, whispering. As we got into the interview a little more, his speech became very

clear.” Detective Salame further stated that at no point during the interview did Knowles

attempt to invoke any of his Miranda rights. During the interview, Knowles only made one

request, which was “to change his position, get up or move from the bed to a chair or

something like that.” Detective Salame remembered there being water and food in

Knowles’s room at the time of the interview. The State then proffered the audio recording

                                            3
of Knowles’s statement for inclusion in evidence. The trial court, over objections from

Knowles, admitted the audio recording into evidence and allowed for the jury to be

provided with transcripts of the interview.3 In his statements to police, Knowles confessed

to shooting Solis during the attempted robbery of the convenience store.4

         On cross-examination, Detective Salame indicated that two days prior to the

interview, Knowles had undergone surgery and was intubated and in a medically-induced

coma. Detective Salame also noted that when he and Detective Nunez arrived at the

hospital, they asked the nurses if they could speak with Knowles, and the nurses obliged.

However, neither Detective Salame nor Detective Nunez spoke with any of Knowles’s

treating physicians even though Detective Salame acknowledged that it might have been

prudent to speak with them in order to accurately ascertain Knowles’s condition.5 Detective

Salame recalled that Knowles appeared to be in some pain during the interview, and

defense counsel suggested that Knowles was on three different medications—Vicodin,

morphine, and hydrocodone—at the time of the interview.6

         On re-direct examination, Detective Salame “didn’t feel like he [Knowles] was over[-

]medicated to the point where he didn’t understand or even intoxicated or in any way

impaired to where he wouldn’t understand what it was—why I was there and what we
        3
         Prior to trial, Knowles filed a m otion to suppress any statem ents he m ade to law enforcem ent
pursuant to article 38.22 of the code of crim inal procedure. See T EX . C OD E C R IM . P R O C . A N N . art. 38.22
(Vernon 2005). After hearings conducted on Decem ber 8 and 15, 2008, the trial court denied the m otion.

         4
          Knowles testified on his own behalf at trial and adm itted that the statem ents he m ade to police at
the hospital contained “[a] lot” of truths and som e inaccuracies or “untruths.” He also testified that he did not
rem em ber speaking to the detectives in the hospital.

         5
         However, Detective Salam e noted that when he and Detective Nunez arrived at the hospital, neither
of them saw any physicians to question. Only a few nurses were available to inquire into Knowles’s condition.

        6
           Ron Stewart, M.D., a traum a surgeon at the University Hospital, testified that, as a result of his stab
wounds, Knowles required surgery to repair “bilateral collapsed lungs” and an injury to his diaphragm . Dr.
Stewart described Knowles’s injuries as life-threatening and noted that Knowles tested positive for
“benzodiazepines, cannabinoids, and alcohol.” Dr. Stewart also testified that Knowles was prescribed several
painkillers after the surgery, including m orphine, Vicodin, Fentanyl, Propofol, and Tylenol with hydrocodone
that were adm inistered at various tim es during his hospital stay.
                                                         4
wanted to talk about.” Detective Salame testified that Knowles’s recollection of the incident

was accurate and reflected what investigators believed had happened that evening, based

on the evidence. Detective Salame emphasized that it was imperative to get a statement

from Knowles as soon as possible to aid in the investigation. Detective Salame also

admitted that, at some point in the interview, a nurse advised Knowles to keep talking

because “it’s good for your lungs.”

       At the conclusion of the trial, Knowles was convicted by a jury of capital murder.

See TEX . PENAL CODE ANN . § 19.03(a)(2), (b). The State sought the death penalty in this

case, but the jury assessed punishment at life imprisonment without the possibility of

parole. See id. § 12.31. The trial court signed an order adopting the jury’s verdict and

subsequently certified Knowles’s right to appeal. On February 18, 2009, Knowles filed a

motion for new trial, which was overruled by operation of law. See TEX . R. APP. P. 21.8(a),

(c). This appeal ensued.

       Subsequently, we abated the appeal and instructed the trial court to conduct an

evidentiary hearing and enter findings of fact and conclusions of law regarding Knowles’s

statements made to the police at the hospital. See State v. Cullen, 195 S.W.3d 696, 698-

700 (Tex. Crim. App. 2006). On May 20, 2010, the trial court entered written findings of

fact and conclusions of law pertaining to Knowles’s statements and his motion to suppress.

The trial court made the following findings of fact:

       2.     The police were conducting a custodial interrogation of the defendant
              while in the hospital when the statement at issue was made. The
              statement was recorded on an audio recording device.

       3.     Th operator of the recording device was competent and the recording
              made was accurate and unaltered.

       4.     All material voices were identified: Detective Salame, Detective
              Nunez, and the defendant.
                                             5
        5.       The State provided defense counsel . . . with a copy of the recording
                 at least 20 days prior to the date of this proceeding.

        6.       The recorded statement shows Detective Salame read the defendant
                 his Miranda warnings. To the question, “do you understand these
                 rights?[,]” the defendant nodded his head “yes.” Detective Salame
                 said the word “yes” on the recording to indicate the defendant had
                 nodded his head and confirmed affirmatively he understood his rights.

        7.       The defendant willingly spoke with the detectives. The defendant did
                 not invoke his right to remain silent or to have counsel present.

(Emphasis added.) The trial court further found that: (1) police did not threaten or attempt

to coerce Knowles into making his statement; (2) “[a]ny mental impairment due to

medication was not so severe that the defendant was incapable of understanding the

meaning and effect of his statement. Defendant’s answers were lucid, appropriate, and

cohesive. . . . He remembered specific details about . . . the robbery, the getaway vehicle,

and how he got to the hospital”; (3) nothing in the record demonstrated that Knowles’s

statements were given involuntarily; and (4) Detective Salame was a credible witness.

Based on its fact findings, the trial court concluded that Knowles knowingly, intelligently,

and voluntarily waived his rights under Miranda and article 38.22 of the code of criminal

procedure. See TEX . CODE CRIM . PROC . ANN . art. 38.22, § 2; see also Miranda, 384 U.S.

at 444. On appeal, Knowles argues that his statements made to police at the hospital were

not knowing, intelligent, or voluntary; thus, they should have been suppressed.7

                                         II. STANDARD OF REVIEW

        A trial court’s denial of a motion to suppress is reviewed for an abuse of discretion.

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review the evidence in
        7
           In our order of abatem ent, we requested supplem ental briefing from both parties addressing the trial
court’s findings of fact and conclusions of law. Appellant’s supplem ental brief was due within ten days of the
trial court’s May 20, 2010 findings of fact and conclusions of law and the State’s supplem ental brief was due
within ten days of appellant’s brief. Neither party has filed a supplem ental brief in this m atter. Therefore, we
will analyze the appellate briefs we have on file.
                                                        6
the light most favorable to the trial court’s ruling, see Gutierrez v. State, 221 S.W.3d 680,

687 (Tex. Crim. App. 2007), and we review the trial court’s ruling under a bifurcated

standard of review, giving 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. See Amador v. State, 221 S.W.3d 666, 673

(Tex. Crim. App. 2007); see also State v. Oliver, 29 S.W.3d 190, 191 (Tex. App.–San

Antonio 2000, pet. ref’d). However, when application-of-law-to-fact questions do not turn

on the credibility and demeanor of the witnesses, we review the trial court’s ruling on those

questions de novo. See Amador, 221 S.W.3d at 673; see also Estrada v. State, 154

S.w.3d 604, 607 (Tex. Crim. App. 2005).

                                     III. APPLICABLE LAW

       Article 38.22, section 3 of the code of criminal procedure provides that an oral

custodial statement is inadmissible as evidence unless, among other things, the accused

is warned prior to the statement as provided in section 2 of article 38.22 and knowingly,

intelligently, and voluntarily waives the rights set out in the warning; an electronic recording

is made of the statement; and all voices on the recording are identified. TEX . CODE CRIM .

PROC . ANN . art. 38.22, § 3(a). Section 2 of article 38.22 requires that the accused receive

the following warnings:

       (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;

                                               7
       (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 . . . .

Id. at art. 38.22, § 2(a)(1)-(5). An accused must be administered these warnings “or their

fully effective equivalent” in order for the statement to be admissible. Id. § 3(e)(2); see

Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007) (stating that the article

38.22, section 2(a) warnings are “virtually identical” to the Miranda warnings except for the

admonition that an accused has the right to terminate the interview at any time); see also

Paniagua v. State, No. 13-08-00228-CR, 2010 Tex. App. LEXIS 1331, at *13 n.5 (Tex.

App.–Corpus Christi Feb. 25, 2010, no pet.) (mem. op., not designated for publication)

(same).

       Article 38.22, section 3 is a procedural evidentiary rule rather than a substantive

exclusionary rule. Davidson v. State, 25 S.W.3d 183, 186 (Tex. Crim. App. 2000). The

erroneous admission of a statement in violation of the requirements of this section is non-

constitutional error, which we must disregard if it did not affect Knowles’s substantial rights.

See TEX . R. APP. P. 44.2(b); Nonn v. State, 117 S.W.3d 874, 881 (Tex. Crim. App. 2003);

Mosley v. State, 983 S.W.2d 249, 259 (Tex Crim. App. 1998) (op. on reh’g); see also

Andrews v. State, No. 05-05-00960-CR, 2006 Tex. App. LEXIS 4566, at *9 (Tex.

App.–Dallas May 26, 2006, no pet.) (mem. op., not designated for publication). A

substantial right is affected when the error had a substantial and injurious effect or

influence in determining the jury’s verdict. See Nonn, 117 S.W.3d at 881; see also King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). However, an error does not affect

a substantial right if we have “fair assurance that the error did not influence the jury, or had

but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001);
                                               8
Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

                                       IV. ANALYSIS

       By both of his issues on appeal, Knowles argues that the trial court abused its

discretion in denying his motion to suppress the statements he made to police at the

hospital.   First, Knowles argues that the record does not contain direct evidence

demonstrating that he made a knowing, intelligent, and voluntary waiver of his rights

afforded under article 38.22 of the code of criminal procedure. See TEX . CODE CRIM . PROC .

ANN . art. 38.22. Second, Knowles contends that, because he was under “heavy narcotic

medication at the time of his custodial interrogation,” and because he was in physical pain

during the interview and Detective Salame failed to consult Knowles’s treating physicians

prior to the interview, Knowles “lacked the mental or physical ability to voluntarily give a

statement.” The State counters by arguing that Knowles failed to preserve his issues on

appeal because he did not mention compliance with article 38.22 or Miranda in his

arguments or objections. Alternately, the State argues that the evidence demonstrates that

Knowles waived his rights under article 38.22 and Miranda and that Knowles’s statement

was given knowingly, intelligently, and voluntarily.

A.     Preservation of Error

       In support of its argument that Knowles did not preserve error, the State directs us

to two different arguments made by Knowles regarding the statements made at the

hospital: (1) at the December 15, 2008 hearing on his motion to suppress; and (2) at a

pretrial hearing conducted on February 2, 2009. At the December 15, 2008 hearing,

Knowles objected to the admission of the audiotape of the statements he made at the

hospital by arguing the following:

                                             9
      [Defense counsel]: And then, just briefly, Your Honor, the only thing I can
                         think of in regards to—I know you’ve had a chance now
                         to fully review the audiotape in my case. You’ve had a
                         chance, I know to look at the transcript several times.
                         It’s—I think it’s pretty clear from there, from the taking
                         of the tape, there’s no—I don’t believe and after
                         listening to it myself, I don’t believe there’s any part of
                         the tape that indicates any type of inducement or fear or
                         illegal persuasion that the detective[s] put upon our
                         client.

                                   The only thing I’m objecting to still, Your Honor,
                           since it was—and you have the dates I’m sure, Judge,
                           of just a couple of days since he was in a coma,
                           expected to die at the hospital, that it was—I think the
                           officer was speaking to him too soon, and, especially,
                           he should have inquired into his—into his chief
                           physician as to his releasing him to be able to talk to
                           anybody. Not just talking to a nurse, who’s apparently
                           violated several of the HIPAA rights here in the State of
                           Texas. But that’s all we have on our motion, Judge.

      Later at the February 2, 2009 hearing, Knowles argued that the audiotape should

not be admitted into evidence:

      [Defense counsel]: Acetaminophen with hydrocodone in it, which he was
                         allowed to take a tab of that every two to four hours,
                         depending on the amount of pain. So he was
                         in—combination, he was on morphine and
                         hydrocodone, doses of ibuprofen, and this was while he
                         was being interviewed on January 12th. There’s
                         actually a notation from the nurse that he was receiving
                         his morphine as supposed to be, directly on the 12th,
                         and, also, he was receiving his hydrocodone pills.

                           Because of that, Judge, I’m going to reurge my motion
                           that since my client was not under any type of medical
                           release to be interviewed, that he could not have
                           voluntarily given his statement on the facts of the—the
                           effects of the morphine and the ibuprofen with codeine.

             ....

                           Because of those medications, Judge, I’m going to ask

                                           10
                            you to reconsider your ruling and say this confession
                            was not voluntary, based on the fact he couldn’t give—
                            that he could not voluntarily give up his Miranda
                            warnings and he could not intelligently sign the release
                            on that or give a release orally and proceed with the
                            interview. And that’s all we have.

(Emphasis added.)

       The State argues that Knowles’s objections can only be construed as an objection

to the voluntariness of his statements as it pertains to the medication and that, by

construing the objections as encompassing article 38.22, Knowles’s duty to make a

“specific and timely objection” would be obviated. See TEX . R. APP. P. 33.1. The State

further argues that, because he did not make a timely and specific objection under article

38.22, Knowles cannot challenge, on appeal, the propriety of the trial court’s admission of

his statements under article 38.22. See id.; see also Williams v. State, 883 S.W.2d 317,

318-20 (Tex. App.–Dallas 1994, pet. ref’d). We disagree.

       At the February 2, 2009 hearing, Knowles clearly objected to the voluntariness of

his statements, arguing that the statements were given while he was medicated and being

treated at the hospital. See TEX . CODE CRIM . PROC . ANN . art. 38.22, § 3(a). Knowles also

invoked the intelligence requirement of article 38.22, section 3 in his objection. See id. In

addition, Knowles clearly references Miranda in his objections, and, as we have noted

earlier, the article 38.22 requirements are virtually identical to those set forth in Miranda.

See Herrera, 241 S.W.3d at 526; see also Paniagua, 2010 Tex. App. LEXIS 1331, at *13

n.5. We believe that the trial court understood Knowles’s objections and considered the

objections within the context of article 38.22. See TEX . CODE CRIM . PROC . ANN . art. 38.22,

§ 3(a). Based on the foregoing, and given that the trial court overruled all of Knowles’s

objections to the admission of the audio-taped statements and that Knowles’s arguments
                                             11
on appeal are substantially similar to those made in the trial court, we conclude that

Knowles’s issues pertaining to the audio-taped statements were preserved for appellate

review. See TEX . R. APP. P. 33.1; see also Williams, 883 S.W.2d at 318-20 (“An objection

raised on appeal will not be considered if it varies from an objection raised at trial.”).

B.     Knowles’s Statements to Police

       A person’s right to be warned comes into play only when the person is in custody.

See Zavala v. State, 956 S.W.2d 715, 723 (Tex. App.–Corpus Christi 1997, no pet.). It is

undisputed that Detectives Salame and Nunez’s interview with Knowles at the hospital

constituted a custodial interrogation; thus, it was incumbent upon the detectives to issue

Knowles the warnings prescribed in article 38.22, section 2(a). See TEX . CODE CRIM . PROC .

ANN . art. 38.22, § 2. Detective Salame testified that he began Knowles’s interview with a

recitation of the article 38.22, section 2(a) warnings. See id. § 2(a). Detective Salame’s

testimony was corroborated by the audio recording of the interview. Detective Salame

further testified that, after receiving the warnings, Knowles waived his Miranda rights.

       The State has the burden of showing that a defendant knowingly, intelligently, and

voluntarily waived his Miranda rights by a preponderance of the evidence. Joseph v. State,

309 S.W.3d 20, 24 (Tex. Crim. App. 2010) (citing Colorado v. Connelly, 479 U.S. 157, 168

(1986); Miranda, 384 U.S. at 444, 475; Hill v. State, 429 S.W.2d 481, 486 (Tex. Crim. App.

1968)). An inquiry into the waiver of Miranda rights “‘has two distinct dimensions.’”

Ripkowski v. State, 61 S.W.3d 378, 384 (Tex. Crim. App. 2001) (quoting Colorado v.

Spring, 479 U.S. 564, 573 (1987)). First, the waiver must be “‘voluntary in the sense that

it was the product of a free and deliberate choice rather than intimidation, coercion, or

deception.’” Id. (quoting Spring, 479 U.S. at 573). Second, the suspect must have made

                                             12
the waiver “‘with a full awareness both of the nature of the right being abandoned and the

consequences of the decision to abandon it.’” Id. (quoting Spring, 479 U.S. at 573). The

“Constitution does not require that a criminal suspect know and understand every possible

consequence of a waiver of the Fifth Amendment privilege.” Spring, 479 U.S. at 574. It

is enough that a “suspect know that he may choose not to talk to law enforcement officers,

to talk only with counsel present, or to discontinue talking at any time.” Id.

       In Barefield v. State, the court of criminal appeals held that Texas’s oral-confession

statute does not require an express verbal statement from the accused that he waived his

rights prior to giving a statement. 784 S.W.2d 38, 40-41 (Tex. Crim. App. 1989), overruled

on other grounds by Zimmerman v. State, 860 S.W.2d 89 (Tex. Crim. App. 1993). The

Barefield court reasoned “that in reaching the voluntariness of a confession, [we should

look] at the totality of the circumstances.” Id. at 41.

       On appeal, Knowles argues that he did not waive his rights because “there is no

signed ‘rights card’ or audible response from Appellant[,] just Detective Salame’s testimony

that Appellant understood his rights.” We do not find Knowles’s argument to be persuasive

because, as we have noted earlier, an express waiver of rights is not required. See

Joseph, 309 S.W.3d at 24-25 (“Appellant argues that he did not ‘provid[e] a written waiver’

or ‘articulate any kind of waiver of his rights.’ But Appellant’s objection to the absence of

a written or articulated waiver runs contrary to ‘the general rule . . . that neither a written

nor an oral express waiver is required. . . . [A] waiver need not assume a particular form

and, in some cases, a ‘waiver can be clearly inferred from the actions and words of the

person interrogated.’”) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979); Watson

v. State, 762 S.W.2d 591, 601 (Tex. Crim. App. 1988)); see also Oliver, 29 S.W.3d at 193


                                              13
(stating that the “Court of Criminal Appeals has approved the inference of a waiver [of

Miranda rights] from the totality of the circumstances in the situation where an oral

confession contains a recitation of the article 38.22 warnings and the defendant indicates

he understands his rights and proceeds without hesitation to participate in the interview”).

Furthermore, Knowles does not cite any relevant authority holding that the only way waiver

may be proved is by the presentment of direct evidence, such as a signed “rights” card.

In fact, Knowles’s argument is contrary to established precedent that waiver can be

inferred from the actions and words of the accused. See Butler, 441 U.S. at 373; Joseph,

309 S.W.3d at 24-25; Watson, 762 S.W.2d at 193; Oliver, 29 S.W.3d at 193.

       The State’s entire waiver argument is premised on Detective Salame’s recounting

of the interview and the trial court’s conclusion that Detective Salame is a credible witness.

In applying the governing standard of review in this case, we are to accord almost total

deference to the trial court’s determination regarding the credibility and demeanor of the

witnesses.   See Amador, 221 S.W.3d at 673; see also Oliver, 29 S.W.3d at 191.

Accordingly, we must take Detective Salame’s testimony regarding the interview as true,

a conclusion that is supported by the audiotape of the interview. See Amador, 221 S.W.3d

at 673; see also Oliver, 29 S.W.3d at 191. Here, Detective Salame testified that: (1) he

read Knowles his Miranda rights prior to commencing the interview; (2) Knowles nodded

his head “yes,” indicating that he understood his rights; (3) Detective Salame stated on the

tape that Knowles indicated that he understood his rights, and Knowles did not attempt to

refute Detective Salame’s statement; and (4) Knowles proceeded to answer all of the

detectives’ questions. Knowles was not asked to sign a “rights card”; however, it is

undisputed that Knowles was read his Miranda rights prior to questioning.


                                             14
         Based on the totality of the circumstances, we conclude that Knowles knowingly,

intelligently, and voluntarily waived his rights under article 38.22. See Turner v. State, 252

S.W.3d 571, 583 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d) (holding that a

defendant validly waived his rights when he indicated he understood his rights and

proceeded to answer questions); Hargrove v. State, 162 S.W.3d 313, 318-19 (Tex.

App.–Fort Worth 2005, pet. ref’d) (finding the accused validly waived his rights despite a

lack of explicit waiver); Oliver, 29 S.W.3d at 193 (finding that, despite a lack of explicit

waiver, the accused knowingly, intelligently, and voluntarily made a statement after reading

his rights, indicating he understood them, and proceeding without hesitation to discuss the

circumstances surrounding a murder).

C.       The Effect of Medication on Knowles’s Statements

         Knowles also challenges the trial court’s finding that the effect of his medication was

not so severe that it prevented him from voluntarily giving his statements to the detectives

at the hospital. The State argues that the record demonstrates that Knowles voluntarily

gave statements to the detectives and that any impairment that may have been caused by

the medication was negligible and did not render Knowles’s statement involuntary. We

agree.

         1.     Applicable Law

         A confession is involuntary under the Due Process Clause “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 v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); see State v. Terrazas, 4

S.W.3d 720, 723 (Tex. Crim. App. 1999).             The "inquiry . . . examines 'whether a

                                               15
defendant's will was overborne' by the circumstances surrounding the giving of the

confession." Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth

v. Bustamonte, 412 U.S. 218, 226 (1973)). "The due process test takes into consideration

'the totality of all the surrounding circumstances—both the characteristics of the accused

and the details of the interrogation.'" Id. (quoting Schneckloth, 412 U.S. at 226). "The

determination 'depend[s] upon a weighing of the circumstances of pressure against the

power of resistance of the person confessing.'" Id. (quoting Stein v. New York, 346 U.S.

156, 185 (1953)).

       Statements that courts have found involuntary involve the crucial element of police

overreaching and involve fact scenarios in which the suspect was subjected to threats,

physical abuse, or extended periods of interrogation without rest or nourishment. See

Oursbourn v. State, 259 S.W.3d 159, 170-71 (Tex. Crim. App. 2008) (collecting cases).

Specifically, the Oursbourn court referenced the following fact scenarios involving police

overreaching which rendered a confession involuntary: (1) "the suspect was subjected to

a four-hour interrogation while incapacitated and sedated in an intensive-care unit"; (2) "the

suspect, while on medication, was interrogated for over eighteen hours without food,

medication, or sleep"; (3) "the police officers held a gun to the head of the wounded

suspect to extract a confession"; (4) "the police interrogated the subject intermittently for

sixteen days using coercive tactics while he was held incommunicado in a closed cell

without windows and was given limited food"; (5) "the suspect was held for four days with

inadequate food and medical attention until he confessed"; (6) "the suspect was subjected

to five days of repeated questioning during which police employed coercive tactics"; (7)

"the suspect was held incommunicado for three days with little food, and the confession


                                             16
was obtained when officers informed him that their chief was preparing to admit a lynch

mob into the jail"; and (8) "the suspect was questioned by relays of officers for thirty-six

hours without an opportunity for sleep." Id. Based upon these fact scenarios, the

Oursbourn court stated that "due-process and Miranda claims of involuntariness generally

do not require 'sweeping inquiries into the state of mind of a criminal defendant who has

confessed'"; rather, "[t]hey involve an objective assessment of police behavior." Id. at 171.

       2.     Discussion

       The trial court, in its findings of fact, specifically determined that nothing in the

record indicated that Knowles’s statements were involuntary and “[a]ny mental impairment

due to medication was not so severe that the defendant was incapable of understanding

the meaning and effect of his statement. Defendant’s answers were lucid, appropriate, and

cohesive. . . . He remembered specific details about . . . the robbery, the getaway vehicle,

and how he got to the hospital.” The trial court also noted that the record reflected that

Knowles was not threatened or coerced by police into making his statements. And, as

noted earlier, Knowles’s defense counsel admitted that the taped conversation between

Knowles and the detectives did not indicate “any type of inducement or fear or illegal

persuasion that the detective[s] put upon our client.” Furthermore, the record reflects that

Knowles was medicated and in some pain at the time of the conversation, yet he was able

to recount specific aspects of the robbery, and he was able to articulate a defense—that

Summers, the getaway driver, forced Knowles to commit the robbery of the convenience

store—although he later admitted that he committed the robbery because he wanted

money. Moreover, the audiotape of the interview indicated that the conversation with

Knowles lasted approximately forty minutes, and Detective Salame testified that Knowles


                                             17
had water and food in the room, and that Knowles repositioned himself during the interview

from the hospital bed to a chair.

        On appeal, Knowles argues that, because he was heavily medicated, he was

unaware of the meaning and effect of his confession, or in other words, he alleges that his

confession was involuntary.8 In considering the impact of an accused’s mental deficiency,

“[t]he question is whether the accused’s mental impairment is so severe that he is

incapable of understanding the meaning and effect of his confession.” Cornealius v. State,

870 S.W.2d 169, 175 (Tex. App.–Houston [14th Dist.] 1994), aff’d, 900 S.W.2d 731 (Tex.

Crim. App. 1995) (citing Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970);

Green v. State, 839 S.W.2d 935, 940 (Tex. App.–Waco 1992, pet. ref’d)). However, “[a]

confession will not be considered involuntary absent police coercion ‘causally related to the

confession.’” Id. (citing Connelly, 479 U.S. at 164; Walker v. State, 842 S.W.2d 301, 303

(Tex. App.–Tyler 1992, no pet.)); see Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim.

App. 1995) (“Mental deficiency is a factor, but not alone determinative, in ascertaining the

voluntariness of a confession and the waiver of the Fifth Amendment privilege against self-

incrimination.”). Here, there is no evidence of the detectives using coercive tactics to

induce Knowles in to making his statements. In addition, we do not believe that the

circumstances surrounding Knowles’s interview with the detectives are analogous to the

        8
            The thrust of Knowles’s argum ent in his second issue appears to be that the detectives should have
waited a few m ore days until interviewing him because he had recently been in a com a and was m edicated.
However, Knowles does not direct us to evidence clearly dem onstrating that the detectives’ tactics in
interviewing him were coercive so as to render his statem ents involuntary. See State v. Terrazas, 4 S.W .3d
720, 723 (Tex. Crim . App. 1999); Alvarado v. State, 912 S.W .2d 199, 211 (Tex. Crim . App. 1995). In addition,
Knowles does not point to evidence in the record indicating that he was unaware of the m eaning and im pact
of his statem ents because he was m edicated, especially considering the record shows that Knowles was able
to recall m any specific details pertaining to the incident, and he was able to articulate a defense— that
Sum m ers was the true guilty party. See Casias v. State, 452 S.W .2d 483, 488 (Tex. Crim . App. 1970) (stating
that “if the m ental subnorm ality is so great that an accused is incapable of understanding the m eaning and
effect of his confession, then it would not be adm issible”) (citing Grayson v. State, 40 Tex. Crim . 573, 51 S.W .
246, 246 (1899)).
                                                       18
examples of police overreaching outlined in Oursbourn. See Oursbourn, 259 S.W.3d at

170-71. Because there is no evidence of police overreaching or coercion, and because

Knowles’s answers were lucid and coherent, we cannot conclude that his confession to

detectives at the hospital was involuntary. See Dickerson, 530 U.S. at 434; Connelly, 479

U.S. at 164; Schneckloth, 412 U.S. at 226; Casias, 452 S.W.2d at 488; Cornealius, 870

S.W.2d at 175.

        Therefore, in reviewing the evidence in the light most favorable to the trial court’s

order, we hold that the trial court did not abuse its discretion in denying Knowles’s motion

to suppress. See Guzman, 955 S.W.2d at 89; see Gutierrez, 221 S.W.3d at 687.

Accordingly, we overrule both of Knowles’s issues on appeal.

                                      V. CONCLUSION

        Having overruled both of Knowles’s issues on appeal, we affirm the judgment of the

trial court.
                                                  ________________________
                                                  ROGELIO VALDEZ
                                                  Chief Justice

Do not publish.
TEX . R. APP. P. 47.2(b)
Delivered and filed the
19th day of August, 2010.




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