REFoRM and AFFIRM; Opinion issued February 5, 20I3




                                                     In The
                                    !Inurt 01 p1Iah3
                            FifLI! Thtrici iii (LeXa at                       t1ki
                                            No. 05-1 1-01734-CR


                                 LEONELL ROIMUGUEZ, Appellant

                                                       V.

                                  THE STATE OF TEXAS, Appellee


                         On Appeal from the 204th Judicial District Court
                                      Dallas County, Texas
                              Trial Court Cause No. F09-34429-Q


                                                OPINION
                           Before Justices LangMiers, Myers, and Richter’
                                     Opinion By Justice Richter

       A jury convicted appellant of continuous sexual assault of a child and the court

sentenced him to twentyfive years’ imprisonment. In three issues on appeal, appellant

asserts the trial court did not properly consider and rule upon the voluntariness of his

statement, and erred in admitting the statement because the statutory prerequisites for the

admission of confessions were not satisfied. The state requests that we reform the judgment

to reflect the correct statutory reference for appellant’s conviction. We reform the trial

court’s judgment, and as reformed, affirm.


  ‘The Honorable Martin E. Richter, Retired Justice, sitting by assignment.
 Voluntariness

        Following his arrest, appellant confessed to touching or penetrating the seven-year-

old victim’s anus with sexual intent or desire on a number of occasions. Appellant’s

confession was recorded.

       Appellant’s first two issues concern the voluntariness of his confession. Appellant

asserts the trial court erred in admitting the audio portion of his confession without inquiring

into the circumstances concerning the time, place, and manner in which the confession was

obtained. Specifically, appellant contends the trial court failed to conduct a hearing to

determine voluntariness under article 38.22 section 6 of the code of criminal procedure.

Appellant further complains the trial court failed to enter an order stating its conclusion as

to whether the statement was voluntarily made, along with specific findings of fact upon

which the conclusion was based. Appellant also asserts that his statement was involuntary

and improperly admitted into evidence against him. The State responds that appellant failed

to preserve these issues for our review.

       During a pie-trial hearing, defense counsel objected to the admissibility ofappellant’s

videotaped statement because it would be prejudicial to show the jury a videotape of

appellant while in handcuffs. The State agreed that it was not appropriate to show the

appellant in handcuffs, and stated its intention to proceed with only the audio portion of the

statement When the court asked whether defense counsel had any objections to the audio

portion of the statement, counsel replied:




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                     Perhaps our only objection would be just the fact that he is one, in
                     custody, and Iwo. he is handu ul led. That could rise to the issue of
                     whether or not his statement was voluntary

 in       response to the trial judge’s inquiry, defense counsel conceded appellant had been given

his Mira,idu warnings. The judge then sumrnariLed the                       issue,    Stating. “Does someone in

handcuffs believe that they have a right to remain silent? That’s the issue.” Defense counsel

responded “Yes.” When the trial judge inquired as to whether either party had researched

the issue, both parties responded in the negative. The judge indicated that he did not have

the answer either and would have to “look at some case law.” He invited the parties to do

the same. There is no indication in the record that either party followed up on the issue or

that the question was further considered. At trial, when the audio portion of appellant’s

interview was admitted into evidence, deftmse counsel stated that he had “No additional

objection.’

              Ef an issue of voluntariness is raised, Article 38.22, section 6 of the Texas Code of

Criminal Procedure requires the trial judge to make an independent determination in a

hearing outside the presence of the jury that the statement was voluntarily made. TEx. CoDE

CRIM. PRoc. ANN. art. 38.22            § 6 (West 2005); Oursbourn              t’.   State, 259 S.W.3d 159, 175

(Tex. Crim. App. 2008). But to he entitled to a hearing under article 38.22, a defendant must

first raise a fact issue as to the voluntariness of the statement. See TEx. CoDE CRIM. PRoc.

ANN. art. 38.22(6). A trial court is not required to engage in fact finding concerning the


      2
      A statement may be deemed “involuntary under three different theories: (1) failure to comply with article 38.22;
(2) failure to comply with the dictates of Miranda; or (3) failure to comply with due process or due course of law. See
O,i,sbour,, i. State, 259 S.W.3d 159, 169 (Te. Crim. App. 200%). Because appellant’s appellate argument is confined
to article 38.22, our analysis is accordingly limited.




                                                         —3—
voluntariness of oral statements unless there is some evidence raised to indicate that the

statement is not voluntary. See liernandez v. State, 978 S.W.2d 137, 140 (Tn.

App.—Austin 3998, pet. rerd). The evidence must be such as would create a reasonable

doubt as to a specific factual matter essential to the voluntariness of the statement

       Initially, we note that we have some reservations about whether appellant preserved

the issue for ourreview. As a prerequisite to presenting a complaint for appellate review, the

record must show that the complaint was made to the trial court by a timely request,

objection, or motion that stated the grounds for the ruling that the complaining party sought

from the trial court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context. TEx. R. App. p. 33.1. Failure to

timely raise the issue of voluntariness results in waiver of the issue and precludes appellate

review. See Sanders v. State, 715 S.W.2d 771, 775 (Tex. App..—Tyler 1986, no pet.).

During the pre-trial hearing, defense counsel did not cite article 38.22 or address the

language of the statute as the basis for his request. He provided no authority, either initially

upon making the argument or as a follow-up as requested by the court, to support his vague

suggestion that handcuffing a defendant while in custody renders a statement involuntary

under some unidentified theory. When the audio portion of the recorded statement was

introduced into evidence, counsel did not specifically urge any objection based on article

38.22, make clear to the court he desired a 38.22 hearing or a ruling, or seek a jury

instruction on voluntariness as provided by the statute. See TEX. CODE CRIM. PROC. ANN.

art. 38.22 §6. Nonetheless, giving appellant every benefit of the doubt, even if we assume




                                             -4--
appellant’s issues are preserved for our review, we cannot conclude the trial court erred in

failing to conduct a hearing or in admitting the statement

        Under the code of criminal procedure, a confession is involuntary if thc confessor

did not make the decision to confess of his own free will. Delao is. State, 235 S.W.3d 235,

239—40 (Tex. Crim. App. 20()7). We determine whether a confession was voluntary based

on the totality of the surrounding circumstances under which it was obtained. Green is. State,

934 S.W.2d 92,98 (Tex. Crim. App. 1996). If an issue of voluntariness is raised, Article

38.22, section 6 of the Texas Code of Criminal Procedure requires the trial judge to make

an independent determination in a hearing outside the presence of the jury that the statement

was voluntarily made. TEX.CODECRIM. PROC. ANN. aft. 38.22 §6 (West 2005); Oursbourn,

259 S.W.3d at 175. But to be entitled to a hearing under article 38.22, a defendant must first

raise a fact issue as to the voluntariness of the statement See TEX. CODE Ckflvt. PROC. ANN.

art. 38.22(6). A trial court is not required to engage in fact finding concerning the

voluntariness of oral statements unless there is some evidence raised to indicate that the

statement is not voluntary. See Hernande:         is.   State, 978 S.W.2d 137, 140 (Tex.

App.—Austin 1998, pet. ref’d). The evidence must be such as would create a reasonable

doubt as to a specific factual matter essential to the voluntariness of the statement

Oursbourn, 259 S.W.3d at 177.

       In the instant case, appellant did not raise any doubt as to a specific factual matter

essential to the voluntariness of the statement Instead, the only point appellant raised was

an easily resolved question of law— whether the use of handcuffs while a defendant is in




                                            -5-
custody, in and of itself, tenders any statement made involuntary. But the mere fact that

appellant was handcuffed does not even constitute interrogation, much less coercion.      (.J
Rhode Island v. Innis, 446 U.S. 291,301—02(1980) (handcuffing suspect and placing him

in patrol car was act attendant to arrest and custody, rather than interrogative). And being

handcuffed does not alone serve to show that a suspect’s will was overborne. See Bell v.

State, 169 S.W.3d 384, 391—92 (Tex. App.—Fort Worth 2005, pet ref’d) (eight hours

questioning while in handcuffs and shackles did not render confession involuntary); see also

Harris v. Dugger, 874 F.2d 756,762(11th Cir. 1989) (hokling confession voluntary despite

handcuffs throughout six hour interrogation).

       A claim of involuntariness under the code of criminal procedure additionally

encompasses subjective involuntariness claims that do not turn solely on police

overreaching. Oursbourn, 259 S.W.3d at 172. Thus, under a section 6 inquiry, courts

consider factors such as the suspect’s youth, intoxication, mental retardation, or other

disability. Id. at 172—73. No such circumstances are present here. To the contrary, appellant

was Mirandized and indicated he understood those rights. The recorded statement reflects

that the statement appellant gave was the product of his own free will, particularly since he

again described his conduct in an incriminatory way while on the witness stand during trial.

Under these 1
            circumstances we cannot conclude the trial court erred in failing to proceed

under article 38.22 or in admitting the statement Appellant’s first two issues are overruled.




                                            -6-
Right so Tenninate Interview.

       In his third issue, appellant argues his confession was inadmissible because be was

not advised of his right to terminate the interview in accordance with TEL CODE ClaM.

PRoc. ANN. art. 38.222 (a) (5) (West 2005). The record, however, reflects otherwise.

       The recorded statement reflects that appellant was admonished in accord with the

statute prior to questioning. In fact, the detective took the additional step of making sure that

appellant understood the meaning of “terminate.” Appellant responded affirmatively, and

described the term as meaning he could stop the interview when he wanted to. The detective

then reinforced appellant’s understanding stating “That’s right. You don’t have to talk to me

if you don’t want to.” Because the record reflects that the requisite warnings were given, the

trial court did not err in admitting the statement. Appellant’s third issue is overruled.

Refonnation of the Judgment

       The State requests that we reform the judgment to reflect the correct offense for

which appellant was convicted. We have the power to correct a clerical error in a judgment

to properly reflect what occurred in the trial court as shown by the record. See TEx. R. APP.

p. 43.2(b); French v. State, 830 S.W.2d 607,609 (Tex. Crim. App. 1992).

       Here, the judgment states that appellant was convicted under ‘22.02 Penal Code.”

The record reflects that appellant was convicted for the offense defined in section 21.02 of

the Penal Code. Therefore, we reform the judgment to reflect that appellant was convicted

under section 21.02 of the Penal Code.




                                             —7—
As reformed, the trial court’s judgment is affirmed.




                                                T1cE




Do Not Publish
TEX. R. App, P.47

11 1734F.U05




                                          —8—
                                (mirt uf 4Trala
                        Fift1! Jhtrirt tf Lixa at Jalla
                                       JUDGMENT
LE()NELL RoDRIGUEZ, Appeihint                        Appeal from the 204th Judicial District
                                                     Court  of Dallas County, Texas. (Tr,Ct.No.
No. 051 lMl734CR              V                      F0914429Q L
                                                     Opinion (lelivered by Justice Richter.
TFIE STATE OFTEXAS. Appellee                         Justices l.ang-Miers atici Myers
                                                     participating.


         Based on the Court’s opinion of this date, the judgment of the trial court is REFOR1’1EI)
to reflect that appellant was convicted under section 2 1 .02 of the Texas Penal Code As
reformed, the judgment is AFFIRMED.




Judgment entered February 5, 2013.




                                                    MA,KTIN RICHT
                                                    JU!TlCE
